I had the pleasure this month of writing a piece on free speech in the leading policy magazine in Switzerland, “Schweizer Monat.” The piece is published in German (Charlies falsche Freunde or Charlie’s False Friends), which is particularly cool for my son Benjamin who is taking German at McLean High School in Virginia. The German version can be found here. Germany is currently our fifth highest supplier of readers with Switzerland close behind. Ironically, Harvard Professor Cass Sunstein also wrote a piece in the same issue this month. The translated column is below:
It was one of the largest and most moving marches in the history of Paris. There in front of millions mourning the massacre of journalists at the magazine Charlie Hebdo were Western leaders joined French President Francois Hollande arm in arm proclaiming solidarity to show support for free speech. Everyone wanted to proclaim “Je suis Charlie” (“I am Charlie”) but a few of the surviving writers could be forgiven for feeling a bit confused. After all, the victims at the magazine were threatened for years with prosecution. Indeed, one surviving editor said that the displays of solidarity with the magazine made him want to “vomit.” For civil libertarians, it is clear that when leaders insist that they “Stand with Charlie” it does not mean actually standing with free speech. To the contrary, the greatest threat facing free speech today is found in Western governments, which have increasingly criminalized and prosecuted speech, particularly anti-religious speech. Once the defining right of Western Civilization, free speech is dying in the West and few world leaders truly mourn its passing.
Around the world, speech is under attack under an array of hate speech and anti-discrimination laws. It is irony of a new liberalism that the one thing that the West will not tolerate is intolerance. In the name of pluralism and tolerance, speech is being curtailed that insults or degrades individuals on the basis of religion, race, ethnicity, gender, sexual orientation, and other characteristics. The result is a growing, if not insatiable, appetite for speech regulation that only increases after violent responses to controversial publications.
The most recent tragedy in France follows an all too familiar pattern from publication to prosecution. Consider what happened in 2005 with the publication of the Danish cartoons and the global riots leading to the murder of non-Muslims and burning of churches and homes. The West rallied around the right of free speech, but then quietly ramped up prosecutions of speech. It happened again in 2012 when a low-budget trailer of a low-grade movie was put on YouTube. The “Innocence of Muslims” trailer was deemed insulting to Mohammad and Islam and led to another global spasm of murder and arson by irate Muslims. Again, Western leaders professed support for free speech while cracking down further on anti-religious speech. Even in the United States, President Obama insisted that the filmmaker Nakoula Basseley Nakoula had every right to make the film. However, the next image that the world saw after that speech was filmmaker being thrown into a police car in handcuffs for technical violations of a probation on unrelated charges. The Obama Administration clearly wanted the world to see that he was arrested. It was the perfect solution: free speech defended and free speech deterred.
This pattern continued this year in France. After President Hollande led the march in support of free speech, French prosecutors launched a nationwide crackdown on unpopular speakers. Some 54 people have been arrested since the Paris terror attacks. One of those detained was Dieudonne, who has been prosecuted for anti-Semitic jokes in the past. He ran afoul of the laws by posing a Facebook statement that he felt like “Charlie Coulibaly” — merging the names of Charlie Hebdo and Amedy Coulibaly, the gunman who killed four hostages at a Jewish deli.
Not surprisingly, cartoonists and comedians seem especially vulnerable under new speech codes. For example, comedian Sabina Guzzanti was put under criminal investigation for joking at a rally that “in 20 years, the pope will be where he ought to be — in hell, tormented by great big poofter (gay) devils, and very active ones.”
Western leaders have increasingly spoken out against the dangers of free speech. For politicians, free speech an abstraction, the consequences of free speech tend to be more tangible in the form of riots and murders. Of course, we would not need free speech protections for popular speech. It is in the protection of unpopular speech that defines a nation. While much of that speech can be hateful, it can also be transformative and illuminating on subjects of orthodoxy or the government itself. It is no accident that the vast majority of violent incidents are reactions to criticism of religion. Silencing these voices does not resolve any divisions. It creates the false appearance of agreement as those divisions remain and fester under the surface. Yet, forced silence is still appealing to many in government. After the 2012 murders, 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.” Likewise, Australian Prime Minister Julia Gillard told the United Nations, “Our tolerance must never extend to tolerating religious hatred.” President Obama told the body that “the future must not belong to those who slander the prophet of Islam.”
For free speech advocates that future looks pretty bleak. Even when comments are themselves an expression of religious faith, Western government have cracked down on the speakers. For example, in Poland, Catholic magazine Gosc Niedzielny was fined $11,000 for inciting “contempt, hostility and malice” by comparing the abortion of a woman to the medical experiments at Auschwitz. Likewise, a legislator in Austria, a publisher in India and a city councilman in Finland were prosecuted for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9).
Some countries are now leading the West in the regulation of speech to deter people from publishing insulting or disparaging comments. Consider a few such examples.
• 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.
• France made the denial of the Turkish genocide of Armenians a crime but in 2012 a French court struck down the law. However, it remains a crime to deny that the Holocaust occurred.
• Famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy.
• In 2008, leading French author Pierre Péan, was put on trial (he was later acquitted) for racial hatred for derogatory things said about Tutsis in a book about Rwandan genocide. The case was based on four pages of the books in which Péan described Tutsis as having a culture of lies and deceit.
• In 2013, a mother was convicted of “glorifying a crime” after she named her son “Jihad” and then dressed the three-year-old in a sweater with the words “Je suis une bombe – I am a bomb” on the front, along with his name and ‘Born on September 11th’ on the back. He son was born on September 11, 2009.
• In Britain, for instance, a 15-year-old girl was arrested two years ago for burning a Koran.
• A 15-year-old boy was detained for holding up a sign outside a Scientology building declaring, “Scientology is not a religion, it is a dangerous cult.”
• An aide to British Foreign Secretary David Miliband was arrested for “inciting religious hatred” at his gym by shouting obscenities about Jews while watching news reports of Israel’s bombardment of Gaza.
• A Baptist street preacher, Dale McAlpine was charged with causing “harassment, alarm or distress” after a homosexual police community support officer overheard him stating that he viewed homosexuality to be a sin.
• Barry Thew, 39, was convicted after he wore a handmade tee shirt with offensive anti-police words saying“One Less PiG Perfect Justice” and “KiLL A COP 4 Fun.co.uk HA, haaa?”
• In 2013, Sandwich shop owner Neil Phillips, 44, was arrested, his computer seized, and questioned for hours because he merely made a joke about Nelson Mandela clinging to life. Phillips was writing about his problems with his computer online when he quipped “My PC takes so long to shut down I’ve decided to call it Nelson Mandela.”
• Comedian Guy Earle was found guilty of 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.
• Marc Lemire, the webmaster of a far-right political site, was punished for allowing third parties to leave insulting comments about homosexuals and blacks on the site. 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.”
• “The Rev. Stephen Boission and the Concerned Christian Coalition for anti-gay speech, censured future speech that the commission deemed inappropriate.” While the Human Right Commission found “no direct victim . . . has come forward,” it still ordered damages paid to a college professor to brought the complaint and ordered the defendants to stop any future such “disparaging remarks.”
• In 2008, right-wing publisher Ezra Levant investigated by a tribunal for his publication of the Danish Mohammed cartoons for “advocating hatemongering cartoons in the media” and allegations from a Muslim that he was “defaming me and my family because we follow and are related to Prophet Mohammed.”
• In 2008, Maclean Magazine was charged with hate speech for publishing an article written by Mark Steyn entitled Why the Future Belongs to Islam. The British Columbia Human Rights Tribunal, demanded answers on why a few pages of the book were viewed as derogatory by complaining Muslims.
These cases represent more than a lack of support for free speech. They represent a comprehensive assault on free speech. Indeed, one of the world leaders proudly proclaiming support for free speech in Paris was banned the publication of the Charlie Hebdo cartoons. Turkish Deputy Prime Minister Yalcin Akdogan called the use of the prophet’s image on the magazine an act of “sedition and provocation.”
While the United States has fared better under First Amendment jurisprudence, the voices of speech regulation have been heard here as well. Recently, after a rodeo clown wore an Obama mask, there were calls for a hate crime investigation. There have also been efforts to ban advertisements criticizing Israel in subways, which were overturned by the courts. More worrisome was the support of the Obama Administration of a United Nations resolution that affirmed the right of countries to criminalize anti-religious speech to avoid “incitement.” The law was widely denounced as a new type of blasphemy law drafted by Muslim nations allied with the United States. Muslim countries have long sought to convince the West that speech is an act of incitement – a premise that runs against the very grain of free speech. Resolution 16/18 succeeded in allying the United States and other Western countries with the notion of speech as a form of violence – an alternative definition for what remain blasphemy prosecutions.
The greatest tragedy in the aftermath of the Paris massacre is that few are truly “standing with Charlie” in the Western world. It was a moving moment to see millions gather under the famous statue depicting Liberty, Equality and Fraternity. However, the terrible truth is that when you sacrifice liberty in the name of equality and fraternity, you inevitably end up with none of the three.
Jonathan Turley is a law professor at George Washington University and the host of www.jonathanturley.org, a leading free speech blog.