Preliminaries
Democracy in its modern, liberal formation is a young phenomenon. It was crystallized only after the Second World War. The idea that governments would be elected through popular vote alarmed and frightened the nineteenth-century decision makers. Now we are so accustomed to the idea of democracy that we tend to forget how young and fragile it is.
One of the problems of any political system is that the principles that underlie and characterize it might also, through their application, endanger it and bring about its destruction. Democracy, in its liberal form, is no exception. Moreover, because democracy is a relatively young phenomenon, it lacks experience in dealing with pitfalls involved in the working of the system. This is what I call the “catch” of democracy.
Some explanation is required to clarify the meaning of “the catch of democracy.” Any political system—theocratic, liberal, Marxist, Leninist, Maoist, etc.—is based on a given set of principles. The working of these principles is designed to promote values that those systems hold dear. However, these same principles might endanger the very foundations of the political systems. The case is clear when authoritarian systems are pondered. People want to free themselves and break the coercive bonds. But the same risk is also involved in the working of liberal-democratic principles.1
Like every young phenomenon, democracy needs to develop gradually, with great caution and care. Since democracies lack experience, they are uncertain with regard to the appropriate means to be utilized in order to fight down explicit antidemocratic and illiberal practices. Quite surprisingly, literature about how democracies should cope with violence and political extremism is scarce. Abundant literature exists about the pros of democracy, the value of liberty, the virtue of tolerance.2 Much less in comparison is devoted to the intricate issue of the appropriate boundaries of liberty and tolerance.
Indeed, it seems that liberals are not too happy to talk about the limits of democracy. They feel much more comfortable speaking about the principles that underlie democracy and devote much less detailed discussion to the exceptions to the rules. Generally speaking, liberals (many of whom are consequentialists) prefer to speak of the general rules—liberty, tolerance (Alf Ross, Alexander Meiklejohn, Franklin Haiman, Frederick Schauer, Lee Bollinger), rights (Hugo Black, Aryeh Neier), equality (Ronald Dworkin), truth (John Stuart Mill), and justice (John Rawls).3 They all wish to promote liberty and tolerance; to urge governments not to apply partisan considerations that affirm principally their own interests and conceptions; to seek ways to accommodate different conceptions of the good; and to reach compromises by which the system will respect variety and pluralism and at the same time continue to uphold the rationale of democracy, which may be summarized by a twofold dictum: do not harm others; promote respect for others.
This volume is dedicated to the question of boundaries: how should democracies cope with antidemocratic forces that pose a challenge to the system? How should we respond to threats that undermine democracy and at the same time retain our values and maintain our commitment to democracy and to its underlying values? This is a compelling task, because it is saturated with fears as to how we can find appropriate answers to political extremists and violent movements that do not see themselves under any obligation to uphold the democratic principles and values: Should we adopt violent principles to fight down terrorism and violence? Could we adopt such means and still be considered democratic? How could we be certain that democratic means will be sufficient to subdue violent movements whose motto and guiding principle is to break all rules of the game? How are we to prevent the slippery slope syndrome, that is, make sure that the antidemocratic means we employ in our struggle against antidemocratic forces will not be utilized in other spheres of life that are democratic in nature?
These are troubling and very real questions indeed. They require a thorough examination and careful probing. This volume is taking a major step in tackling them. Its design is both interdisciplinary and comparative, offering philosophical, political, historical, and legal perspectives of scholars from four democracies who analyze how their respective countries try to cope with and find answers to attacks made against them by hate groups, political extremists, terrorists, and other radical movements. The scholars are from the United States, Canada, Israel, and the United Kingdom. They all participated in the international conference “Ethics, Law, and Communication in an Era of Political Violence and Extremism: An Examination of the Boundaries of Liberty and Tolerance in Liberal Democracies,” held at the University of Haifa in January 1997. This is a selection of the papers presented at the conference.
In assembling this collection, I organized the contributions around six main topic areas: (1) The first two essays (Schauer and Feldman) focus on the dilemmas embodied in the notion of tolerance, forcing us to think about the cost of free speech. (2) The next two essays (Fiss and Cohen-Almagor) discuss the issue of incitement as distinct from mere advocacy, reflecting in the main on the legal situation of the United States and Israel. (3) Then Chisick and Lehman-Wilzig discuss the challenge of religious extremism to liberal democracy. (4) Three Canadian writers address the problematics of hate speech, discussed from a philosophical perspective (Sumner) and a legal, civil libertarian perspective (Cotler and Moon). (5) The intricate issue of free communication, freedom of the media, especially with regard to the coverage of violent extremism and terrorism, is discussed by Magnet, Boeyink, and Lambeth. In particular, the relationships between media and terrorism are examined under the heading of accountable media, aiming to change the motto “terrorism and the media” to “media vs. terrorism.” (6) Finally, the last two essays touch upon the regulation of free speech in the international community. Goldberg examines the legal aspects as depicted in various international documents and treaties, while Jaffe analyzes the intricate question of whether the Internet should be left free and uncensored or should be regulated to prevent its abuse by hatemongers and pornographers.
The articles are written from a variety of methodological, political, and ideological perspectives. Since I felt it important to bring several studies to bear on each of these central topic areas, I had to restrict the scope of the collection and leave out some excellent pieces that could have improved it but at the same time would have diverted the discussion to other matters. In particular, I have not included essays that deal with the broad notions of tolerance and culture, with historical and psychological explanations of the act of assassination, and with sociological schisms that tear democracies apart. Painfully, I had to resist the temptation of including further critical essays that could have enriched the discussion even further and increased awareness of additional problems democracies are facing.
The international conference that was held in Haifa commemorated the first anniversary of the assassination of Prime Minister Yitzhak Rabin. It was opened by Mrs. Lea Rabin, who spoke of the legacy of her husband. Excerpts from her speech begin this volume. The tone of her words is emotional, rather than academic, providing the personal outlook of a woman whose most beloved person paid the highest price for the pursuit of his beliefs and for the promotion of peace. Her speech addresses the issue of incitement, which is discussed further and developed in the ensuing essays of Fiss and myself. Mrs. Rabin refers to the assassin as “the pistol” and blames those who legitimized the murder of her husband. Words can be harmful. Words can be deadly. The atmosphere that was generated prior to the assassination of Prime Minister Rabin induced Yigal Amir to see murder as a rightful solution for changing the trend, which, in his view, was detrimental to the future of the people of Israel in Eretz Israel.
Tolerance and Its Costs
Frederick Schauer, in his essay on the cost of communicative tolerance, depicts two different pictures of rights: One holds that we utilize rights to keep bad people from doing bad things. The other picture is Kantian, conceiving rights as limits on the means that may be used to pursue certain ends. He recognizes that rights have costs and that someone must pay for them. Moving from the general to the particular, with regard to the right to free expression Schauer acknowledges that sometimes a speech act influences the behavior of a person other than the speaker. Whether a speech act has influenced behavior in a particular case is an empirical and not a philosophical question, and so too is the effect of a speech act on the behavior of a population as a whole. Thus, we can measure the effect of a speech act on a population's behavior and can measure the extent to which certain speech acts increase the probability that a population of people hearing those speech acts will commit violent acts. Schauer argues that although it is implausible to suppose that a speech act is both the necessary and sufficient condition for the commission of an act of violence by a hearer, it is equally implausible to suppose that a speech act can never increase the likelihood, for an individual or for a population of individuals, that an act of violence will be committed. In any event, this is an area of empirical examination, and it remains a deficiency of the existing free speech literature that it has largely refused to use or engage in empirical research on communication effects.
Schauer maintains that when speech acts have the empirical effect just described, people should be held legally or morally responsible for all consequences to which their acts may empirically have contributed. Although we may hold the manufacturers of firearms or the sellers of alcoholic beverages legally and morally responsible for the foreseeable misuse of their products by other agents, in a system recognizing a strong free speech principle we typically assign the legal and moral responsibility to the agent committing the violent and unlawful act, and not to the speaker whose words may have contributed to the outcome.
Schauer emphasizes the cost that society is required to pay when it tolerates harmful speech. He argues that a society may find itself tolerating a larger number of violence-fostering speech acts than it would if no free speech principle were in place. Consequently, when a free speech principle is present, a society may find itself tolerating more violence than it would were no free speech principle in place. In this sense, tolerating violence-fostering speech acts involves a social cost. Typically, this cost has been borne most heavily by the victims of the conduct that the speech may have encouraged, but it is by no means as necessary as people have thought that this be the case. If we were thinking about the cost of any other public good, we would think creatively about how the cost should be allocated. Schauer rightly contends that if free speech is a public good, and if it has a cost, then we ought to think as broadly about the allocation of its cost as we do about the allocation of the cost of more tangible public goods. Among the ways suggested to reallocate the cost of communicative tolerance are victim's compensation programs, subsidized media liability insurance, and anticipatory increased security to accommodate the expected increase in political violence that comes when speech urging political violence is protected from liability.
I wish to take issue with one peripheral theme raised in Schauer's fascinating discussion. Early in his essay, Schauer mentions the Skokie decision, which he defends. His view on this controversy is characteristic of his consequentialist approach that is popular among justices and philosophers, especially in the United States. What is striking about this approach is that consequentialists are willing to endure the costs of offensive speech now because of speculative fears of the consequences of restriction. Hence, American liberals justify the Skokie decision of the Illinois Supreme Court,4 saying that it helped the cause of fighting racism in the United States and increased the awareness of the general public regarding the Holocaust; yet at the same time they show little or no consideration of the actual harm that might have been inflicted on the Holocaust survivors of Skokie if the Nazis had taken the option granted them to exercise (or rather to abuse) their First Amendment right and march through this Jewish suburb of Chicago. Liberals warn that if we restrict speech, this might lead to an increasing tendency toward law-and-order legislation (Anthony Skillen); to the creation of undergrounds (Norman Dorsen); to abuse of power on the part of the government (Thomas Scanlon and Frederick Schauer, here and in his previous writings); or to a less tolerant society (Lee Bollinger).5 My own thesis is that Nazis should not be allowed to march in Jewish neighborhoods because such marches are calculated to harm a designated group of people who cannot avoid being exposed to serious psychological offense, which is morally on a par with physical harm. The Skokie Jews were put in such a position that in either case they would have been offended: if attending the demonstration, they would have had to see the swastika, the Nazi uniform, etc.; and if not attending, it would have been as if they were allowing Nazism to pass, to pass in their own vicinity.6 The cost of the right of exercising (or rather exploiting) basic freedoms that is granted to the Nazis in such circumstances is, in my opinion, too high for the Jews, especially for the Holocaust survivors. Note that I am not saying that Nazis should be banned tout court from marching in centers of towns in the United States. It is the combination of the content and manner of the speech, the evil intention of the speaker, and unavoidable circumstances that warrants the introduction of sanctions.
If we look at the legal tradition of the European country with the longest democratic tradition, England, we could assume that a Skokie-like situation would not have occurred there. The “preservation of public order” rationale accompanied by the well-recognized need to prevent “breach of the peace” would probably serve as convincing trump cards not to allow racist marches in Jewish neighborhoods. As David Feldman argues in his essay, public order is perceived to be more important than public expression, particularly when either the controversial substance of the expression or its manner is likely to provoke violence or disturbances.7 English law speaks the language of public order, not freedom.
In his essay, Feldman also raises questions related to the cost of tolerance. The article opens with the question of how the peacekeeping organs of the state should respond when people clash over the public expression of contested views or manifestations of controversial lifestyles. Feldman acknowledges that such a problem cannot be solved peacefully without tolerance: either the parties must voluntarily tolerate each other, or (if the strength of their commitments makes this impossible) state officials must enforce tolerance on one side or the other or suppress the practices or public expressions of all. While Schauer draws upon moral and political philosophy in discussing what should be the appropriate scope for tolerance, Feldman's essay approaches the problem from an institutional perspective.
Feldman's essay uses public-order law in England, Wales, and Northern Ireland to show how different factors affect the assessment of the legitimacy of the balances that are struck between competing rights and interests. Feldman particularly sets the idea of toleration in the context of British social history and aspects of international human-rights law and suggests some procedural criteria, concerned with the form of the legal rules and institutions governing public order by which the justifiability of state action to enforce tolerance should be assessed. He then evaluates systems for controlling public protest in England, Wales, and Northern Ireland in the light of those conditions and proceeds by arguing that official discretion must be legitimized by the constitutional position of decision makers, by appropriate and adequately determinate decision-making criteria, and by appropriate mechanisms for accountability. Rights should be given weight in public-order decision making, but the formulations of the rights and the weights attached to them will, properly, vary significantly between jurisdictions by reference to local social and cultural conditions. Feldman maintains that we must consider the nature of the necessary conditions for sustaining a commitment to tolerance, as a step toward institutionalizing them in the decision-making processes of the state. Only in this way can legislatures, police forces, and judiciaries find sound bases for making decisions when the limits of tolerance are strained by the desire of some citizens to express unpopular views or to protest against perceived injustices in ways that interfere with the lawful activities of other citizens.
Advocacy vs. Incitement
Following David Feldman's reasoning, one of the tasks of democratic theory is to institutionalize reasons for citizens to maintain a commitment to the values of democracy by excluding incitement from the protection of the Free Speech Principle. The essays of Owen Fiss and myself discuss this special form of speech and warn against its harmful consequences. Both of us draw upon John Stuart Mill's corn-dealer example in explaining what incitement is. Both of us discuss the American and Israeli situations, with a different focus: while Fiss concentrates his attention on the American stance, more particularly on the impact of the Brandenburg ruling on the American literature and jurisprudence (the “advocacy” vs. “incitement” distinction) and less on the Israeli situation, I mainly speak about Israel and refer to a much lesser extent to the United States.
Fiss argues that the religious and political teachings that appear to have played some role in the mind of Prime Minister Rabin's assassin could not be fairly considered an incitement, at least as the Brandenburg Court understood that term. To his mind, the tragedy of Rabin's assassination gives us a powerful reason to reexamine the rule of Brandenburg in protecting general advocacy of violence. Fiss asks whether the advocacy of violence should be protected because of its linkage to radical critique, and he immediately answers that the advocacy of violence, whether general or specific, is not protected, since it is inconsistent with the act of constitution making.
In asking us not to protect, in certain instances, general advocacy, Fiss explains that although general advocacy is not, by hypothesis, a trigger of action, it may create new norms as to what conduct is legitimate and desirable. He urges us not to repeat the fallacy that many liberals fall into by ignoring the cultural ramifications of such speech and the role that culture plays in human action. In my essay I make the same point, speaking of an atmosphere that was generated prior to Prime Minister Rabin's assassination that was conducive to violence (see also Boeyink's essay). Fiss and I, however, disagree about the terms. While Fiss believes that the advocacy of violence in the Rabin context was not an incitement since, to his mind, the temporal proximity was lacking, I clearly speak of incitement because, to my mind, in the Israeli setting and environment certain speech acts created an atmosphere of hatred and violence that was conducive to the prime minister's assassination. These speech acts were magnified by the media, which played a crucial role that should not be ignored. For obvious reasons, John Stuart Mill did not refer to the power of the media when he explained, in On Liberty, the constitutive elements of incitement. In this era of modern technology and mass communication, we must not ignore the significant role played by the media in molding and reshaping societal atmosphere.
I provide some examples of speech acts that constitute incitement, although they may not be perceived so according to the Brandenburg conception. While not agreeing about the terms in use, Fiss and I acknowledge that there are differences between the United States and Israel. Simply stated, Israel does not have over two hundred years of history enabling it to tolerate things that the great American democracy is able to endure. Israel is not a superpower but a small country located in a hostile environment that thinks in terms of survival rather than of creating “zones of influence” and ensuring its supremacy.
My essay discusses the issue of instigative speech by focusing attention on four examples of instigation prior to Prime Minister Rabin's assassination that required interference, but in which insufficient measures were taken to forestall them or to punish the individuals involved. Those cases occurred after the signing of the Oslo Accords in September 1993, accords that increased the rift between “left” and “right” in Israel. The essay proceeds with an analysis of the attorney general's proposal for the media to refrain altogether from broadcasting instigative speeches. I object to this proposal on two grounds: because of its sweeping language, and because I prefer that the media apply se/f-restraint in deciding what to broadcast. The media, rather than the government, have to decide what accountable reporting means. Free journalism is one of the foundations of democracy. It should be safeguarded and strengthened, and at the same time it should have some guidelines prescribed by the media about news coverage. It is in the interest of the media, of the people, and of the government to have the media free of government directives (later on, this issue is thoroughly discussed by Magnet, Boeyink, and Lambeth). Thus, Fiss's essay and my own call upon decision makers to exercise caution. At the same time, we should not agree that terms like “liquidation lists” and open calls for murder become part of democracy and that their instigators be left unpunished. Zealots, who are usually motivated by a certain religion or ideology, should be stopped at an early stage, long before pulling the trigger or making others do it to enhance their partisan agenda.
The Challenge of Fundamentalism
There are many kinds of religious behavior, and most of them bear little relationship to direct political action. However, in recent years we have been witnessing the revival of religious attitudes well known from earlier periods in history and that are now often referred to as “fundamentalism.” Such attitudes do tend to have major political significance, and though they differ vastly from one culture to another, practically no society is immune to the risks that they pose to the political system in the given country.
Harvey Chisick regards the assassination of Prime Minister Rabin as one of the most effective assassinations in modern history. His thesis is that to the traditional threat of nonconsensual activism, as embodied in the tradition of tyrannicide and religiously sanctioned political assassination, intellectual and political developments of the eighteenth and nineteenth centuries have added a more insidious but more pervasive threat. This is the legitimation of self-interest, which logically developed into an ethic of radical individualism that no longer recognized in any significant or practical way a notion of the public good and which led to the atrophy of the ideal of citizenship as conceived in the classical republican tradition. Although Chisick believes liberalism to be a good thing and fanaticism to be destructive, he argues that the existing pervasive indifference to the responsibilities of citizenship creates an environment in which the field is left open to highly motivated groups or individuals that are prepared to act against government decisions. Historically, the coexistence of these two political outlooks is not to be found before the twentieth century, and together they pose a far-reaching threat to democratic politics and societies around the globe.
Chisick also speaks of costs: the cost exacted by liberal values and principles; the cost exacted by the weakening of older political forms and values. While the devotion of the citizen to the state has been reduced, the effectiveness of religious fundamentalism as a political force has become unmistakable. Chisick observes that Israel today is in the unenviable position of already having paid a high price in terms of social and political cohesion for having adopted liberal values, while a powerful minority movement grounded in religious fundamentalism and lacking respect for constitutionalism gains strength and infiltrates broadly liberal state structures but at the same time retains the option of nonconsensual violence. In his picturesque idiom, Israeli society has been attacked by a powerful virus that has infected a large majority of the population and seriously compromised its cohesiveness. At the same time, this weakened political organism is faced with a different threat, carried by small but determined, dedicated, and well-organized groups that use the established system for as long as it suits their needs but opt for extraconstitutional methods when this seems more effective. He concludes by saying that the destructiveness of fanaticism and nonconsensual violence in a political atmosphere permeated with legitimate partial interests and extreme individualism is not something that lies in the future. It is already here.
Let me refer to Chisick's important emphasis on the need to recognize the harm that small but determined, dedicated, and well-organized groups might cause to refute a prevalent fallacy, most notably found in John Rawls's discussion regarding the toleration of the intolerant. In his most influential book A Theory of Justice, Rawls argues that if an intolerant sect appears (Rawls does not say how) in a well-ordered society, the others should keep in mind the inherent stability of their institutions. The liberties granted to the intolerant may persuade them into a belief in freedom. Rawls explains that this persuasion works on the psychological principle that those whose liberties are protected by, and who benefit from, a just constitution will, other things being equal, acquire an allegiance to it over a period of time. He states, “So even if an intolerant sect should arise, provided that it is not so strong initially that it can impose its will straightaway, or does not grow so rapidly that the psychological principle has no time to take hold, it will tend to lose its intolerance and accept liberty of conscience.”8
Rawls does not address the questions of who determines whether that group is “not so strong” and according to what criteria this decision is made. Instead, he explains that the intolerant person loses intolerance because of the stability of just institutions, for stability means that when tendencies toward injustice arise, other forces will be called into play that work to preserve the justice of the whole arrangement. Thus, Rawls's underlying consequentialist assumption is that it is to society's benefit to encounter such a phenomenon because it would strengthen the beliefs of its members in the face of the threat.9 But, Rawls warns, we should take into account that the extent of the threat should not be too strong. Hence, tolerance should take place as long as it is safe for it to win over the threat, and not in any event. If the threat seems serious, then justification for intolerance might be in order.
Rawls fails to consider the intentions of the intolerant and whether these are strong enough to persuade the intolerant to manifest them in some way. Unlike Chisick, Rawls does not acknowledge that it is not only a question of how strong the intolerant are and what the circumstances are, but also to what extent the intolerant are motivated to exercise some form of coercion. An intense, dedicated, and well-organized group, with strong motivation to exhibit values that are inherently intolerant, might present a serious challenge to democracy. And obviously, as we learn from Skokie-like episodes, a small and dedicated group could inflict severe harm on its target group. While the illiberal group may not be strong enough to impose its will, the conviction and determination of its members might plausibly be strong enough to resist the forces of tolerance and liberty and inflict on segments of the population damage that must not be ignored. Instead of the intolerant and/or the fundamentalists being persuaded to believe in freedom, the determined group might spread its radical and antidemocratic ideas and fight its way to further power through the democratic means that are open to its members.
Religious extremism is also the concern of Sam Lehman-Wilzig's essay on civil disobedience and political violence. With the Arab-Israeli peace process reaching a critical stage, several manifestations of civil disobedience and incipient political revolt by extremist groups have occurred in the Israeli right-wing camp. Lehman-Wilzig examines the rhetoric and justification of such behavior in light of the Jewish political tradition, which clearly differentiates between argumentation/protest on the one hand (normally legitimate) and civil disobedience/revolt on the other (almost never legitimate).
The religious extremist arguments are essentially that Jews do not have to obey a nonmonarchical Torah-based Jewish government (even though they do have to obey such Gentile regimes); that any Jewish government today existing before the (rebuilt) Third Temple is illegitimate; and that Jews should not obey any legitimate government's edict that demands that the citizenry transgress a biblical commandment. All these arguments have counterarguments in the Jewish Halacha tradition, as the essay notes (indeed, most contemporary rabbinical decisors do not support the extremist position).
Lehman-Wilzig argues that at present, the extremists' arguments are more academic than obligatory—indeed, they place the burden of decision on the individual, arguing that civil disobedience in such circumstances is legitimate but not mandatory. The more interesting question is why the Israeli authorities have taken a maximalistic approach to such manifestations (trial and sentencing for nonviolent disobedience). Lehman-Wilzig argues that the major reason for this is paradoxical: Israeli secular law and jurisprudence on this issue are based more on the traditional Jewish (halachic) perspective than on standard Western norms and philosophy.
Hate Speech
The controversy over hate speech is as intense throughout the Western world as the controversy over the notions of liberalism and religion in Israel. The debate on hate speech is so intense that we need to be reminded that the problem is not a recent one, but one with a long history. It can be traced back to the first American settlement, when it often took the form of conflict among different religious sects. In an early-eighteenth-century case, the English courts found liability at common law for a false and inflammatory publication that provoked riots against the local Jewish community.10 Over the following two centuries, English, American, and Canadian courts developed a doctrine of criminal liability for the defamation of groups.11
Liberals value both freedom of expression and social equality, but these values appear to conflict when hatemongers use their freedom to vilify target groups identified by race, ethnicity, or other markers. The usual liberal response to this dilemma is to attempt to find a balance between the values in conflict. Wayne Sumner's essay explores the nature and rationale of this balancing act and reflects on its implications for liberalism and for the nature of fundamental rights. Sumner provides a philosophical account revolving around the question of how hate literature would have been treated within the version of liberalism that John Stuart Mill, the champion of liberty, defended.12 Sumner explains that since Mill's liberalism remains of interest to this day for more than merely historical reasons, there is some reason to think that his treatment of the problems raised by hate speech might be instructive. Sumner does not attempt to provide us with clear answers as to what Mill would say about hate speech. He admits that the question of whether Mill would in the end have treated hate speech as protected speech is undecidable. Sumner, however, shows that the assumption that Mill would extend legal protection to hate speech is not so simple and straightforward: had Mill been familiar with the forms hate literature takes and the purposes it serves in the concluding decade of the twentieth century, he would have found it a hard case. In Sumner's view, Mill's liberalism might be sensitive to contingencies of culture and circumstance. Hence, the answer that suited the England of Mill's day may not suit the England, or Germany, or Canada, or Israel, of our own. If we commit ourselves, as Mill did, to answering the question by means of a utilitarian calculation, there will be no way of ensuring that it must always receive the same answer regardless of social circumstances.
Irwin Cotler uses the philosophy of John Stuart Mill as his point of departure and then pushes the discussion to the legal realm. He notes that the advent of the Canadian Charter of Rights and Freedoms, coupled with one of the most comprehensive legal regimes anywhere to combat hate propaganda, has been a watershed for “hate speech” jurisprudence and the development of the principle of freedom of expression as guaranteed by the Charter. Indeed, Coder's article is written against the backdrop of the most celebrated free speech—and Holocaust denier—jurisprudence in the history of Canadian law, including most notably the historic trilogy of Keegstra, Andrews, and Taylor, 13 decided together by the Supreme Court of Canada in 1990, and the Zundel case,14 the constitutional aspect of which was decided by the Court in 1992 but whose Holocaust denial incitement continues to engage—and enrage—publics in the United States, Canada, and Europe.
Cotler, who acted as Counsel before the Canadian Supreme Court in those major hate speech cases, argues that an appreciation of this array of constitutional litigation reveals that Canada has become an international center for hate propaganda litigation in general and Holocaust denial litigation in particular. This is because of the philosophical and juridical encounter in Canada between freedom of expression as the lifeblood of democracy on the one hand, and the comprehensive legal regime of criminal and civil antidiscrimination remedies to combat “assaultive” Holocaust denial speech on the other. Indeed, the Canadian experience has generated one of the more instructive and compelling sets of legal precedents and principles with respect to this genre of Holocaust denial litigation and the principle of freedom of expression in the world today—and serves as a case study for Cotler in his essay. While arguing that the American constitutional jurisprudence is less relevant for Canada, Cotler concludes his comprehensive and detailed essay by forcefully saying that the willful promotion of hatred not only is assaultive of a free and democratic society, but is assaultive of its core principle—free speech. To allow racist hate speech to be protected speech under the Charter is to give democracy a bad name.
In turn, in his important contribution on the legal regulation of racist expression in Canada, Richard Moon makes the same point that critics of the Skokie decision make. Moon articulates that hateful remarks are so hurtful that they diminish the target group member to speechlessness or shock her into silence. The term “offense” does not capture the depth of the injury caused by hate speech—the emotional upset, the fear, and the insecurity that target group members may experience.
Moon further explains that a burning cross is experienced as threatening because it evokes the history of Klan violence against blacks. Similarly, a march with Nazi symbols and uniforms is experienced as threatening because it evokes the agonizing memories of the Nazi persecution of Jews in the 1930s and 1940s. Even if these threats do not seem realistic or immediate to an outside observer, they must be understood from the standpoint of a target group member who experiences them as part of a continuing practice of violence against her group.
Moon goes on to discuss the efforts of the courts to reconcile the legal regulation of racist expression with a constitutional commitment to freedom of expression. In contrast to the United States, where the leading hate speech cases involve the regulation of speech that is directed at a target group and intended to offend or intimidate the members of that group, in Canada the leading hate expression cases involve the legal prohibition of expression that is intended to persuade the members of the larger or dominant group about the undesirable characteristics or activities of the members of a minority group. Moon explains that behind the prohibition is a fear that those who hear these racist or hateful views will come to view the members of the particular group differently and will act toward them in a discriminatory or even violent way.
Moon considers whether it is possible to isolate a category of hateful expression for restriction while maintaining a larger commitment to freedom of expression. In this regard, he examines the line-drawing argument made by civil libertarians against the regulation of hateful expression. Moon argues that the problem is not, as civil libertarians suggest, that the line between legitimate and illegitimate expression may be drawn in the wrong place by the legislature or the courts, or that if drawn in the right place it may nevertheless have a chilling effect on legitimate expression. Line drawing is problematic because racist assumptions are so deeply entrenched in our culture, our language, and our thinking. As a result, it is impossible to isolate clearly hateful expression from ordinary public discourse.
This recognition raises questions about the value of legal regulation. If racist attitudes are so widely held and expressed in the democratic culture, then effective legal intervention may be impossible. Any regulation is bound to be underinclusive, leaving untouched the commonplace, unthinking, and most damaging communication/reproduction of racist attitudes. Yet at the same time, the pervasiveness of racist thought and expression may strengthen the argument for the regulation of extreme or bizarre racist views. The line-drawing argument may be instrumental once we recognize that extreme views have a certain plausibility for some members of the community because they resonate with, and give shape to, racist assumptions that are deeply rooted in any given culture. The irrationality of such claims means that they are of little value in public discourse. Hate speech offers a focus for feelings of resentment and frustration. It builds on existing racist attitudes and so leads to more extreme opinions and actions, particularly in times of great insecurity.
While Moon thinks that extreme or bizarre racist assertions do not have a strong claim to protection, “ordinary” or commonplace racist claims should be discussed and addressed and not simply censored out of public discourse. He thinks that public discussion of racist issues is vital, because racist attitudes are so pervasive. The community must confront commonly held racist views if it is to rise above them. At the same time, though, Moon urges us to rethink the standard laissez-faire approach to freedom of expression issues. Instead of assuming that a free marketplace of ideas will lead to a balanced assessment of racial issues, greater effort should be made by the state and community to ensure that racist views are expressed in a context where they will be challenged and where the likelihood of reasonable assessment by the audience is maximized—where the racist character of certain forms of discourse will be exposed and examined. It may be that in certain contexts the expression of racist views should be permitted only when accompanied by a clear and direct response. For example, we might reasonably expect the media not to report claims about racial intelligence without placing such claims in a context that highlights their fundamental flaws or at least sets out a contrary position.
Let me devote some attention to the notion of “marketplace of ideas.” Many of us are so accustomed to think in terms of a free marketplace of ideas that we fail to question this appealing yet artificial slogan. In reality, we are not operating in a free marketplace. Again, we need to acknowledge the importance of the media: the gaining of influence in modern societies is largely facilitated by exposure in the media. Most people who try to publish their thoughts and to voice their opinions in the media soon realize that we operate within a constructed framework that allows very limited access.
The concept and metaphor of a marketplace of ideas is an authentic product and reflection of American culture. Although John Milton and John Stuart Mill pronounced similar ideas in the seventeenth and nineteenth centuries,15 the marketplace of ideas metaphor is an American one. It gained influence during the early years of the twentieth century, especially among liberal philosophers and jurists in the United States. As such, the concept has informational value about the historical development of the American democratic tradition and its legal system. The problem is that this concept is so enshrined within the liberal tradition (especially the American) that we rarely question it.16 Undoubtedly it is an attractive concept, but if we give it careful consideration we might reach the conclusion that the marketplace of ideas is but an appealing metaphor. It is not a reality. The ideally free market in commodities and services, which scholars like Meiklejohn and Schauer17 and justices like Holmes,18 Douglas,19 and Harlan20 invoke when they plead for it, as a standard for intellectual freedom has never existed. Ideas are not commodities and cannot be correctly described by market analogies.21 Moreover, from a legalistic point of view, First Amendment protection of free speech and press denies powers of censorship to Congress. This does not mean, however, that it compels editors to give space to any and every interested party who wishes to publish her views. Every citizen has a right to try to publish her views. But this right does not impose upon editors an obligation to act as the agent of publication.
In his critique of the marketplace of ideas metaphor, Jack Pole asserts, quite harshly, that at the practical level, the market-derived argument can convey no moral guidance for professional editors with responsibilities to their profession, or for campus editors with responsibilities to the young. At the more abstract level, it can only obscure the issues at the center of the case for intellectual freedom.22
The Notion of Accountable Media
The above statements lead us to consider the role of the media in liberal democracy. The next three essays are designed to address this question, specifically with reference to media coverage of violence and terrorism. Magnet, Boeyink, and—to a lesser extent—Lambeth survey incidents of domestic terrorism in the United States and offer their insights on the desired relationships between media and terrorism. All strive to promote better, accountable media that care not only for reporting the stories but also for the consequences of reporting, especially when these have a bearing on innocent human life.
Through his analysis of media actions in the Waco raid and other violent incidents, Joseph Magnet observes recurrent problems in the interactions between the media and extremist groups: media actions may endanger life and security; media actions at a terrorist scene may compromise police or military efforts to bring about a favorable resolution; certain editorial choices may encourage terrorism; police inexperience in dealing with the media may endanger lives and operations. Magnet further observes that the commitments to free speech and a free press made by democracies lead to a paradox. The most important weapon democracies have against terrorism is the consistency with which they demonstrate that a resort to terrorist tactics will result in the terrorist group being ostracized and its cause or grievance discredited. Yet the fundamental commitments of the democracies to free speech and a free press render the democracies powerless to command that a resort to terrorism will not be favorably portrayed by the media.
The fact that the press enjoys core constitutional rights of access and publication does not protect all operational means and methods the press may choose to adopt. It is hard to see that the constitutional commitments of democracies, or their spirit in the decided cases in the United States and Canada, entitle the press to report in ways or by means that seriously endanger life or interfere with law enforcement efforts to bring a terrorist incident to a peaceful resolution. Magnet argues that certain narrowly tailored regulations of the press directed to the preservation of compelling interests of life and security can be demonstrably justified in the sense required by Canadian and American constitutional law.
Magnet calls for increased understanding between government and the media, for dialogue, for working out better modes and methods of interaction, and for sharing their perspectives. He also calls upon media organizations to adopt professional codes or guidelines concerning coverage of terrorist activities. The codes would have to address such issues as live coverage, contact with terrorists, media as intermediaries, media activities within police or military perimeters, propagandistic portrayal of terrorists, and identification of terrorists and hostages. Here I should note that former Israeli prime minister Mr. Shimon Peres, who took part in the Haifa conference, recommended in his speech that media professionals should be required to take an oath similar to the Hippocratic oath, which physicians are required to take before officially entering their profession.
David Boeyink, on the other hand, believes that no single guideline or policy governing ethically responsible media coverage of political extremists is adequate to deal with the diversity of problems such coverage raises. Boeyink is concerned with the issue of media responsibility in publishing or broadcasting information about political extremists who threaten the very core of a democratic system. More specifically, he is concerned with the question of how political extremism should be covered. Through the casuistry methodology, a case-based form of reasoning and analysis, Boeyink considers the limits of toleration where media coverage of radical actions is concerned. He analyzes three cases: the Unabomber, the Ku Klux Klan, and the militias, arguing that a great deal can be tolerated, even propaganda from terrorists. What cannot be tolerated is the failure of the media to provide citizens with comprehensive, in-depth coverage of political extremists that takes people beyond the crisis of terrorism into an understanding of it. That kind of coverage will allow them to see propaganda for what it is, to see extremists for who they are, and to see the flaws in their own culture—and in themselves—that extremists exploit. Only that kind of coverage will protect liberal democracy against political extremism.
Edmund Lambeth also focuses his discussion on freedom of the press. He examines how—and how well—media criticism assesses journalistic coverage of the recent rise of political violence in North America and several major episodes from the Middle East. Specifically, his essay asks whether media coverage of political violence and extremism reflects the philosophy of pragmatic liberalism that many scholars believe is characteristic of most American approaches to political decision making, especially when decisions involve the moral dimension of political issues. It also assesses whether pragmatic liberalism, as advanced by Charles Anderson, is a viable framework for media criticism and whether existing criticism of the coverage of political violence adequately addresses the major issues. Lambeth argues that Anderson's model of pragmatic liberalism can sharpen the focus of media critics, scholars, journalists, and citizens concerned about the news media's coverage of political violence.
The three essays call for the media to take a moral stand in their coverage of terrorism. This line of reasoning is similar to the one raised in Moon's essay with regard to media coverage of hate speech and in my own essay with regard to media coverage of incitement. The media are not outside the democratic realm. They are a necessary part of it. Media organizations need to realize that democracy and terrorism are mutually exclusive. A zero-sum game exists between democracy and terror. Therefore, if the spirit and ideas of democracy are dear to media editors and commentators, and if they want democracy to prevail, they cannot be objective or neutral in regard to the terrorist phenomenon. Media personnel should take sides, distinguishing between good and evil.
Moreover, journalists should be conscious of the terminology they employ in their reports. An ephemeral terrorist organization is not “an army.” People who kidnap and murder randomly whoever happens to be on the horrific stage of the theater of terror—be it an old person, a child, a woman, or a man—are not “students” or “saints” or “freedom fighters,” nor should they be dismissed as mere “lunatics.” Some of the people who launch such vicious attacks firmly believe that this is the right method to be employed in order to advance their ideological cause and convictions. Furthermore, killing innocent civilians who are riding a bus or a train is not to be described in terms of a “military operation.” Media organizations must condemn terrorism in explicit language and suffocate it by denying terrorists the airwaves. To avoid misinterpretation, I am not suggesting refraining from publishing: in a vein similar to Magnet's rationale, I advocate proportionality, as well as cooperation and consultation with government officials and experts on terrorism. A difference exists between covering news and providing terrorists a platform to declare their agenda. I also reiterate that the media must not remain neutral with regard to such an abhorrent phenomenon. Terrorism is inhuman, insensitive to human life, cruel and arbitrary. Explicit condemnation is not to be avoided.23
To conclude this point, professional journalism, among other things, is responsible journalism. Responsible journalists understand that terrorism with restrained media attention would have a very limited effect and would cease to appeal to others who might contemplate imitating it.
The International Community
The last section of this collection consists of two essays that speak of the legal and virtual international community and its relation to violent expressions. David Goldberg's contribution focuses on the current and recent efforts by the international community to tackle the hate speech phenomenon. Goldberg observes that the international community is going through one of its periodic bouts of concern about the dissemination of unacceptable (hate, racist, or violent) speech by means of different communications media. His analysis generally favors some degree of regulation. A variety of differing regulatory approaches emerge as policy options: international cooperation among nations; the promulgation of universal standards; or the development of national solutions. Goldberg describes and analyzes attitudes that have been adopted and texts that have been promulgated relating to hate speech by the international community in recent times. The particular focus is on hate speech as expressed, diffused, and disseminated by and through the media of communications—principally radio and computer-mediated communications. Since hate speech is an international phenomenon that crosses national borders and causes offense, the issue involves attempts by the international community to coordinate and harmonize the national principles for its regulation. Goldberg describes what steps are taken to establish principles and procedures to facilitate cross-border enforcement of domestic regulations.
The concluding essay deals with the same question of regulation: specifically, Michael Jaffe's concern is whether expressions of pornography and extremism on the Internet should be censored or regulated. The rise of the Internet as a public communication medium, in parallel with advancements in the personal computer allowing multimedia information sharing, presents unprecedented possibilities in human social communication. The Internet serves as a venue for both one-to-one and many-to-many communication. Any and every Internet user can effectively broadcast a message to every other Internet user. Internet users can also make documents, be they textual, graphic, video, or audio, available for retrieval by either specific or nonspecific interested parties. Thus, the formerly clear boundaries between public, mass, and private communication have become blurred, forcing us to reconsider sometimes conflicting values of free expression, privacy, and norms of acceptable public communication.
Jaffe examines various functional and ethical models of communication systems. As more communication control is placed in the hands of the individual, greater expectations are necessary for the use and conception of the communication technology. A relevant question that arises is, to what degree can citizens, including children, reasonably be expected to “protect themselves,” by virtue of technological sophistication, from being exposed to inappropriate or unwanted information? If we refer to the essays of Sumner, Cotler, and Goldberg, which consider the role that Holocaust denier Ernst Zundel is playing in spreading hate propaganda across the globe via, inter alia, the Internet, some would argue for the need to apply some form of regulation in order to prevent minors from falling for the attractions that Zundel and other hatemongers prepare for them in their amazing graphic sites.
Jaffe thinks it would be irresponsible to dismiss the notion that some in our society might not develop the Internet literacy skills that protect them from potential harms or that limit their ability to achieve information parity with others in society. He maintains that it would be equally irresponsible to ignore the progressive, prosocial potential that a decentralized, uncensored public media cluster presents for our increasingly heterogeneous society. Placing the concept of public media literacy as a societal goal can promote the values of individual enrichment, the recognition of diversity, and cooperative public participation. In an era of political violence and extremism, characterized by antagonistic ideological polarization and the ability of small groups to cause great harm, Jaffe thinks that deliberation and dialogue, even in instances that are initiated through confrontation, are effective remedies for harmful stereotypes. He concludes by saying that our laws and their enforcement must prevent the perpetration of harms in practice while allowing people the means of deliberating and reaffirming what is good and evil. While conceding that some information regulation at institutional or perhaps regional levels might be considered necessary to ensure community and organizational values, Jaffe warns against sweeping centralized regulation that might prevent the evaluation of the Internet's social benefits and its pitfalls. Undoubtedly, these and other questions will continue to trouble our minds as the Internet international community grows rapidly and the attractions that the Internet offers become more and more anarchic, as is likely in this carefree environment.
Conclusion
The essays gathered in this volume cover a wide range of theoretical and practical issues concerning a variety of problems that democracies confront time and again. They consider the philosophical difficulties inherent in the concepts of liberty and tolerance upon which democracy is based; but, at the same time, they do not confine themselves strictly to the philosophical realm. Thus, the essays also ponder practical problems arising from the tensions between the forces of democracy and the destructive elements that take advantage of the liberty granted to them in order to harm individuals and groups and to undermine democracy. All the essays share a belief in the urgency of the need to tackle and find adequate answers to radicalism and political extremism. They seek to discover how we may learn from our past and how we may promote a better, more workable democracy that will set limits to liberty and tolerance, but not at the expense of undermining these core ideas of democracy.
This collection of essays will surely contribute to the ongoing public debate about the intricate question of the boundaries of liberty and tolerance. Its topics and main concerns are timely, politically significant, very controversial, and hence intellectually compelling. They address issues that bring scholars and students, politicians, sociologists, media educators and professionals, jurists and lawyers, and the general public together, although often not in harmony. I hope the deliberations offered here will draw the attention of people from all walks of life. While I am certain that this collection will be most useful in classrooms and similar academic forums, I also would like it to appeal to legislatures and judges who take the decisions and make the judgments necessary to protect the fabric of democracy. Liberty and tolerance are social values, but they need to be subject to restraint in order to ensure the survival of the society that cherishes them.
NOTES
1. R. Cohen-Almagor, The Boundaries of Liberty and Tolerance: The Struggle against Kahanism in Israel (Gainesville: University Press of Florida, 1994), 3.
2. See, for instance, the following excellent collections: John Horton and Susan Mendus, eds., Aspects of Toleration (New York: Methuen, 1985); Susan Mendus and David Edwards, eds., On Toleration (Oxford: Clarendon Press, 1987); and Susan Mendus, ed., Justifying Toleration (Cambridge: Cambridge University Press, 1988).
3. Alf Ross, Why Democracy? (Cambridge, Mass.: Harvard University Press, 1952); Alexander Meiklejohn, Political Freedom (New York: Oxford University Press, 1965); Franklin S. Haiman, Speech and Law in a Free Society (Chicago: University of Chicago Press, 1981); Frederick Schauer, Free Speech: A Philosophical Enquiry (New York: Cambridge University Press, 1982); Lee C. Bollinger, The Tolerant Society (Oxford: Clarendon Press, 1986); Hugo L. Black, “The Bill of Rights,” 35 New York University Law Review (1960), 865-81; Aryeh Neier, Defending My Enemy (New York: E. P. Dutton, 1979); Ronald M. Dworkin, A Matter of Principle (Oxford: Clarendon Press, 1985); J. S. Mill, Utilitarianism, Liberty, and Representative Government (London: J. M. Dent, 1948, Everyman's edition); John Rawls, A Theory of Justice (Oxford: Oxford University Press, 1971); John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
4. Village of Skokie v. The National Socialist Party of America, 373 N.E. 2d 21 (1978).
5. Anthony Skillen, “Freedom of Speech,” in Keith Graham, ed., Contemporary Political Philosophy (Cambridge: Cambridge University Press, 1982), 139-59; Norman Dorsen, “Is There a Right to Stop Offensive Speech? The Case of the Nazis at Skokie,” in Larry Gostin, ed., Civil Liberties in Conflict (London: Rout-ledge, 1988), 122-35; T. M. Scanlon, “Freedom of Expression and Categories of Expression,” 40 University of Pittsburgh Law Review, no. 3 (1979): 519-50; Schauer, Free Speech; Bollinger, The Tolerant Society.
6. For further deliberation, see R. Cohen-Almagor, “Harm Principle, Offence Principle, and the Skokie Affair,” in Steven J. Heyman, ed., Controversies in Constitutional Law: Hate Speech and the Constitution, vol. 2 (New York: Garland Publishing, 1996), 277-94; reprinted from 41 Political Studies, no. 3 (1993).
7. See also David Feldman, Civil Liberties and Human Rights in England and Wales (Oxford: Clarendon Press, 1993), esp. chap. 17.
8. Rawls, A Theory of Justice, 219.
9. Bollinger makes a similar assumption in The Tolerant Society.
10. King v. Osborne, 2 Barnardiston 138, 166, 94 Eng. Rep. 406, 425; reprinted in Heyman, Controversies in Constitutional Law, 1:1-3.
11. Steven J. Heyman, “Hate Speech and the Theory of Free Expression,” in Heyman, Controversies in Constitutional Law, l:ix-xci. See also Mayo Moran, “Talking about Hate Speech: A Rhetorical Analysis of American and Canadian Approaches to the Regulation of Hate Speech,” Wisconsin L. Rev., no. 6 (1994): 1425-1514.
12. Those interested in the Millian theory may glance at R. Cohen-Almagor, “Ends and Means in J. S. Mill's On Liberty,” 26 Anglo-American Law Review, no. 2 (1997): 141-74; and idem, “Why Tolerate? Reflections on the Millian Truth Principle,” 25 Philosophia, nos. 1-4 (1997): 131-52.
13. R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Andrews and Smith, [1990] 3 S.C.R. 870; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.
14. Zundel v. R., [1992] 2 S.C.R. 731.
15. Cf. John Milton, Areopagitica: A Speech for the Liberty of Unlicensed Printing (Cambridge: Deighton, Bell and Co., 1973); Mill, Utilitarianism, Liberty, and Representative Government; and Mill, “Law of Libel and Liberty of the Press,” in Geraint L. Williams, ed., John Stuart Mill on Politics and Society (Glasgow: Fontana, 1976), 143-69. Milton writes in Areopagitica (35): “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?”
16. Cf. Earl Latham, “The Theory of the Judicial Concept of Freedom of Speech,” 12 J. of Politics, no. 4 (November 1950): 637-51; Leo Pfeffer, The Liberties of an American (Boston: Beacon Press, 1956), esp. chaps. 3, 5; Samuel J. Konefsky, The Legacy of Holmes and Brandeis (New York: Macmillan, 1956), esp. chaps. 9, 10; Milton R. Konvitz, First Amendment Freedoms (Ithaca, N.Y.: Cornell University Press, 1963), esp. chaps. 3, 4; Martin Shapiro, Freedom of Speech (Englewood Cliffs, N.J.: Prentice Hall, 1966), esp. chap. 2; Walter Berns, Freedom, Virtue, and the First Amendment (New York: Greenwood Press, 1969), 95-128; M. P. Golding, “Principled Decision Making and the Supreme Court,” in Robert S. Summers, ed., Essays in Legal Philosophy (Oxford: Basil Blackwell, 1970), 208-36; Alpheus Thomas Mason, The Supreme Court from Taft to Burger (Baton Rouge: Louisiana State University Press, 1979), esp. chap. 4; Bollinger, The Tolerant Society, esp. chaps. 2, 6; Cohen-Almagor, The Boundaries of Liberty and Tolerance, esp. chap. 5.
17. Alexander Meiklejohn, “Freedom of Speech,” in Peter Radcliff, ed., Limits of Liberty (Belmont, Calif.: Wadsworth Publishing Co., 1966), 19-26; Schauer, Free Speech, esp. chap. 2.
18. Abrams v. U.S., 250 U.S. 616 (1919).
19. Dennis v. U.S., 341 U.S. 494 (1951).
20. Time, Inc. v. Hill, 385 U.S. 374, 406 (1967). The concept was utilized also by the Canadian courts. See, for instance, R. v. Zundel (1987), 580 R (2d) 129 at 155-56.
21. J. R. Pole, “A Bad Case of Agoraphobia,” TLS, 4 February 1994, 13-14. For further discussion on the First Amendment and the free marketplace of ideas metaphor, see Virginia Wood, Due Process of Law, 1932-1949 (Baton Rouge: Louisiana State University Press, 1951), 3.
22. Pole, “A Bad Case of Agoraphobia.” For a different line of feminist criticism, holding that all systems are power systems controlled by men who discriminate against women, see Andrea Dworkin, Woman Hating (New York: Plume, Penguin, 1974), 17-90; Catherine A. MacKinnon, Feminism Unmodified (Cambridge, Mass.: Harvard University Press, 1987), esp. 151, 164-66; and MacKinnon, Only Words (Cambridge, Mass.: Harvard University Press, 1993), esp. 9-41, 75-78, 92-94. According to this criticism, the marketplace of ideas is hardly a market, and obviously it is not free, if it excludes 50 percent of the population.
23. For further discussion, see Paul Wilkinson, Terrorism v. Liberal Democracy — The Problems of Response, Center for Security and Conflict Studies, no. 67 (January 1976); A. Schmid and J. deGraaf, Violence as Communication (Beverly Hills: Sage, 1982); and R. Cohen-Almagor, “Objective Reporting in the Media: Phantom Rather than Panacea,” in Speech, Media and Ethics (London: Macmillan, forthcoming).