35.

WHEN CARTOONS ARE NOT FUNNY BUT SHOULD STILL CONSTITUTE PERMISSIBLE SPEECH

Poking fun at a religion, even calling it ridiculous, is an altogether different message from defaming its followers or threatening them with harm.

I VERY MUCH HESITATED to write a book that would be perceived as critical of the First Amendment. World events, in fact, caused me to set the book aside. Free speech has been very much on everyone’s mind, what with political correctness, identity politics, intersectionality, trigger warnings, microaggressions, hate speech codes, and the global controversy associated with the Danish cartoons. Everyone seems to be fearful of what they are—and are not—permitted to say. How can free speech actually exist amid such a battery of cultural, religious, social, morally self-imposed, and often legally enforced restrictions?

The hope of clearing up some of the confusion and clarifying my own position on free speech seemed like a risky undertaking. This book has been arguing for a kinder, gentler, more respectful First Amendment—a vision of free speech that, in some respects, would more resemble the European model. I am not in favor of placing restrictions on robust political debate. Ideas should never be burdened by sensitivity protocols. Ideas are expected to agitate and cause uneasy feelings. This is generally true with political speech and is what the American Founding Fathers had in mind when they established a liberty centered around speech. To qualify for the full complement of free speech safeguards, however, it should involve a sincere attempt to say something meaningful about the politics of the day. Appealing solely to emotion with words and actions intended to threaten violence and cause harm are not First Amendment priorities.

Here is what the First Amendment should never be called upon to protect: groups of nativists shouting, “Muslims Go Home”; neo-Nazis marching through a hamlet where Holocaust survivors have sought to settle in peace; burning crosses on the lawns of African-Americans; showing up to a military funeral with placards intended to make one’s hatred of homosexuals plainly known while destroying a moment of mourning. None of these exercises in expression involve a debate about ideas. They are, in fact, neither ideas nor debates. They are orgies of hate that amount to non-speech. And for these patently obvious reasons, they should not be the concern of the First Amendment.

Let’s stop pretending that we cannot tell the difference.

And yet, confusion abounds. Perhaps the best example of it, the one that leaves people wondering whether free speech has either gone too far or not far enough, are the events that surrounded the various instances in which the Prophet Muhammad was caricatured in Western newspapers. Muslims complain that any visual representation of the Prophet is blasphemy. Conservatives tend to regard the cartoons as free expression. Some liberals believe the cartoons to be racist.

If drawn in the United States, would they fall within the protections of the First Amendment, despite the fact that some people consider them to be sinister representations that induce incitement and hate?

In Europe, laws that were designed to protect vulnerable minorities were being used to defend fundamentalist religious practices. A political dilemma presented itself: The European Union could not capitulate to this religious edict from a minority population while, at the same time, maintaining and upholding Western principles of free speech.

The Danish cartoons forced the European continent to confront whether it actually respected free speech after all. These liberal democracies had no tolerance for racism. Neo-Nazis were not welcome either. Were cartoonists in the same category? Perhaps freedom of expression was ultimately irreconcilable with the competing demands of pluralism and multiculturalism. And what if Muslims, sharing their newfound Western freedom with people from other nations and cultures, were rejecting some of the freedoms that their adopted homelands were offering? How to accommodate them without applying double standards and separate rules? By 2008, the European Union had apparently decided to side with the sensitivities and mandates of its minority Muslim population. Suddenly, the EU implemented religious hate speech laws that prohibited “religious insult[s],” sought to “preserve social peace and public order,” and spoke of “increasing sensitivities” toward “certain individuals” who “reacted violently to criticism of their religion.”³³⁹

Europe’s once proud open societies were looking a bit shuttered from all that shuddering. The operating manual for freedom of speech soon changed all throughout the Netherlands, Denmark, Italy, Austria, and Germany. Criminal investigations were opened against novelists, editors, legislators, philosophers, filmmakers, and, of course, cartoonists, followed by convictions for engaging in anti-Islamic speech. Islam simply would not tolerate any criticism of its religious tenets on women’s rights, child marriages, punishments for homosexuality, and animal cruelty. And those who spoke out in favor of immigration limits against Muslims were prosecuted, too.

In the United Kingdom, a public-television segment on radical Muslim clerics became the subject of a police investigation that accused the network of engaging in hate speech. A Christian church located in a newly populated Muslim neighborhood found itself convicted on a charge of public disorder for singing hymns on Sunday morning. In 2009, a husband and wife who owned a hotel were hauled into court after one of their guests, a Muslim woman, overheard their breakfast conversation, which apparently included a pejorative remark, and walked away insulted. In Finland, a city council member in Helsinki was convicted for blog entries that disparaged Mohammad’s marital history. In Austria, a woman was convicted of defaming the Prophet after discussing some of her own work experiences in Iran and Libya. Similarly, in Austria, a woman was found guilty of “disparaging religious doctrine” when she suggested that Muhammad might have been a pedophile given the fact that he consummated his marriage to a nine-year-old girl.

Under French law, insulting people based on their religion is a crime punishable with six-months’ jail time and a $22,500 fine. Famed French movie actress and animal rights activist Brigitte Bardot has been convicted on numerous occasions for defaming and provoking hatred against Muslims—often with the pretext of criticizing their food-slaughtering practices, but the charges always implicated the incitement in her rhetoric: “They will slit the throats of . . . our sheep, they will slit our throats one day and we will have earned it.”³⁴⁰

Countries that criminalize hate speech, such as Germany, the Netherlands, the United Kingdom, Sweden, and Canada, have unwittingly let it be known that resorting to violence is a proper and expected way to respond to words and images that offend.

In the United States, censorship masquerading as free speech sensitivity was on full display at the PEN Literary Gala—the very year after the murders at Charlie Hebdo. The PEN Center decided to honor the slain cartoonists with its Freedom of Expression Courage Award. Most unexpectedly, six literary hosts of the evening declined to attend—as an act of protest against the recipients. PEN is an international organization devoted to the freedom of writers to report upon and represent the world in which they live—either through journalism or art. The purpose behind the award was to honor the very thing that cost the lives of the nine cartoonists who had been gunned down for expressing an idea and criticizing a religion’s truth.

The writers who decided to skip the annual PEN Literary Gala in protest saw something else: a French newspaper that had gone too far. The cartoons that appeared in Charlie Hebdo were, in their opinion, insulting and threatening to Muslims. The images offended and targeted Muslims—a community already marginalized, underrepresented in power, and overrepresented in prison. Moreover, Muslims are stigmatized by laws that prohibit their religious displays, such as banning headscarves and face-covering veils in both schools and public places. Salman Rushdie—who after all knows a little something about being threatened by those offended by his writing—appalled by the fact that these writers would seemingly side with those who, ultimately, do not believe in freedom of expression at all, mused that they were “six authors in search of character.”³⁴¹

Many reading this book might think that I, too, would support this campaign against freedom of speech, with the PEN Literary Gala serving as the perfect occasion to change the conversation about free speech. The United States nearly always protects the speaker over the feelings of the listener. How appropriate for some esteemed members of PEN to take the lead in defense of marginalized Muslims. Here we have gutsy writers taking a righteous stand against their own interests. The Supreme Court would be dumbfounded by the gesture.

And so am I. The controversy over the cartoons illustrates precisely what I am not proposing. Any action taken against the cartoonists, whether under the law or through violent means, is censorship—pure and simple. Hurt feelings do not entitle the murder of those who presumably caused the offense. Charlie Hebdo was making a statement through satire about some of the tenets of Islam. The way to respond, in hopes of either rebutting or reaching a common understanding, is not by resorting to murder. One who asks for greater sensitivity cannot expect to rely on violence to win over hearts and minds. In the United States, the cartoons would be protected First Amendment expression, regardless of the insult some Muslims might feel. The cartoons address ideas that invite debate or discussion, not death.

A basic tenet of one’s religion cannot be that it will not tolerate any insult or offense from either its disciples or nonbelievers. No religion, political ideology, or set of beliefs or ideas can hold the world hostage with commandments everyone must follow. But that is seemingly what devout Muslims are demanding of the world: Accept our beliefs as the word of our God, or we will bring violence or unreasonable special pleadings that overturn the liberal premises of your open societies.

Taking offense—whether it be from its inside reformers or outside critics—is something a religion must tolerate under principles of free speech. This is particularly true in the case of Islam, which, unlike Hinduism, Christianity, Judaism, and the other world religions, serves as a political movement with some of its most devout followers of Muhammad seeking to impose a caliphate around the world. With such political aspirations, Islam cannot be exempt from political criticism.

Free speech is free not just for the speaker; it creates a wider freedom from which we all benefit. Its purpose is to allow for the free flow of ideas. Mocking the Prophet of Islam or making him look foolish, however, does not attack Muslims personally or threaten them as a people. Nor does it malign Muslims, make them targets, or subject them to opprobrium. And while it might insult some, it does not cause harm to anyone.

What that fateful issue of Charlie Hebdo achieved—and what the Danish cartoons represented before them—was to question the beliefs of Islam in a satirical manner. Poking fun at a religion, even calling it ridiculous, is an altogether different message from defaming its followers or threatening them with harm. The cartoons did not incite violence—either imminent or sometime in the future. The only violence that occurred was the reaction from incensed Muslims.

People can mock Ash Wednesday or the eating of matzah on Passover as much as they wish. In the Bible Belt there are reports of billboards with the image of Jesus recommending a local dealership for those in the market for a new truck. Jesus also makes cameo appearances in country music songs.

Jews are comfortable with jokes about Moses, one of their prophets, dropping the Ten Commandments as if he slipped on a banana peel. Buddha’s desperate failure to stick with a diet has made the rounds of comedy circuits for as long as stand-ups have delivered jokes on the pieties of the divine.

The Book of Mormon, which is still running on Broadway and which captured nine Tony Awards in 2011, including one for Best Musical, could not possibly have an equal anywhere in its hilarious takedown of a world religion. The creation myth of Mormonism and the Church of Jesus Christ of Latter-day Saints is skewered to scandalous effect. The history of its founding and the tenets of its belief are savaged mercilessly. And yet, nowhere—not on Broadway, not on any of the national tours, or the productions mounted in London’s West End, or in Oslo, Stockholm, Melbourne, or Copenhagen—are angry Mormons standing outside theaters, pumping their fists and shouting, “Death to Broadway!” or “Death to South Park!” No one in Utah has issued the Mormon equivalent of a fatwa against Trey Parker and Matt Stone, the musical’s creators (who also write and produce South Park). Indeed, when the play first opened, the Church of Jesus Christ of Latter-day Saints took out a full-page ad in the Playbill program, which read: “You’ve seen the play. Now come to one of our churches and see the difference.”³⁴²

All this commotion over cartoons is confusing liberals in Western democracies about the true meaning of free speech. Absolutists are appalled that free speech is being compromised out of fear of offending a religion. Progressives believe that if Muslims are insulted, then that is reason enough to condemn cartoonists as racists. Curiously, the issue is rarely framed in terms of protecting Muslims from violence—the usual way in which restrictions on speech are justified.

Jeremy Waldron has noted the “basic distinction between an attack on a body of beliefs and an attack on the basic social standing and the reputation of a group. . . . In every democratic society, we distinguish between the respect accorded to a citizen and the disagreement we might have concerning his or her social and political convictions.”³⁴³

A critique of an ideology, even in the form of an insult, is not the same as a threat made against its adherents. Ideas, whether they be religious beliefs, political ideologies, economic theories, social welfare policies, or art and culture, must always be subject to critical review. Shouting, “Muslims are degenerates! They rape and steal! We want them out of our communities!” is unabashed hate speech and should never be tolerated, just as “Mexicans coming over the border are rapists” is also hate speech that should be unlawful. The Nation of Islam’s firebrand leader, Louis Farrakhan, gave a controversial sermon in March 2018 during which he preached, “Farrakhan, by God’s grace, has pulled the cover off of that Satanic Jew and I’m here to say your time is up, your world is through.”³⁴⁴ This is classic hate speech. Incitement that calls for violence against groups (“your time is up”), references to the “N-word,” threats made against homosexuals, or refrains among Palestinians that Jews are descendants of monkeys and pigs are all examples of hate speech. Implicit in civilization is the protection of individuals and groups from assaults. Competing objectives often clash. Sometimes ideas offend. Civilization means that we know the difference between an actual assault and an idea that merely offends.

And when there is an assault that is expressive in nature, it should be treated no differently than a physical battery. Hate speech laws, drafted narrowly so as to present no constitutional impediment, should be relied upon to criminalize weaponized speech. And civil tort actions for emotional distress should be more readily filed and treated with the respect they deserve. It is the job of the juries to decide, both in criminal and civil courts, whether the expressive activity is more than an insult or an offense, and therefore falls outside the protection of the First Amendment.