In September, a rather crude video titled “Innocence of Muslims” provoked riots across the Muslim world, resulting in several deaths, many more injuries, and considerable property damage. Almost seven years earlier, the publication in Denmark and elsewhere in Europe of twelve cartoons caricaturing Mohammed resulted in similar violence and an even greater number of deaths in the Muslim world. Several months after the “Danish cartoons,” Pope Benedict XVI caused a violent reaction in the Muslim world when, in a speech at a university, he quoted a 14th-century Byzantine Christian emperor who said that Mohammed had brought “things only evil and inhuman, such as his command to spread by the sword the faith he preached.” And back in 1989, Ayatollah Khomeini of Iran issued a fatwa calling for the killing of the British novelist Salman Rushdie because of his book The Satanic Verses, which Khomeini claimed was anti-Islamic and blasphemous. That fatwa was recently renewed by Iran’s current leader.
Responses to these events have run the gamut. Some people are outraged by the violent reactions but not by the provoking speech, video, or cartoons. Some are outraged by both. And some are outraged primarily by the speech, video, and cartoons, and call for banning them.
Hillary Clinton apparently falls in the second category. In a taxpayer-funded presentation in Pakistan, she vigorously denounced the video but maintained that it was nonetheless constitutionally protected free speech. Bret Stephens pointed out in the Wall Street Journal that Secretary Clinton apparently had no such negative reaction to the Broadway musical The Book of Mormon, which surely mocks Mormonism; nor did she or anyone else in the Obama administration denounce the recent exhibition in New York of Andres Serrano’s Piss Christ, a photograph of a crucifix immersed in Serrano’s urine that was originally exhibited with funding provided in part by U.S. taxpayers through the National Endowment for the Arts. President Obama did, however, denounce Innocence of Muslims in his speech to the United Nations General Assembly.
Of course, there is no inconsistency between condemning speech or artwork and advocating its protection as free expression. Not everything that legally can be said should be said. Indeed, my view of the landscape of expression is that a huge amount of what is said should not be said. One should merely note the strange selectivity in what members of the current administration choose publicly to condemn.
The Organization of Islamic Cooperation (OIC), which represents 56 Muslim countries, has decided that condemnation is not enough. It has called for a ban on expression that insults Mohammed. And some Muslims in the United States have urged adoption of prohibitions of blasphemy. In the words of the OIC’s secretary general: “Freedom of speech is one thing, but usage of your freedom should not be to offend others or advocate hate speech or provoke people to violence.”
What does the right of freedom of speech demand with respect to the expressions contained in the video, the cartoons, the pope’s speech, and Rushdie’s book? Does it protect speech that mocks, insults, derides, or incites? The International Covenant on Civil and Political Rights includes the right to freedom of speech. Because most of the members of the OIC are signatories to the ICCPR, one must assume that they do not believe anti-Muslim expression falls within the ambit of the right (we leave aside the alternative hypothesis that their subscription to the ICCPR was only for show). Is anti-Muslim and similar expression within the right of freedom of speech, as Secretary Clinton and President Obama publicly proclaimed, or is the OIC correct that the freedom does not extend to speech that is offensive, hateful, or inciting?
Among the vast majority of nations that purport to support freedom of speech, opinions on this question differ considerably. Many of those countries have laws prohibiting speech that expresses hatred of various groups, including religious groups. Indeed, the ICCPR itself, along with its assertion of the right of freedom of expression, in Article 20(2) prohibits “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.” The question is, Can a robust freedom of speech coexist with broad prohibitions of hate speech, such as that contained in the ICCPR? The American view, reflected in First Amendment jurisprudence, is that it cannot. This is one more case of American exceptionalism. But is the American view justified?
#page#One possible justification for bans on expression that ridicules or expresses contempt for religious, national, ethnic, or racial groups is that members of the mocked groups will be offended, perhaps profoundly, and suffer considerable emotional distress. The U.S. Supreme Court, however, has been quite firm in rejecting offense as a ground for restricting expression, at least where the offended are not a captive audience. In 1971, in Cohen v. California, the Court held that freedom of speech entitled Mr. Cohen to wear in public a jacket that displayed a vulgar expression, noting that “one man’s vulgarity is another’s lyric.” In 1988, in Hustler Magazine v. Falwell, the Court denied, on free-speech grounds, compensation for intentional infliction of emotional distress after Hustler published a depiction of the Reverend Jerry Falwell in an incestuous sexual relation with his mother. The Court noted that George Washington was portrayed as an ass in an early cartoon and that graphic depictions and satirical cartoons continue to play a role in public debate. And the same year, in Boos v. Barry, striking down a District of Columbia ban on signs outside foreign embassies that insult their governments, the Court stated that, in public debate, “our citizens must tolerate insulting and even outrageous speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.” Finally, in 1978, in Collin v. Smith, the Court of Appeals for the Seventh Circuit essentially held to be a violation of freedom of expression a Skokie, Ill., ordinance outlawing demonstrations and other expressions that intentionally incite hatred of persons based on race, national origin, or religion. The ordinance had been adopted to prevent a march through Skokie by the American Nazi Party. Skokie, a suburb of Chicago, had a high number of Holocaust survivors among its citizens, and it was foreseeable that many might suffer psychic distress because of the march. Nonetheless, the circuit court held that the march had to be allowed, and the Supreme Court refused to review the decision.
One does not have to deny the pain that someone might suffer by being publicly mocked, or having his group or ideas publicly mocked, to see that bans on expression predicated on protecting people from offense would be a major threat to freedom of expression. An expression of the view that Islam is a false religion would no doubt offend some, perhaps many, Muslims. But an expression that Christianity is the true religion would by implication assert that Islam is a false one. Any assertion of a proposition is an assertion that its denial is false. No public discussion of any sort could take place if those whose assertions are denied by others could invoke “offense” to silence their opponents.
Jeremy Waldron, a law and political-theory professor at NYU and Oxford, has recently published a book, The Harm in Hate Speech, in which he makes a case for banning such speech. His definition of hate speech parallels that of the ICCPR, and he cites approvingly the similarly worded prohibitions in Canada, Denmark, Germany, New Zealand, and the United Kingdom. But he makes clear that the harm in hate speech is not its offensiveness. Rather, the harm is that it undermines the belief that one will be accorded equal standing and be justly treated by society, and that one will not be discriminated against, humiliated, or terrorized by other citizens. For Waldron, a well-ordered society conveys assurances to its citizens that these things will not happen. Hate speech undermines those assurances.
How exactly does Waldron envision the route by which hate speech accomplishes this? Although I do not find him clear on this point, there are really only two ways that hate speech can undermine one’s sense that one will be regarded as a citizen with equal status and will be treated fairly. One way is for hate speech to convey information to its targets that the author of the speech is hostile to or has contempt for them. In other words, when one sees hate speech directed at one’s group, one has information about others’ attitudes that perhaps one did not have before. The harm is essentially caused by discovering what others think. If that is correct, it is surely a dubious basis for prohibiting hate speech. For the prohibition does not banish the attitude conveyed but only keeps its existence from being known. The ban may produce a sense of security, but it will be a false sense.
#page#More likely, what Waldron has in mind is that hate speech may persuade others who previously did not despise the target group that the group deserves to be despised. In other words, what undermines the assurance of equal status is fear of hate speech’s ability to change others’ opinions. This is an understandable fear — especially if one believes that all instances of such speech will be false assertions. If, for example, one believes that all religions are equally deserving of respect, then one will see little value in giving people the chance to persuade others to the contrary. Suppose, however, that one believes that the tenets of Islam are both false and dangerous, and wishes to persuade others of that. Would Waldron deny such a person the opportunity to do so? Or, to take a different kind of example, if someone believes that the Roma are more likely to engage in thievery than other groups, would Waldron deny him the opportunity to persuade others of this view? One would have to be awfully confident that no group or religious views can rightfully be disparaged in order to advocate so broad a ban on expression. This is “political correctness” in its most ominous form.
Concern about the Stalinesque tendencies of hate-speech bans is far from paranoid. Consider what happened when Canadian Mark Steyn published an article expressing grave concern over the political and social implications of European demographics, which show a declining birth rate for native Europeans and a high birth rate for Muslim immigrants. Steyn was hauled before the British Columbia Human Rights Commission and charged with hate speech. Although Steyn eventually won his case, a Christian minister in Alberta, who made public comments critical of homosexuality, was convicted of hate speech by Alberta’s commission and ordered never to say anything “disparaging” about gays, presumably even in his sermons.
My point is not that Waldron would approve of these uses of hate-speech prohibitions. My point is that laws aimed at preventing hate speech are inevitably going to be used by groups to muzzle the speech of those whose policies they oppose. Labeling your political adversaries as racists, Islamophobes, or homophobes and charging them with “hate speech” crimes is just too convenient a ploy to be resisted if it is available.
If its possible persuasiveness is not a good reason for banning hate speech, how about its ability to stir people to violence? Is that not a sufficient reason to ban it? The answer in the U.S., according to the Supreme Court, is “No,” at least in most instances. The Court has essentially put speech that would threaten violence or incite others to violence into four categories. The first is “fighting words,” so called because they are words that are likely to cause the audience to assault the speaker. Essentially, fighting words as the Court conceives of them are insults delivered face to face. The category was first announced in 1942 in the case of Chaplinsky v. New Hampshire, in which Chaplinsky called someone a “goddamned racketeer” and a “damned Fascist.” The Court has never once in the 70 years following that case upheld any other conviction for using fighting words. Instead, it has narrowed that category to the vanishing point.
The second category, which is closely related, is the so-called hostile-audience category. The leading case here is Feiner v. New York, decided in 1951. Feiner was making a speech on a street corner and a crowd of about 80 persons had gathered. Some in the audience became agitated and appeared to be on the verge of attacking Feiner and possibly others in the audience. There were only two police officers present, and because they did not feel they could control the crowd if it turned violent, they twice asked Feiner to stop speaking. He refused to do so and was arrested. He was convicted of disorderly conduct, and the Court upheld his conviction.
Like the exception to freedom of speech for fighting words, the exception for hostile audiences is meant to prevent violence. The difference between the two categories lies in the fact that in cases of hostile audiences, the speaker need not have insulted the audience, and the audience’s predicted hostility need not be directed at the speaker. Otherwise, the two exceptions are virtually identical. Moreover, as with fighting words, the exception for hostile audiences has never been extended beyond the seminal case. The Court has overturned every conviction after Feiner’s that was premised on the audience’s becoming hostile, placing the principal obligation to prevent the violence on the police rather than on the speaker. So, like the fighting-words exception, the hostile-audience exception is more theoretical than real.
#page#A third category of exception is that of true threats. If a speaker threatens illegal violence, that speech is not protected. But as the Court stated in Virginia v. Black, the speaker, for his threat to be a true threat, must intend to threaten. It is not enough that someone feel threatened by the speech if there is no such intent.
Some expressions of hate speech as Waldron defines it might function as fighting words when uttered face to face; some might stir an uncontrollable audience to violence; and some might be uttered with the intent to threaten violence. Most will not fall into any of these three categories.
The final category of speech that can lead to violence, and for that reason is excepted from freedom of speech, is advocacy of violence. Many of the early freedom-of-speech cases dealt with advocacy of illegal acts. The Court originally adopted the “clear and present danger” test for determining when advocacy could be punished without falling foul of freedom of speech. The Court tweaked that test substantially in the 1950s to deal with advocacy of revolution by the Communist Party. Finally, in 1969, in the case of Brandenburg v. Ohio, the Court settled on a formulation of the test that forbade punishment for advocacy of illegal acts unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The test raises many questions, such as when lawless action is “imminent,” and how likely “likely to incite” has to be. The most pertinent question about this test is whether it requires an intent to incite. The lower courts and most commentators have read “directed to” as an intent requirement, even though the fighting-words and hostile-audience exceptions do not require that the speaker intend to incite violence. In 2010, however, the Court held, in Holder v. Humanitarian Law Project, that giving legal advice for the peaceful speech activities of a terrorist organization can be prohibited as a form of material aid to terrorism, even though those giving the advice do not intend to promote terrorist acts. That holding may be evidence that the Court is moving away from a requirement that one intend to produce violence and toward a requirement that one merely know that one’s speech is likely to produce it.
If that is indeed what the Court is doing, is it a welcome doctrinal development? On the plus side, such a change would align the advocacy doctrine with the fighting-words and hostile-audience doctrines. Mere knowledge that one’s expression is likely to provoke a violent reaction would be sufficient for excepting that expression from freedom-of-speech protection. The Court might even change the exception for threats to square it with these other doctrines by eliminating the “intent to threaten” requirement in favor of a “likely to produce fear” requirement. Moreover, beyond doctrinal consistency, such changes would focus on the real harms of the expressions: the likelihood of violence and intimidation.
There is a downside, however, and it is huge. For the more an audience is prone to react violently to expression it does not like, the more will speakers have to desist from speech or from other kinds of expression. Consequently, Muslims, by reacting violently, will be able to silence criticism. They will have a “heckler’s veto” over expression they dislike. Only peaceful groups will be subject to being mocked. It will, of course, sometimes be prudent to refrain from expression that might stir Muslims to violence. Yale University Press, in publishing a book about the Danish-cartoons controversy, declined to republish the cartoons, a decision that it deemed prudent but critics labeled cowardly. But refusing to exercise a right is one thing, whereas not having that right is a quite different matter. Muzzling speakers because of the criminal tendencies of others is a major threat to freedom of expression. For this reason, it is a road we should not go down. If George Washington could be called an ass, we should surely have the right to call those who act like asses that.
Let me conclude, however, on a less triumphant note. When one believes one is in possession of the truth, it is natural to wish to silence those who espouse error, especially when the truth one possesses is as fundamental as religious truth. Extremist Muslims no doubt fall into this category. For them, eradicating blasphemy is far more important than freedom of expression. Persuading them to the contrary cannot be accomplished by political philosophy, but only through a change of culture or theology.
– Mr. Alexander is Warren Distinguished Professor of Law at the University of San Diego.