Countless words have been spilled over the Danish newspaper JyullandsPosten‘s publication last September of 12 cartoons commenting on journalistic self-censorship and Islamic beliefs, including several that caricatured the prophet Muhammad. Surely, everything has been said by now.
Yet the controversy rages on: Is this an easy case for freedom of expression? Should there be no acquiescence in demands by some Muslims, backed up with lethal violence and threats, to suppress the cartoons? Or should sensitivity to intense religious feelings dictate self-censorship, or even government censorship, in the interests of saving lives and calming outrage?
Here are some basic facts and principles to help guide the discussion:
Basic Principles: Violence and Free Expression
- Free speech, especially on matters of politics and religion, is essential to democracy. We can’t have a free society if threats of violence (or actual violence) succeed in suppressing political or religious viewpoints – including satiric or “blasphemous” ones.
- Free speech is not “absolute”: every society has restrictions. Some European democracies prohibit hate speech; the U.S. does not. We do have other exceptions to the First Amendment – for example, for “obscenity,” “fighting words,” and actual incitement to violence.
- What defines actual incitement? The words must be both calculated and likely to produce “imminent lawless action.”1 A good analogy is the familiar one of falsely shouting fire in a theater and causing a panic, because those in the audience are likely to react immediately, without time to reflect.2
- Insulting or offensive speech that triggers a violent reaction, by contrast, does not qualify as incitement. It isn’t the speakers who are causing the danger; instead, it’s the violent protesters. If violent reactions were a justification for censorship, then the most violent among us would be able to dictate what art, information, or ideas would be allowed.
Defamation and Blasphemy
- “Group defamation” – false and insulting statements about a racial, ethnic, or religious group – was once punishable under U.S. law. But courts now recognize that this sort of exception to the First Amendment cuts too deeply into the free expression needed for democracy to work. The standards are vague and shifting – government censors would have a hard time agreeing on what ideas, images, or jokes about a religious or racial group are sufficiently insulting to be prohibited.
- Official restrictions on “blasphemy” or “sacrilege” infringe both free speech and freedom of religion. They inevitably discriminate against minority religious groups in favor of the dominant religion. As the Supreme Court explained years ago, they set the censor “adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies.”3
The Argument for Private (or Self-) Censorship
- A New York Times op-ed recently argued that although governments should not censor expression that’s offensive to religious groups, the media should exercise editorial discretion and self-censor. In fact, the author said that this kind of self-censorship “is not just an American tradition, but a tradition that has helped make America one of the most harmonious multi-ethnic and multi-religious societies in the history of the world.”4
- It is true that calls for self-censorship are frequent in the West – they are not unique to Muslims. Many groups in American society bring pressure to bear against TV and other media to avoid ethnic slurs, racist caricatures, homophobic stereotypes, and other insults – that is, to self-censor.
- Although this kind of self-censorship doesn’t violate the U.S. Constitution – indeed, editors have a First Amendment right to decide what not to publish – the desire to avoid controversy for fear of offending any pressure group can lead editors to be overly cautious, can stifle creativity, and can end up silencing debate.
- For example, “The Last Temptation of Christ” offends some Christians and “The Merchant of Venice” offends some Jews, but both are important works that contribute to our knowledge of history, including the history of religion and of religious intolerance.
- Editorial self-censorship is particularly problematic when it comes to questions of religion. Just as there are many variations on Jewish or Christian doctrine, so there are differences among Muslims on matters of belief. While some say that any image of Muhammad is sacrilegious, that image is found throughout Islamic and Arabic art.5
- Most U.S. media declined to publish any of the Muhammad cartoons, even though they have become a major international news story. Whatever the value of self-censorship, the public also needs to know what the debate is about. Widespread self-censorship by the U.S. mass media arguably encourages the violent protesters and isolates those few editors who have thought it their responsibility to publish the cartoons.
- Students in the U.S. are filling the gap by printing articles pro- and con-, sponsoring forums on campus, and publishing one or more of the cartoons. At the University of Illinois, student editors were suspended for doing so. At Drexel University, they were deterred by threats of violence.6
Should Highly Offensive Speech Be Silenced?
- Some have argued that the Muhammad cartoons are as offensive as anti-Semitic slurs, or Holocaust denial. Although offensiveness is always in the eye of the beholder, these comparisons are misleading. The cartoons were not aimed at ethnic stereotyping and did not deny historical facts. Instead, they sought to caricature political and religious beliefs.
- One reporter observed that initially, Danish Muslims found the cartoons offensive but bland. The two most controversial cartoons – one showing the prophet with a bomb in his turban and the other, the prophet calling out to suicide bombers, “Stop, we’re running out of virgins” – could be read as “comments on the manipulation of the faithful” by extremists. This writer suggested that it was really radical imams who were offended, and who circulated these cartoons and others throughout the Middle East in order to provoke demonstrations.7
- Even the most highly offensive speech, however, is probably better exposed and refuted, than driven underground. To paraphrase Justice Louis Brandeis: sunlight is the best disinfectant.8
*This article previously appeared on the Free Expression Policy Project, which existed from 2000-2017.
NOTES
1. Brandenburg v. Ohio, 395 U.S. 444 (1969).
2. The example was given by Justice Oliver Wendell Holmes in Schenck v. United States, 249 U.S. 47, 51 (1919).
3. Burstyn v. Wilson, 343 U.S. 495, 504-05 (1952). The case involved Roberto Rossellini’s film, “The Miracle,” a retelling of the Christ story which leaders of the Catholic Church said was sacrilegious.
4. Robert Wright, “The Silent Treatment,” New York Times, Feb. 17, 2006, A23.
5. Andrew Maykuth, “Muhammad’s Image is Far From a Rarity,” Philadelphia Inquirer, Feb. 9, 2006, http://www.philly.com/mld/inquirer/news/special_packages/cartoons/13825286.htm.
6. Monica Davey, “Student Paper Prints Muhammed Cartoons, and Reaction is Swift,” New York Times, Feb. 17, 2006, A14 (describing punishment of student editors at the University of Illinois). This article reports that student papers at the University of Wisconsin, Harvard, Northern Illinois University, and Illinois State also published the cartoons. Editors at Drexel University published an editorial describing the threats that caused them to change their minds. “Editorial: Freedom of the Press?” The Triangle Online, Feb. 10, 2006, www.thetriangle.org/media/paper689/news/2006/02/10/EdOp/Editorial.Freedom.Of.The.Press-1608362.shtml?norewrite&sourcedomain=www.thetriangle.org&page=2
7. Jane Kramer, “Comment – Images,” The New Yorker, Feb. 27, 2006, 25-26.