Charlie Hebdo two years later: Will America continue to protect free speech?

Saturday Jan. 7 marks the second anniversary of the attack on Charlie Hebdo, in which gunmen who identified with an Islamist terrorist group murdered 12 people at the offices of the magazine because it published controversial images of the Prophet Muhammad. It’s a good time to reflect on the often precarious state of free speech in the world today and to consider what the future holds for free speech here in America.

Start with the bad news. The attack on Charlie Hebdo was not the first of its kind or the last. We can trace attacks likes these back to the Ayatollah Khomeini’s 1989 fatwa against Salman Rushdie for his novel The Satanic Verses. Western governments did almost nothing in response, and, predictably, attacks on those who allegedly offend Islam continued. In 2004, Dutch filmmaker Theo van Gogh was murdered for making the film Submission. His collaborator, Ayaan Hirsi Ali, an outspoken critic of Islam, has lived under the threat of death ever since. In 2005, riots broke out across Europe and several cartoonists and others were threatened because the Danish newspaper Jyllands-Posten published images of Muhammad. 

{mosads}In his excellent book The Tyranny of Silence, Flemming Rose, the Jyllands-Posten editor who decided to publish the cartoons, chronicles the attitude of appeasement and victim-blaming following the crisis that has ensured attacks will continue. The Bush administration’s reaction to the Danish cartoons crisis typifies this attitude. With a perfunctory nod to the importance of free speech, Bush’s State Department condemned the publication of the cartoons as “offensive to the beliefs of Muslims” and suggested they should not have been published at all.  

This “yes, but” attitude toward free speech — “yes, free speech is important, but we shouldn’t offend others” — manages to sound like it supports the right while gutting everything about it that matters. If offending others is taboo, then free speech isn’t a right, it’s a privilege exercised at the sufferance of whoever has the thinnest skin. As George Orwell once noted, if liberty means anything at all, it means the right to tell people what they do not want to hear.

The “yes, but” attitude was on full display after the Charlie Hebdo attacks. Pope Francis called the magazine “provocateurs” and suggested that it got what it deserved. A “reaction could have been expected,” he said, adding that “[y]ou cannot insult the faith of others.”

Cartoonist Garry Trudeau, author of the Doonesbury comic strip, chastised Charlie Hebdo for “punching downward” at a “powerless, disenfranchised minority,” and he blamed the magazine for violence that broke out across Europe.

When the literary organization PEN America announced it would give Charlie Hebdo an award for courage, more than 200 members of the group protested the award, expressing the same sentiments as Trudeau. After the attack on a Muhammad cartoon contest in Garland, Texas, the New York Times led the charge, not against the attackers, but against Pamela Geller, the event’s organizer, whom it called an “Islamophobe” and a purveyor of “hate speech.” Many others joined the tirade. The message was clear: when killers lash out at their critics, the fault lies with the speakers who inflame them. Wall Street Journal columnist James Taranto aptly dubbed this attitude the “assassin’s veto. 

Unfortunately, there are many more examples of threats and attacks on speakers and appeasement of their attackers. In my own book, Defending Free Speech, I provide a concise summary of these incidents and the shameful reactions to them.

This attitude not only emboldens violent opponents of free speech, it lends moral force to the argument that offensive speech should be outlawed. After all, if speakers like the cartoonists and writers at Charlie Hebdo are really to blame for violent reactions to their speech, it makes perfect sense to prevent them from saying offensive things. If, as many critics charge, “words can wound,” then government has a responsibility to prosecute those who wield verbal “weapons.” We can see this attitude on college campuses and among many intellectuals today in America. For a glimpse of what it looks like when put into practice, look to European hate speech laws.

Simply put, hate speech laws ban certain types of speech that offend others. According to Paul Coleman, author of the book Censored, all European countries have some version of these laws. While there is no universal definition of hate speech, the European Commission against Racism and Intolerance, which advises governments on legal standards, defines it as the “denigration, hatred, or vilification of a person or group of persons” on the basis of “race, colour, language, religion or belief, nationality or national or ethnic origin . . . descent, age, disability, sex, gender, gender identity and sexual orientation.” Most European hate speech laws follow this general approach, although they differ on the subjects that are covered. Britain, for example, outlaws speech that denigrates people based on their race, national origin, and sexual orientation, but not their religion. Italy, Austria, and Greece, among a few others, include religion in the list. Germany and France have even broader laws that outlaw speech considered “insulting” to the honor or dignity of another person.

As Coleman shows, many people throughout Europe have been cited, arrested, or prosecuted for a variety of allegedly offensive statements, including criticisms of Islam, Catholicism, Scientology, homosexuality, and abortion, among many other things. Charlie Hebdo itself has been sued under France’s hate speech laws, and the actress Brigitte Bardot has been convicted and fined several times under the laws for statements about immigrants and Muslims. Late last year, the Dutch politician Geert Wilders was found guilty of “insulting a group” under the Netherland’s hate speech laws for saying he wants fewer Moroccans in the country.

The inherent vagueness of hate speech laws is reason enough to oppose them. But more fundamentally, government has no business regulating speech simply because it offends others no matter how hateful, idiotic, or bigoted it is. Government’s job is to protect our rights — which means to prevent others from using force against us — not to ensure that our feelings are preserved. Thomas Jefferson had the right idea when he said “[t]he legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

We can extend Jefferson’s statement beyond religion to any subject, and the point remains valid. For example, racist statements are vicious and false, but they do not in themselves injure anyone or violate their rights. So long as the offending person sticks to speech, no matter how harsh or stupid his views, we remain free to ignore him, to respond with our own speech, to walk away, or to shun him. It’s only when someone goes beyond speech and uses or threatens to use force that government has the proper authority — indeed, the obligation — to stop him. One can walk away from even the most offensive speech. Not so when the argument is made with a gun.

So it just isn’t true that words wound in the same way as physical force. That much is clear from the attacks on Charlie Hebdo and the Garland cartoon contest. If the attackers had instead hurled anti-Semitic or racist epithets at Geller or the employees of Charlie Hebdo, the impact and the consequences would have been very different. There’s no doubt that Kurt Westergaard and Lars Vilks, two of the cartoonists who drew pictures of Muhammad for Jyllands-Posten, would much prefer to live under the threat of harsh language than under the threat of death, as they now do. 

That’s not to minimize the ugliness of racist, anti-Semitic, or other forms of truly offensive speech. It’s simply to say that there is a qualitative difference between speech and force, which we ignore at our peril. Nor does protecting offensive speech mean we have to tolerate all views. We are free to criticize and shun those who say and advocate disgusting or obviously false ideas. And legally protecting offensive speech does not mean government must stand by while thugs harass and intimidate others. Again, there is a big difference between advocating horrible ideas and acting on them. It’s disgusting to promote anti-Semitism, but it is illegal to harass or threaten Jews or incite violence against them (or anyone else). 

Advocates of hate speech laws think they can legislate right thinking, but it just isn’t possible. People choose to accept their ideas. If they are to change their minds, they must be convinced. Government can compel someone to shut up, but it cannot make him believe even what is true. Outlawing “homophobic” comments does not convince anyone that homosexuality is moral. It only prevents them from discussing the issue with others, and it fosters resentment and the very hatred that the laws are supposed to prevent. Hate speech laws have not eliminated racism and anti-Semitism in Europe — arguably they are on the rise — they’ve simply driven these virulent attitudes underground.

On the other hand, consider all the true ideas that could be banned under hate speech laws. The Catholic Church was deeply offended by Galileo’s view that the earth revolved around the sun, so it forced him to recant. Darwin’s theory of evolution offended Christians everywhere. The Comstock Act of 1873 banned information about contraception from the mails on the grounds that it was “obscene.” Today, Donald Trump and many other politicians want to ban flag burning because it is offensive. Consider how an articulate critic of Islam like Ayaan Hirsi Ali or an atheist like Sam Harris would fare under hate speech laws?

Banning offensive speech does not lead anyone to truth or promote social harmony. It only stifles thought. To quote Jefferson again, “Reason and free enquiry are the only effectual agents against error.” If we really want to root out bad ideas, we must protect the right to think and to communicate. That means protecting the right to free speech — even speech that we hate.

The good news, of course, is that Jefferson’s view prevailed in America, giving us the First Amendment, which prevents hate speech laws from being passed here. But the First Amendment is only a parchment barrier, to use James Madison’s expression. It works only so long as people believe in the right to free speech. The Supreme Court has radically changed its interpretation of the Constitution in the past; it can do so again. Many intellectuals and college students in this country seem to want that.

The attack on Charlie Hebdo and the general climate for free speech in Europe serve as warning of where we could be if we don’t defend free speech. Will we?

Steve Simpson, a constitutional lawyer, is the director of Legal Studies at the Ayn Rand Institute. He is the editor of Defending Free Speech (ARI Press, 2016). Follow him on twitter: @ssfreespeech.

The views of Contributors are their own and are not the views of The Hill.