Below is my column today in the Washington Post on the decline of free speech in Western countries. Speech is being balkanized into prohibited and permitted areas by redefining speech in terms of its social impact. Increasingly, it seems that the West is re-discovering the tranquility that comes with forced silence. What is fascinating is that this trend is based on principles of tolerance and pluralism — once viewed as the values underlying free speech.
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The Death of Free Speech In The West
Free speech is dying in the Western world. While most people still enjoy considerable freedom of expression, this right, once a near-absolute, has become less defined and less dependable for those espousing controversial social, political or religious views. The decline of free speech has come not from any single blow but rather from thousands of paper cuts of well-intentioned exceptions designed to maintain social harmony.
In the face of the violence that frequently results from anti-religious expression, some world leaders seem to be losing their patience with free speech. After a video called “Innocence of Muslims” appeared on YouTube and sparked violent protests in several Muslim nations last month, U.N. Secretary General Ban Ki-moon warned that “when some people use this freedom of expression to provoke or humiliate some others’ values and beliefs, then this cannot be protected.”
It appears that the one thing modern society can no longer tolerate is intolerance. As Australian Prime Minister Julia Gillard put it in her recent speech before the United Nations, “Our tolerance must never extend to tolerating religious hatred.”
A willingness to confine free speech in the name of social pluralism can be seen at various levels of authority and government. In February, for instance, Pennsylvania Judge Mark Martin heard a case in which a Muslim man was charged with attacking an atheist marching in a Halloween parade as a “zombie Muhammed.” Martin castigated not the defendant but the victim, Ernie Perce, lecturing him that “our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures — which is what you did.”
Of course, free speech is often precisely about pissing off other people — challenging social taboos or political values.
This was evident in recent days when courts in Washington and New York ruled that transit authorities could not prevent or delay the posting of a controversial ad that says: “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat jihad.”
When U.S. District Judge Rosemary Collyer said the government could not bar the ad simply because it could upset some Metro riders, the ruling prompted calls for new limits on such speech. And in New York, the Metropolitan Transportation Authority responded by unanimously passing a new regulation banning any message that it considers likely to “incite” others or cause some “other immediate breach of the peace.”
Such efforts focus not on the right to speak but on the possible reaction to speech — a fundamental change in the treatment of free speech in the West. The much-misconstrued statement of Justice Oliver Wendell Holmes that free speech does not give you the right to shout fire in a crowded theater is now being used to curtail speech that might provoke a violence-prone minority. Our entire society is being treated as a crowded theater, and talking about whole subjects is now akin to shouting “fire!”
The new restrictions are forcing people to meet the demands of the lowest common denominator of accepted speech, usually using one of four rationales.
Speech is blasphemous
This is the oldest threat to free speech, but it has experienced something of a comeback in the 21st century. After protests erupted throughout the Muslim world in 2005 over Danish cartoons depicting the prophet Muhammad, Western countries publicly professed fealty to free speech, yet quietly cracked down on anti-religious expression. Religious critics in France, Britain, Italy and other countries have found themselves under criminal investigation as threats to public safety. In France, actress and animal rights activist Brigitte Bardot has been fined several times for comments about how Muslims are undermining French culture. And just last month, a Greek atheist was arrested for insulting a famous monk by making his name sound like that of a pasta dish.
Some Western countries have classic blasphemy laws — such as Ireland, which in 2009 criminalized the “publication or utterance of blasphemous matter” deemed “grossly abusive or insulting in relation to matters held sacred by any religion.” The Russian Duma recently proposed a law against “insulting religious beliefs.” Other countries allow the arrest of people who threaten strife by criticizing religions or religious leaders. In Britain, for instance, a 15-year-old girl was arrested two years ago for burning a Koran.
Western governments seem to be sending the message that free speech rights will not protect you — as shown clearly last month by the images of Nakoula Basseley Nakoula, the YouTube filmmaker, being carted away in California on suspicion of probation violations. Dutch politician Geert Wilders went through years of litigation before he was acquitted last year on charges of insulting Islam by voicing anti-Islamic views. In the Netherlandsand Italy, cartoonists and comedians have been charged with insulting religion through caricatures or jokes.
Even the Obama administration supported the passage of a resolution in the U.N. Human Rights Council to create an international standard restricting some anti-religious speech (its full name: “Combating Intolerance, Negative Stereotyping and Stigmatization of, and Discrimination, Incitement to Violence and Violence Against, Persons Based on Religion or Belief”). Egypt’s U.N. ambassador heralded the resolution as exposing the “true nature” of free speech and recognizing that “freedom of expression has been sometimes misused” to insult religion.
At a Washington conference last year to implement the resolution, Secretary of State Hillary Rodham Clinton declared that it would protect both “the right to practice one’s religion freely and the right to express one’s opinion without fear.” But it isn’t clear how speech can be protected if the yardstick is how people react to speech — particularly in countries where people riot over a single cartoon. Clinton suggested that free speech resulting in “sectarian clashes” or “the destruction or the defacement or the vandalization of religious sites” was not, as she put it, “fair game.” Many winced when she invited countries to work on the implementation of the standard “to build those muscles” needed “to avoid a return to the old patterns of division.”
Given this initiative, President Obama’s U.N. address last month declaring America’s support for free speech, while laudable, seemed confused — even at odds with his administration’s efforts.
Speech is hateful
In the United States, hate speech is presumably protected under the First Amendment. However, hate-crime laws often redefine hateful expression as a criminal act. Thus, in 2003, the Supreme Court addressed the conviction of a Virginia Ku Klux Klan member who burned a cross on private land. The court allowed for criminal penalties so long as the government could show that the act was “intended to intimidate” others. While the conviction was vacated, the intention factor was a distinction without meaning, since the state can simply cite the intimidating history of that symbol.
Other Western nations routinely bar forms of speech considered hateful. Britain prohibits any “abusive or insulting words” meant “to stir up racial hatred.” Canada outlaws “any writing, sign or visible representation” that “incites hatred against any identifiable group.” These laws ban speech based not only on its content but on the reaction of others. Speakers are often called to answer for their divisive or insulting speech before bodies like the Canadian Human Rights Tribunal.
This month, a Canadian court ruled that Marc Lemire, the webmaster of a far-right political site, could be punished for allowing third parties to leave insulting comments about homosexuals and blacks on the site. Echoing the logic behind blasphemy laws, Federal Court Justice Richard Mosley ruled that “the minimal harm caused . . . to freedom of expression is far outweighed by the benefit it provides to vulnerable groups and to the promotion of equality.”
Speech is discriminatory
Perhaps the most rapidly expanding limitation on speech is found in anti-discrimination laws. Many Western countries have extended such laws to public statements deemed insulting or derogatory to any group, race or gender.
For example, in a closely watched case last year, a French court found fashion designer John Galliano guilty of making discriminatory comments in a Paris bar, where he got into a cursing match with a couple using sexist and anti-Semitic terms. Judge Anne-Marie Sauteraud read a list of the bad words Galliano had used, adding that she found (rather implausibly) he had said “dirty whore” at least 1,000 times. Though he faced up to six months in jail, he was fined.
In Canada, comedian Guy Earle was charged with violating the human rights of a lesbian couple after he got into a trash-talking session with a group of women during an open-mike night at a nightclub. Lorna Pardysaid she suffered post-traumatic stress because of Earle’s profane language and derogatory terms for lesbians. The British Columbia Human Rights Tribunal ruled last year that since this was a matter of discrimination, free speech was not a defense, and awarded about $23,000 to the couple.
Ironically, while some religious organizations are pushing blasphemy laws, religious individuals are increasingly targeted under anti-discrimination laws for their criticism of homosexuals and other groups. In 2008, a minister in Canada was not only forced to pay fines for uttering anti-gay sentiments but was also enjoined from expressing such views in the future.
Speech is deceitful
In the United States, where speech is given the most protection among Western countries, there has been a recent effort to carve out a potentially large category to which the First Amendment would not apply. While we have always prosecuted people who lie to achieve financial or other benefits, some argue that the government can outlaw any lie, regardless of whether the liar secured any economic gain.
One such law was the Stolen Valor Act, signed by President George W. Bush in 2006, which made it a crime for people to lie about receiving military honors. The Supreme Court struck it down this year, but at least two liberal justices, Stephen Breyer and Elena Kagan, proposed that such laws should have less of a burden to be upheld as constitutional. The House responded with new legislation that would criminalize lies told with the intent to obtain any undefined “tangible benefit.”
The dangers are obvious. Government officials have long labeled whistleblowers, reporters and critics as “liars” who distort their actions or words. If the government can define what is a lie, it can define what is the truth.
For example, in February the French Supreme Court declared unconstitutional a law that made it a crime to deny the 1915 Armenian genocide by Turkey — a characterization that Turkey steadfastly rejects. Despite the ruling, various French leaders pledged to pass new measures punishing those who deny the Armenians’ historical claims.
The impact of government limits on speech has been magnified by even greater forms of private censorship. For example, most news organizations have stopped showing images of Muhammad, though they seem to have no misgivings about caricatures of other religious figures. The most extreme such example was supplied by Yale University Press, which in 2009 published a book about the Danish cartoons titled “The Cartoons That Shook the World” — but cut all of the cartoons so as not to insult anyone.
The very right that laid the foundation for Western civilization is increasingly viewed as a nuisance, if not a threat. Whether speech is deemed inflammatory or hateful or discriminatory or simply false, society is denying speech rights in the name of tolerance, enforcing mutual respect through categorical censorship.
As in a troubled marriage, the West seems to be falling out of love with free speech. Unable to divorce ourselves from this defining right, we take refuge instead in an awkward and forced silence.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Washington Post (Sunday) October 14, 2012
Professor Turley’s fourth category seems to include a recent case in New York, where prosecutors brought “identity theft,” “criminal impersonation,” “forgery,” and “harassment” charges against the author of a batch of “Gmail confessions” in which an NYU department chairman (who has since left NYU) was portrayed as crudely admitting to the university’s dean that he had plagiarized another scholar so that he could be “invited to lecture around the world.” The emails contained links to blogs accusing the department chairman of plagiarism, and delicately explained that “someone seems to be intent on exposing me for a minor failing of mine dating back fifteen years.”
Apparently, the legal ground for the “criminal impersonation” and “forgery” charges was that the actual author of the satirical confessions had sought an unspecified “benefit,” which according to the judge means “any gain or advantage.” The grounds for the identity theft charges were far more specific: the author had sought to “falsify NYU’s business records” with the fake confessions, and to gain the tangible benefit of $1,000 by attaching a “smear” to the reputation of the NYU department chairman, in the hope that the chairman would be dropped from the academic lecture circuit and replaced by the allegedly plagiarized scholar, who would thereby earn at least 1,000 dollars.
For further information on this astonishing case which is awaiting appellate review in the New York criminal court system, see:
http://raphaelgolbtrial.wordpress.com/
Presidential order seems to protect “whistle-blowers.
http://www.nationofchange.org/obama-order-protects-intelligence-community-whistleblowers-1350314959
Latest from the Koch Wars front. Seems the billionaire brothers have sent out a memo to all their employees telling them how to vote, and what they can and cannot put on their own Facebook or blog pages. Jesse LaGreca, who writes under the username “Ministry of Truth” has the gory and dirty details. Surely the Koch crime family ought to have known there would be at least a few whistleblowers in their vast financial empire who would release the confidential memo to reporters.
http://www.dailykos.com/story/2012/10/15/1144738/-Mike-Elk-exposes-political-intimidation-of-Koch-Industries-employees-as-3-workers-blow-whistle
The crux of the previous Peter van Buren article “On the run from America’s Stasi” — the title sums it up perfectly:
“My case also illustrates the crude use of “national security” as a tool within government to silence dissent. TheState Department’s Diplomatic Security office, its internal Stasi, monitored my home e-mail and web usage for months, used computer forensics to spelunk for something naughty in my online world, placed me on a Secret Service Threat Watch list, examined my finances, and used hacker tools to vacuum up my droppings around the web – all, by the way, at an unknown cost to the taxpayers.
Diplomatic Security even sent an agent around to interview my neighbors, fishing for something to use against me in a full-spectrum deep dive into my life, using the new tools and power available to government not to stop terrorists, but to stop me.
As our government accumulates ever more of what it thinks the American people have no right to know about, there will only be increasing persecutions as prosecutions. Many of the illegal things president Richard Nixon did to the famous Pentagon Papers whistleblower Daniel Ellsberg are now both legal (under the Patriot Act) and far easier to accomplish with new technologies.
There is no need, for instance, to break into my psychiatrist’s office looking for dirt, as happened to Ellsberg; after all, the National Security Agency can break into my doctor’s electronic records as easily as you can read this page.
With its aggressive and sadly careless use of the draconian Espionage Act to imprison whistleblowers, the Barack Obama administration has, in many cases, moved beyond harassment and intimidation into actually wielding the beautiful tools of justice in a perverse way to silence dissent.
More benign in practice, in theory this is little different than the Soviets executing dissidents as spies after show trials or the Chinese using their courts to legally confine thinkers they disapprove of in mental institutions. They are all just following regulations. Turn the volume up from six to ten and you’ve jumped from vengeance to totalitarianism. We’re becoming East Germany.”
I had to go to Asia Times for a copy. (I’d laugh if the stakes weren’t so high.)
“On the run from America’s Stasi”
By Peter Van Buren
http://www.atimes.com/atimes/Middle_East/ND12Ak01.html
(America’s Stasi? Yep. We have our very own now.)
Professor Turley,
Perhaps the Washington Post will give you access to the comments which were deleted. The one in which I’m interested mentioned COINTELPRO. I had one foot out the door when I saw it. I read the first paragraph, saw nothing offensive in it, and decided to read it later. I’ve skimmed the comments section twice now and can’t find it.
I can not describe my female dog by the word set forth in the dictionary but y’all can say things like Prophet which offends me. It offends me that a person gets granted some higher status than the rest of us by being called a Prophet. Particularly when he was a pedohile. Perhaps he was a precursor to the pedophile priests in the Catolic religion. Now if you said “Prophet the Pedophile” I might be pleased but it would offend most of you. Word Press censors the itchBay word off this blog. I tried to get a list off the Word Press website of words they censor but they are not forthcoming. You have driven one commentor off this blog by refusing to print her name.
As to Denmark. You are having trouble reconciling your tolerance for Muslims with their intolerance of your tolerance. The utube on the pedophile Prophet needs to be played there early and often.
The right to speak freely is not predicated on the right to offend. The right to be offended is reserved to those who are truly offended by a physical dart thrown at their body and stuck in their craw. Not a verbal dart. Even if the utube about the pedophile Prophet was intended to offend, it was only an image, only voice. Now, if they dug up the pedophile Prophets body and made fun of it on utube then that would be another matter. Perhaps that is next. Coming to a computer near you. All the world is a stage. Be fair. Be balanced. Be a fox.
I agree Roger, I think we are slaves to the government and the president because we are supposed to have freedom of speech and not only do we not have freedom of speech people are actually afraid to speak up and this is why we are in trouble
I couldn’t help but notice that “Report an offensive comment” is one of the Post’s options.
Free speech is but an illusion from where I’m sitting, but we keep pretending.
Thanks for the parable, David Blauw.
“An old Grandfather said to his grandson, who came to him with anger at a friend who had done him an injustice,”Let me tell you a story: I have felt a great hate for those that have taken so much, with no sorrow for what they do. But hate wears you down, and does not hurt your enemy. It is like taking poison and wishing your enemy would die. I have struggled with these feelings many times.”
He continued, “It is as if there are two wolves inside me; one is good and does no harm. He lives in harmony with all around him and does not take offense when no offense was intended. He will only fight when it is right to do so, and in the right way.
But the other wolf, ah! He is full of anger. The littlest thing will send him into a fit of temper. He fights everyone, all the time, for no reason. He cannot think because his anger and hate are so great. It is helpless anger, for his anger will change nothing. Sometimes it is hard to live with these two wolves inside me, for both of them try to dominate my spirit.”
The boy looked intently into his Grandfather’s eyes and asked, “Which one wins, Grandfather?”
The Grandfather smiled and quietly said, “The one I feed.” ”
~ cherokee parable
A comment that mentioned COINTELPRO was posted to the Washington Post column. I had one foot out the door when I saw it earlier. I can’t seem to find it. Anyone else?
Apropos of what I posted above about offending by not even speaking::
I can remember a few years ago when candidate-for-President, Barack Obama, did not wear a tiny American flag pin on the lapel of his suit. He caught instantaneous and virulent flak for that “unpatriotic” failure to do what some “offended” others — namely, Republicans — demanded of him. I suppose that in Newspeak that infraction would come under the heading of lapelcrime.
And the list of “offenses” (whether of speech or silence) only continues to grow….
Michael Murry: People offended by Obama not having a flag on his Lapel are people with a devil in their soul worshiping that flag like people worshiping clothing. Had Obama go on stage naked would still be Obama, but devils would still try to say he was bad if not worse because he stripped another idol off of his body..
I liked you on Seinfeld and Family Feud
Many years ago, I saw a sign on the newsstand in a drugstore I frequented. The sign said something to the effect that if customers saw something offensive on the newsstand, to report it to the manager so it could be removed. So I reported Reader’s Digest because it had several articles that were thinly veiled Republican talking points, and also some overly simplistic (and wrong) stories about science. The manager was polite, but could tell he did not take me seriously. I guess it depends on what you find offensive that will result in action.
Lona,
The key to FoS has been put forth a few times but here it is again : You can say what you wish but I don’t have to like it. It may stimulate my neurons and my amygdala which may result in a number of reactions. But causing physical harm is illegal. Period. It doesn’t matter that I’m offended. So my religion or race or sex has been smeared. So I get emotional about it. So what? Making someone angry through speech is not a crime. Criminalizing disrespect will not solve anything. If my enemies say what they want then at least I know who they are.
bugdrown You are reasonably minded. Have people be like you, and peace would be a thing that would be found.
If you think what someone has said about your religion, your position etc is wrong you should counter with more free speech. The idea that an offended party has the right to criminalize criticism or offensive speech so that everything will be “beautiful” Simply means that the rest of us will have to keep our mouths shut lest we offend and get thrown In jail or worse. I don’t know about others but I find that kind of silence neither beautiful nor civil . What is really happening here is that some people who are willing to react to speech with violence are being given the upper hand because people are afraid. I believe there is a word for that. I will let you all fill in the blank…….
The devil in peoiple is offended all the time. .jesus did not go around complaining about this, and that. People seem to think he did. The devil made jails.
“You cannot give offense to anyone unwilling to take it” — Buddha
If we must outlaw anything, then let us outlaw offense, not speech. That ought to take care of the legal end of things quite nicely.
I once read a science-fiction novel about a man who journeyed to the future and then came back to his own time. Upon his return, people asked him to describe the future society he had encountered. Said he: “They have only two laws. The first law says that you should not annoy other people. The second law said that you should not allow yourself to become annoyed too easily.” The moral of the story, according to the author, taught that you could give people a lot of freedom if you knew they wouldn’t abuse it. I always thought that this story involved one-too-many laws — the first — since if everyone obeyed the second law, the first would prove unnecessary.
So, again, I say outlaw offense and not speech.
One can always laugh at, or simply ignore, anything that anyone else says. Speech causes nothing, any more than does remaining silent. The onus of violent, oppressive behavior rests exclusively with those who demand to hear only what they wish to hear and who will not tolerate not hearing what they wish to hear when and where they demand to hear it If you doubt this, just see what happens when a United States Congressional Representative remains silent or catches a breath rather than enunciate two words in a single prepositional phrase during the so-called “Pledge of Allegiance.” When even silence or breathing become “offensive,” you can rest assured that taking offense will always happen because those taking it desire to exert power over the behavior of others yet do not have the intellectual or moral courage to recognize their own totalitarian motives.
Outlaw offense, not speech.
Gods word says judge yourself. Why can’t people do that simple thing?
– check out comment by Carl Street :
‘ I guess we will FINALLY have to let the German and Japanese people off the hook… ‘
at:
http://www.informationclearinghouse.info/article32729.htm
Comparing Our Fighting Men to Nazis
Drone Wars Protester Sentenced to Federal Prison
By David Swanson
Michael Murry : Japaneses people are right. Americans that war are as bad as the Germans with their spiked hats. Both do the same thing. Kill calling it good.
I read that article with wonderment without ever thinking who had written it, and I kept thinking “This is the stuff Turley is always writing about”. But then my phone died after I finished but before I could scroll back up. I completely forgot to check and I came here and … Duh … No wonder the topic seemed so familiar!
Good stuff, and very informative. I hope people read it and take heed.
First Amendment protections do not depend on the speaker’s “financial ability to engage in public discussion.” …Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest… The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech…. Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. Citizens United v. Federal Election Commission.