The (messy) ethics of freedom of speech

A few days ago, I took part in a very interesting panel discussion on the issue of free speech. The panel was prompted by the tragic events that took place in Paris a couple of weeks ago. One of the most interesting aspects of the panel was that despite our disagreements, none of the participants actually thought that the brutal murders at Charlie Hebdo actually raise any particularly interesting issues to do with freedom of speech as it is usually understood. As far as I am able to tell, hardly anyone thinks that the cartoons that the satiric magazine has published over the years warrant censorship. Even commentators who believe that there are cases in which the state appropriately steps in to limit freedom of speech – cases in which speech promotes hatred toward an entire group, for example — acknowledged that Charlie Hebdo steered clear of the line separating ridicule directed at religion, religious symbols and religious beliefs on the one hand, and contempt or hatred directed at a group of people, on the other. Whatever the precise boundaries of the legal right to freedom of speech, there is near unanimity, among the panelists that I discussed the issue with, and among the innumerable commentators I have been reading on line in the last two weeks, that Charlie Hebdo should be protected by it.

Debate has had to do not so much with whether Charlie Hebdo has the right to publish the kinds of cartoons that has been their stock in trade, but whether they were ethically justified to exercise that right in the case of the caricatures of the Prophet Mohammed. The argument, put forward by people whose opinions I respect immensely, including Jocelyn Maclure and Jean-Pierre Proulx is that though the cartoonists had the (legal) right to publish the cartoons of the Prophet, they (morally) ought not to have done so, knowing the offense that those cartoons would cause to Muslims both in France, and around the world.

As many have noted, however, there is no right in a democracy not to be offended. There is a right not to be defamed or libeled, and in Canada there is a right not to be targeted by hate speech. When speakers (or writers, or cartoonists) stay within those limits, the thought runs, there is an obligation on the part of those whose religious beliefs may have been targeted to be sufficiently thick-skinned to take it, rather than an obligation on the part of speakers to censor themselves for fear that they will offend.

I must admit that I have a certain degree of sympathy for this line of argument. But it is, to use a distinction that has become fashionable among political theorists, ideal-theoretical. That is, it does not take into account certain hard facts about our radically imperfect world.

Let me explain. We all know the hoary expression “I’m not laughing at you, I’m laughing with you”. The expression is meant to express to an individual or a group who has been the butt of a joke that the joke was meant, as paradoxical as this may sound, as a mark of friendship and solidarity rather than as a sign of contempt or disrespect. What is not always picked up by those who defend what may at first glance appear as an attack in this way is that the degree to which an individual or group can be expected to reasonably accept a joke as an instance of “laughing with” rather than one of “laughing at”, is a function not so much of the content of the joke, but rather of the position that the person making the joke stands in relative to the person or group who is at the receiving end of the joke, and of the general relationship of trust or distrust that obtains between speaker and receiver. When jokes are proffered among equals in a context of relative trust, it is quite easy to view them as expressing, and even as strengthening, a relationship of civic amity and trust. Laughter can strengthen bonds of civic amity. Our ability to laugh at one another without causing hurt is a sign that we have reached a high level of trust.

When laughter is directed by members of socially dominant groups at groups that are socially marginalized and targeted for discrimination, the situation is radically different. It’s much more difficult to expect groups that are the objects of discrimination to react to jokes directed at their most cherished symbols and beliefs as “laughter with” rather than “laughter at”. In such cases, jokes risk exacerbating division and distrust, rather than expressing and cementing civic friendship, as they can do when relations between groups are marked by trust. And this is the case, regardless of the intention of the person making the joke.

It’s hard to deny that Muslim religious minorities are in precarious positions in many Western countries. Pundits and politicians have been making political hay for years now by associating Muslim communities as a whole with the small groups of extremists who have been carrying out murderous attacks like the ones that killed 17 people in Paris. So whereas in general one would hope to live in a society in which trust and equality obtain to a degree sufficient to warrant accusations of thin-skin among those who are unable to accept jokes being publicly leveled at them, it is clear that we do not live in such a society. It isn’t unreasonable for Muslims to feel that caricatures like those that were Charlie Hebdo’s reinforce their marginalization, and thus, to feel hurt by them.

Does that mean that the caricaturists were morally wrong, although legally justified, to publish the cartoons poking fun at Islam? Again, things are more complicated. Let’s distinguish two possible interpretations of the cartoons lampooning Islam. According to a first, the only purpose of the caricatures is to shock and cause offense. On this view, they are largely devoid of cognitive content, and have as their sole function to present images calculated to cause hurt. According to a second, the intention is to make a point about some religious beliefs and symbols, but to do so in a shocking way that one can foresee will cause offence. On this interpretation, the cartoons are making a point (though obviously a point with which one might disagree) about religion, but doing so in a shocking manner. According to this second interpretation, form is inextricably tied to content. That is, the cartoonists would not be saying exactly the same thing were they to prescind from expressing themselves through shocking images, and to make their points in more stolid prose.

The interests at stake in the two ways of interpreting Charlie Hebdo are clearly different. Though there is a right to offend, civic friendship depends upon our exercising prudence when we do so, and we appropriately look askance at those who use the right in a manner so potentially destructive of the civic bond. But if there is real communicative intent that does not fall foul of legal strictures against hate speech, incitement to violence, libel and slander, and the like, my view is that we should stand up not just for the legal, but also for the moral right of people to make the points they want to make, even as we devote ourselves to showing up those positions as mistaken. It is one thing to say that someone is morally wrong in what she says; it is quite another to say that she is morally wrong to say something that we consider to be morally wrong.

Are the Charlie Hebdo cartoons a case of “pure” offence, or are they intended to communicate something (which we may believe to be mistaken) about religious beliefs and symbols? I’ll confess to not having surveyed the cartoons published in the magazine thoroughly enough to say, though my sense from perusing the archive in a somewhat unsystematic manner is that they probably conform to the second interpretation, rather than the first. If this is the case, we find ourselves in the messy situation of having to uphold not just the legal, but also the moral right of satirists to express thoughts and display images that they can reasonably foresee will offend, while at the same time understanding those of our fellow citizens who have felt that the cartoons exacerbate their feeling of marginalization.

How do we extricate ourselves from this conundrum? First, we have to combat the causes of social marginalization that make it the case that many Muslims feel unable, in the present context, simply to laugh off the caricatures, as they might feel able to do were they more confident of their place in Western societies. Second, we have to make sure that we do not count some groups’ free speech interests more heavily than we do that of others. Indeed, the French state has not been as fulsome in its defence of free speech as it might have been in the wake of the terrorist attacks in Paris. If we believe that the right to freedom of speech should include the right to communicate ideas offensively, then we should not tolerate that the offense of some counts more in the eyes of the state than does that of others.


The (messy) ethics of freedom of speech — 18 Comments

  1. The problem is that politics and political commentary are not confined to the boundaries of the nation state, in this case France. While muslims are a minority in France, Islam, including political and radical Islam, is a very powerful supranational religion. CH is not part of an entirely domestic discussion, because its message – and audience who may take offence – are much wider than that.

  2. I don’t think the intention of the author is helpful here. In every instance, why wouldn’t an author say he’s trying to make some deeper point that offended parties are simply missing?

    E.g., let’s say the National Review put on their cover a cartoon of a naked fat black guy with a bucket of chicken wings. And as soon as you’d suggest it was racist, they’d rush to say, “Wait a minute, it’s a meta-commentary!” or something. And of course you’d view that as entirely disingenuous. But it’s not as though we can look into their hearts and divine their true intentions.

    Hence, in your scenario, we’re stuck with equating the morality of the action with its legality.

  3. I cannot quite tell if the author is arguing for state-enforced speech restrictions or not (I thought I knew until the last paragraph, where he seems to fault the French government for not prosecuting violations evenhandedly – as opposed to faulting them for prosecuting them at all).

    That being said, I doubt that sense-of-marginalization thesis is really what makes the difference. Surely, for instance, the same sorts of liberals who want to ban The Vagina Monologues because it is allegedly offensive to transgendered people do NOT want to ban speech that might be offensive to Christians MERELY because they would deny that Christians can ever rightfully claim to be a marginalized group, but ALSO because they consider Christian beliefs to be JUSTLY despised, and thus DESERVING of marginalization.

    If free speech rights become a victimology sweepstakes, then I don’t see how you avoid the kind of outcome that currently prevails in India, where the exchange of ideas becomes the casualty of a proxy war in inter-ethnic social positioning.

  4. On second reading, this sentence really jumps out at me:

    “[W]e find ourselves in the messy situation of having to uphold not just the legal, but also the moral right of satirists to express thoughts and display images that they can reasonably foresee will offend, while at the same time understanding those of our fellow citizens who have felt that the cartoons exacerbate their feeling of marginalization.”

    Two thoughts occur to me:

    (1) Supporting the legal right of satirists – or anyone else – to express thoughts “that they can reasonably foresee will offend” seems like the sine qua non here. For if we don’t support that right (in principle), then we can’t reasonably claim to support freedom of expression at all. (Inoffensive thoughts are not in need of any support, after all.)

    (2) Really, how much support is needed here, and what kind? I’m not aware of any CH covers re: Muslims that are anywhere near as obviously intentionally offensive as their depiction of the Holy Trinity ass-fu*king itself. And who could deny that Catholics – seriously believing Catholics, that is – are marginalized in contemporary French society? Do we need to “combat the causes of social marginalization” that leave Catholics to feel unable to laugh off such slights in that case? But isn’t the ultimate cause of that marginalization the fact that most of the French stopped believing in Catholicism? And how would it even be possible – or desirable – to combat that fact?

  5. @ Forrest

    While it isn’t possible to calculate the social marginalization of different groups, that doesn’t mean some groups aren’t more socially marginalize than others–which you seem to be suggesting with your comparison between Catholics and Muslims in France. Based on what little I know, the French have been much worse at integrating Muslim immigrants than either the US or Canada; instances of overt discrimination are well reported.

    Of course, the question of how to convince a population to be more accepting of different kinds of people is hard, but if the author had a good answer to that he’d probably win a Nobel Peace Prize or something.

  6. In France in particular, it seems to me that one issue is that while Charlie Hebdo and any other white satirists around may have freedom of speech to say and cartoon whatever they want about Islam, darkie Moslems have no such freedoms. If they say outrageous things, they go to jail for encouraging terrorism; there have been literally dozens of cases in the last week or two. This is no doubt related to the way French secularism always seems to end up curtailing Moslem freedoms but nobody else’s. Meanwhile, saying such things about Judaism in France actually is formally illegal–for important reasons, but the inequality is there. So, how much can we (or at least, the French) claim to be backing freedom of speech as a fundamental principle? The free speech flag France and “the West” are wrapping ourselves in seems quite the flag of convenience; I wonder what Julian Assange thinks of our commitment to freedom of speech?
    I believe in freedom of speech. Maybe I’m thick–I haven’t been able to figure out what Charlie Hebdo is supposed to be saying with their cartoons beyond “You dirty stupid Moslems”, but certainly they should have the right to do it. Most of the authorities going all weepy on the subject right now, however, do not, except for speech they already agree with–and “You dirty stupid Moslems” seems to be speech they agree with.

    On the double standard, one I learned about seems particularly ironic. Remember when the Egyptian military were re-asserting dictatorship and massacring protestors? So Charlie Hebdo ran an issue where the cover had a dumb-looking stereotypical Moslem clutching a Koran and getting mowed down by bullets, with the caption “The Koran is shit, it doesn’t stop bullets.” Which strikes me as pretty cold and vicious, but OK if mocking the death of protestors against a military coup floats their boat, whatever. So just in the last couple of days, someone took that cover and photoshopped it a bit–changed the hair, subtracted the beard, and most importantly put a copy of that issue of Charlie Hebdo in the guy’s hands instead of the Koran. And changed the caption to “Charlie Hebdo is shit, it doesn’t stop bullets”. So OK, still pretty cold, but a bit more genuine satire there, some irony–through a nasty twist of fate their own comment can be pointed back at them. But aside from that, it’s about as directly comparable as you can get–the statements are precisely as outrageous as each other because they are literally the same statement. So when Charlie Hebdo published it, I don’t know if there was any controversy but it doesn’t seem as if anything in particular happened. However, when the photoshopped version targeting Charlie Hebdo was published, the vile perpetrator went to jail and I believe has been sentenced to 15 months or something. Moslems in France will continue to wonder if the rule of law in general, and “freedom of speech” in specific, are not principles but merely excuses to hose them.

  7. James –

    From what I know, the situation of Muslims in France is rather complex. On the one hand, there are more Muslims active in French public life compared to, say, Germany. On the other hand, there is still a lot of exclusion plus the National Front, etc. But then the Le Pen crowd would certainly claim that THEY are marginalized in French public life, and I don’t see how playing the victimology sweepstakes helps one deal with anyone’s claims.

    (Not to mention that, again, many right-thinking people would say that the Le Pen crowd deserved to be marginalized, so marginalization per se can’t be the main issue.)

  8. I’m sure the Le Pen crowd would make such claims, but why is that relevant? Men’s Rights dweebs claim men are marginalized and white Republicans claim whites are marginalized by the remotest recognition of the racist burden blacks still struggle under. Just because some drip claims something ludicrous to gain advantage and find a target for their free-floating anxiety doesn’t change reality. The existence of competing claims of marginalization doesn’t mean all such claims cancel out. Some people actually are marginalized, others aren’t, and the situation of still others is no doubt complex.
    But if you go to Paris, you will find (as in many other places) that the people doing the shit jobs are black (which in France typically means North African Moslem) or Middle Eastern. I don’t think Catholics are dominating the night shift cleaning and security jobs or the stoop labour in fields.

  9. PLG: you miss my point.

    I do think that *if* you’re going to make “marginalized” status the main claim to legitimacy, then you need some reasonably objective standard of “marginalization”, otherwise the claims will proliferate, and freedom of expression will be unduly restricted as a result (India is a case-in-point).

    But my main point was that “marginalization” isn’t really the issue, because most people are happy to see *some* groups marginalized – as your comment illustrates. So marginalization per se is not the issue. The issue is who deserves to be marginalized, and for what reasons. And we can’t address that issue except through a free exchange of ideas (the result of which may be marginalizing for some).

  10. To my understanding, the issue here concerns the not-too-hypothetical that representatives of a marginalised group are precisely those who ask to constrain the freedom of expression, not to expand it. Has it somehow become ‘what score on the disadvantage scale is sufficiently high to have a moral claim regarding the freedom of expression?’.

  11. Anne Ramsay: Well, again, that would fly a lot better if the non-disadvantaged had a plausible claim to actually support freedom of expression.
    John Forrest: I would suggest that the kind of groups it is wrong to marginalize are the sort that normally appear in lists of groups that should not be discriminated against in constitutions, declarations of human rights and so forth: Genders, races, religions and so forth. If “Le Pen” fascist-lite ideologues, for instance, get “marginalized” in the sense that their political discourse is widely disliked, I don’t think that violates anybody’s rights. Seems to me you’re creating a problem that doesn’t exist by conflating distinct issues.
    Let me put it in a way, then, that’s a bit more blunt: In France, the human rights of Moslems, including their right to free speech, are systemically violated in a way that other people’s human rights are not. This leaves the upholders of that system in a problematic position if their opposition to Islamic terrorism is supposed to hinge on support for freedom of speech and, in general, human-rights-based discourse. They are left admonishing people to respect rights with one hand, while with the other they deny those people those same rights. It has a lot less force than if they genuinely upheld those rights. Does that spell things out more clearly than the terminology of “marginalization”?

  12. Purple Library: but what is the upshot of ‘that would fly a lot better’? It’s a nonideal situation. So what do we do about it right here, right now?

    Also, there’s a wider issue that I’m not sure has been sufficiently noted: the issue here is not just whether someone finds CH offensive or not by portraying the prophet in a specific and less than admiring way. The issue here is whether a group has the right to impose its particular ban of non-graphical representation of the prophet on everyone else. For devout muslims, *any* such depiction is offensive. It’s not the particular content, in that case, but rather the very expression itself that is rejected. Do you think that there exist a moral right to prohibit the graphic very representation of the prophet in principle?

  13. That’s not an issue at all. Nobody has advocated such an imposition. And in answer to your question, if I could just quote my initial post which it appears you did not read:
    “I believe in freedom of speech. Maybe I’m thick–I haven’t been able to figure out what Charlie Hebdo is supposed to be saying with their cartoons beyond “You dirty stupid Moslems”, but certainly they should have the right to do it. Most of the authorities going all weepy on the subject right now, however, do not, except for speech they already agree with–and “You dirty stupid Moslems” seems to be speech they agree with.”

    What I’m saying is that it’s all fine for us to hang around on the sidelines wringing our hands about those terrible Moslems, but one abuse of freedoms will tend to lead to another; the authorities themselves have little standing to object to abridgement of free speech unless and until they cease abridging free speech. So I would suggest that one thing we need to do about it right here, right now is to make up our minds. If we are going to back freedom of speech then we have to include vicious extreme Moslem speech as free, not just vicious extreme anti-Moslem speech. If on the other hand we’re going to criminalize hate speech we have to include hate speech against Moslems, not just formally but in real life. And we can’t have laws about “encouraging terrorism” which let us jail Moslems when they get out of line while ignoring everyone else.
    If we have a “rule of law” which does not treat all equally, which does not include certain groups among those protected, then the system loses legitimacy vis-a-vis those groups. At a certain point then for those groups, vigilantism has as much legitimacy as the supposed rule of law; the only way to stop this is to maintain the legitimacy of the rule of law by insisting on true equal treatment under the law. I wouldn’t argue that the French state has reached the point of complete loss of legitimacy vis-a-vis the Moslem and/or racialized population. But they’re working on it, and if they weren’t I think an action such as what happened to Charlie Hebdo would be far less thinkable.

  14. PLG: none of this answers my question, and I’m not sure why you felt that a lecture was in order. I see your point, I disagree with the framing of the issue. The game of identifying hypocrisies possibly helps us understanding what *not* to do, but it doesn’t really provide much in terms of action-guiding insights.

  15. You asked “Do you think that there exist a moral right to prohibit the graphic very representation of the prophet in principle?”
    This is arguably an insulting question. I think my self-quote makes pretty flipping clear that I had already answered it, which leaned me more toward the suspicion that the question was meant in an insulting way.
    As to the rest, you asked “What do we do about it right here, right now?”
    I advocated responding by putting our money where our mouth is when it comes to ideals such as freedom of speech and equality under the law, so that they do not come into sufficient disrepute for some members of marginalized/rights-deprived groups to respond by outright abandoning them. Whether you think that will help or not, it is an answer as to what we should do. So it certainly answers your question. Adequately? Completely? Perhaps not, but it’s far from off topic.
    I’m not clear on the difference between “doing something” and “not doing” something we are currently doing. A change in policy is an action. If we refrain from jailing people for their speech who, under status quo arrangements, we would have jailed for their speech, that is surely an action. If we cease banning someone’s mode of dress that we had been banning, that is surely an action. If we don’t shoot people for loitering (while black or Moslem or what have you) who we otherwise would have shot, that is surely an action. If we don’t convict people on less evidence than others, when we previously would have, that is an action. If we drop laws about “encouraging terrorism” which throw a broad net around speech acts by particular sorts of people but not everyone else, that is an action.

  16. Daniel seems to me to be seriously underestimating the depths of offense to many Muslims caused by the publication of mocking images of the prophet Muhammad. Even if they were no longer socially marginalized they wouldn’t be able to laugh off the caricatures since they view them as dishonouring their prophet because blasphemous and idolatrous.

    Honour is also very important to many of us who are not Muslim. Say that an ideological nudist puts out a call for sympathizers to send him nude photos that they’ve taken of their lovers and he publishes the ones he receives for all to see. Many of the photos’ subjects are mortified. Would Daniel truly defend the practice as being not only legal (for it is: but also moral?

    For more along these lines, see here:

  17. Pingback: Pour un exercice responsable de la liberté d'expression : le cas Charlie Hebdo - Thinking outside the box