THE DEATH OF FREE SPEECH

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

128 thoughts on “THE DEATH OF FREE SPEECH

  1. Canada outlaws “any writing, sign or visible representation” that “incites hatred against any identifiable group.”

    Does that mean that Muhammad’s Hadith (recordings of deeds and sayings attributed to Muhammad) are outlawed in Canada?

    “The Day of Judgement will not come about until Muslims fight the Jews , when the Jew will hide behind stones and trees. The stones and trees will say O Muslims, O Abdullah, there is a Jew behind me, come and kill him. Only the Gharkad tree, (a certain kind of tree) would not do that because it is one of the trees of the Jews.”

    This hadith has been quoted countless times, and it has become a part of the charter of Hamas.[53]

  2. This piece is completely biased. T uses cases where homosexuals and Muslims are the victims of hateful words and tasteless jokes seemingly to imply that Western freedom is being undermined by protecting these minority classes. So by allowing any majority citizen to harass minorities by any speech is the state sanctioning such acts? If the kkk is allowed to burn crosses and pass out hateful leaflets and the case come to court, and the court says “sorry black people but cross burning is protected speech” it would seem the state is protecting the haters. It sends the signal that others can do so as well. I’m not sure free speech is not just a fig leaf in the West for minority harassement to teach them their place in society? Also why is it that white people’s freedom has to be bore on the backs of Muslims and other minorities. If the intention of free speech is to protect political discourse I have no problem with it but in majority of the times it is used to humiliate, intimidate certain voiceless people. Besides speech already has limits under tort laws

  3. anonymously posted. It was against German law and taken down only in Germany. If I posted on twitter I was going to say like Romney kid, injure the president, it could be seen as a threat to the president which is illegal. Could twitter force the removal of that?

  4. ‘…if you’re not in the “club”…’

    “Why You Don’t Even Know That A Presidential Candidate Was Arrested Last Night” – MOC #179
    3:19

    It’s a two part dictatorship.
    And if you’re not in the “club”, you get clubbed.
    –MidNightRider2001

    http://theintelhub.com/2012/10/17/green-party-presidential-candidate-jill-stein-arrested-trying-to-gain-access-to-presidential-debate/

    In what can only be described as an absolute smack
    in the face of this once free country,
    Green Party Presidential Candidate Jill Stein
    and her running mate have been arrested
    while attempting to gain access to tonight’s debate.

    Stein was attempting to gain access
    and protesting not just her parties exclusion from the debates
    but the fact that NO third party,
    including Libertarian candidate Gary Johnson,
    is being allowed inside the “corporate” debate…
    — Alex Thomas,
    Green Party Presidential Candidate Jill Stein Arrested
    Trying to Gain Access to Presidential Debate

  5. I love that little film clip called “The Innocence of Muslims”! It’s hilarious!

    I have plans for several little clips now, low budget and kind of easy to write. For starters, “The Innocence of Helen Fahey” and “The Innocence of James Stratoudakis” and “The Innocence of Gilbert K. Davis” — yay!!!! 😛

  6. blame the clergy for lying to you, I did not. therefore you have no idea what happened.

    the avocado pit is bigger so that I don’t cut my fingers on the small pits when making guacamole. and when your having sex I try not to watch. but a circle never ends.

  7. THE LIVING GOD,

    I’ve been meaning to ask you, what’s up with avocado pits? A lot of wasted real estate there. And while we’re at it, diamorphic sex causes a lot of friction both actual and societal. Is there anything you could do about that? And pi. Why can’t you just make it end? Everyone cuts it off at 3.14 anyway.

    Thanks for your non-existent (or at least non-applicable) time.

    I’m a big fan of much of your alleged work.

  8. freedom of speech is still available to those on, ‘chat about god’, and ‘chat about jesus’ websites. so they impersonate ME legally. the antichrist says that it is fine as long as they get the word out that you go to hell for not following ME. you sit and watch it on your television sets. listen to them lie to you.
    freedom of speech is not dead. but the church still wants ME silent.

  9. As an addendum to my previous comment on the New York “criminal satire” case, a commentator on the Telegraph site has stated:

    “I’m not impressed by that case. The defendant didn’t just employ speech, he took several actions including creating email accounts in the names of other people, and then using those accounts to impersonate them, and spread lies and disinformation about them. When he got caught, then suddenly he says it was ‘parody.’ Nonsense.”

    To which I replied:

    “On what grounds to you believe the defendant spread ‘lies and disinformation’? He ‘created email accounts in the names of other people’ for the purpose of mockery, which is a form of expression. Satire and parody consist precisely in putting false statements in the mouths of others, to expose certain truths. Yet the judge in this case ruled that ‘good faith and the truth are not defenses.’ If you start distinguishing between cases you’re ‘impressed’ by and expressive ‘actions’ that you find offensive, then you’ve already gone down the road towards criminalizing speech.”

    I would add here that we appear to be strangely ignorant in this country of the varieties of satirical expression. The prosecutors in New York distinguished between “maliciousness” and parody; apparently they believe that parody is “just for fun,” and that “malicious” satirical speech can be criminalized regardless of the principle of free expression.

    See the case documentation at:

    http://raphaelgolbtrial.wordpress.com/

    and see the Telegraph exchange at:

    http://blogs.telegraph.co.uk/culture/jamesrhodes/100066855/in-defence-of-trolls-the-fearless-internet-sages-who-bring-us-the-truth-at-the-expense-of-personal-hygiene/#disqus_thread

  10. MM – “It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. A nervous tic, an unconscious look of anxiety, a habit of muttering to yourself — anything that carried with it the suggestion of abnormality, of having something to hide. In any case, to wear an improper expression on your face (to look incredulous when a victory was announced, for example) was itself a punishable offense. There was even a word for it in Newspeak: facecrime, it was called.” — George Orwell, 1984

    Now we call this “Stop & Frisk”. Everyone wonders if they will be arrested this time or beaten up or both-or just cursed at by the cops. It keeps crime down according to King Bloomers

  11. And of course we have ‘secret’ trials now:

    http://www.bradleymanning.org/news/why-cant-you-be-reasonable-asks-judge-in-the-case-to-end-secrecy-in-bradley-mannings-trial

    When Army lawyer Capt. Chad Fisher said that the court wasn’t constitutionally required to provide public access to documents like prosecution briefs, transcripts, and rulings, Judge Margaret Ryan interrupted him to ask what she called a “common sense” question.

    “Why can’t you just give it to them? Instead of making this a constitutional case, why can’t you just be reasonable?”

    Fisher was unable to directly answer the question. Instead, he gave an array of responses that circumvented the basic issue: he repeated his belief that the court wasn’t obliged to make these records public, he said the fact that the public could attend the hearings meant they were “open,” he complained that the defense wasn’t asking the proper authority, and he reiterated the government’s position that the availability of FOIA provided sufficient public and press access.

    The five judges repeatedly questioned and challenged each of Fisher’s points, particularly the idea that FOIA requests, to which the government frequently takes weeks, months, or even years to respond, provided sufficient and contemporaneous access, especially considering the fact that FOIA requests in this case have already been denied. They also pushed back on Fisher’s claim that “Nothing has been withheld” from the public and the press, based on the idea that attending the hearings amounts to fully accessing the proceedings.

    “How is oral argument sufficient if you can’t read the briefs?” one judge asked.

    “It’s not as if they’re speaking a foreign language,” Fisher responded.

  12. First off, thanks Professor for this post. To me, this issue is at the base of our freedoms and liberties, and it is with great dismay that I see these hard-won liberties being destroyed by those we have entrusted to guard them.
    We are all familiar with Voltare’s comment on free speech as well as Franklin’s statement about security and freedom. I spent a lot of time last weekend mulling over this article, mostly because I see what I perceive a dangerous trend among some of the people who post here.
    JT> “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.” <
    I am very glad to see someone finally state the obvious…that the usual interpretation of this bon mot is to take the statement out of context. When the FF chose to put the First Amendment into the Constitution, it is my belief that, given what they had seen in Europe as far as speech/journalistic suppression in the various monarchies with which they were familiar, they saw this freedom, not only as the bedrock (hence it’s place as the FIRST amendment), but I notice that there was no LIMIT placed on what might be said. To me, the FF intended the First amendment to be absolute. Now, as I understand history, the first ten amendments ‘granted’ nothing. These were considered inalienable rights granted by “Nature, and Natures God”. Since we are in the midst of a Presidential election, think back to what you have read about the campaign between Thomas Jefferson and John Adams. Historians say it was probably the dirtiest and most libelous campaign ever waged. Both sides slung the mud with equal ferocity. However, no one began clamoring to limit speech on the grounds that it was ‘offensive’. As has been noted here by people much smarter than I, there IS no right not to be offended. Does anyone really think that, without free speech, incendiary though it might be, we would have ever forged a Revolution? During the run-up to the Civil War, there was an incident where one Senator physically attacked another Senator with his walking stick on the floor of the Senate and very nearly killed him over something he had said in debate. However, there was no outcry to limit free speech. It is true that absolute free speech can be offensive and even dangerous. In the 60s, when China began to have internal problems, Mao Zedong began what became known as the ‘Hundred Flowers’ campaign; “Let a hundred flowers bloom, let 100 thoughts contend”. People in China began to use this new-found freedom of speech and, in due course, Mao saw what a danger it was. Millions were arrested and sent to forced labor, imprisoned and even executed. The reason? They were told that they had not ‘bloomed correctly’.
    We started years ago down this slippery slope of censorship and loss of free speech, (which as I see it, is essentially the same idea) years ago. For some reason, people in this country got the idea that free speech is fine, in the first person, but not in the third. We seem to have become a nation full of people with such delicate sensibilities that we need to give up some of our rights (free speech being one of them) in order to placate those who wear their collective feelings on their proverbial sleeves. Try and make a joke at the airport and see what happens. Tell a TSA screener that they are acting like Nazis. Try to make a political statement at a political convention and you get pushed into a ‘free speech area’ or you get tear-gassed by a militarized police force (shades of Kent State!).
    Speech is blasphemous. Speech is hateful. Speech is discriminatory. Free speech is ALL those things. And the moment we surrender that most important of rights, we are lost as a nation. IMHO.

  13. OS that is it iin a nutshell, what is offencsive to you may not be to me so therefore everyone ends up being afraid to say anything.

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