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Continued: Free speech is worth the pain

  • Article by: STEPHEN L. CARTER , Bloomberg News
  • Last update: September 24, 2012 - 6:56 PM

So now it's the French who are frantically closing their embassies, worried about violent mobs enraged after the satirical magazine Charlie Hebdo published cartoons, some of them pornographic, mocking the Prophet Mohammed.

France's official response has been more restrained than last week's raft of apologies from the U.S. government after violence blamed on the incendiary video "Innocence of Muslims" swept across the Middle East, leading to attacks at U.S. diplomatic outposts and the death of four U.S. diplomats. But some commentators argue that if speech makes people angry enough to do terrible things -- like murder -- we should consider ways to restrain it.

In light of this swirling argument, and the swirling violence that influences it, we should take a moment to consider what it is that makes free speech so valuable, and its suppression so dangerous. This is a moment not to yield to demands for censorship, but to defend and even celebrate the freedoms that the makers of the video and the cartoons so grossly abuse.

A useful place to start is Dworkin vs. L.F.P. Inc., a nearly forgotten defamation ruling issued by the Supreme Court of Wyoming 20 years ago this week. The case involved a Hustler magazine article attacking antipornography crusader Andrea Dworkin. The article called her a number of filthy names, and went on to contend that Dworkin "advocates bestiality, incest and sex with children." She sued, claiming defamation. She lost.

The Hustler article may have grossly distorted her ideas, the court wrote, but the First Amendment protects the right even of so scurrilous a magazine to publish so scurrilous an article about so public a figure: "Ludicrous statements are much less insidious and debilitating than falsities that bear the ring of truth. We have little doubt that the outrageous and the outlandish will be recognized for what they are."

The article was trash. The article was false. The article was inflammatory. Dworkin's outrage was entirely justified. But the court reached the right result. Dworkin was a public figure, said the court, and therefore even so unsympathetic a defendant as Larry Flynt, Hustler's publisher, had the right to make absurd assertions about her beliefs, and to engage in hyperbole intended to hold her up to ridicule.

The best statement of our constitutional rule remains the one announced by the U.S. Supreme Court 40 years ago in Police Department of the City of Chicago vs. Mosley: "To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship." The government, said the court, "has no power to restrict expression because of its message, its ideas, its subject matter, or its content."

That's why the American Nazi Party couldn't be prevented from marching in Skokie, Illinois, in 1977. That's why the members of Westboro Baptist Church were free to picket the funeral of Lance Corporal Matthew Snyder in 2006. That's why protesters have the right to burn the U.S. flag.

None of these actions is admirable. What's admirable is the broad respect for liberty that protects them.

Of course, there are exceptions. But they don't apply here. For instance, a remarkable number of commentators, borrowing from Justice Oliver Wendell Holmes, have compared the "Innocence of Muslims" video to falsely shouting fire in a crowded theater. Others have drawn analogies to Brandenburg vs. Ohio, the 1969 case in which the Supreme Court suggested ("held" would egregiously overstate the case) the possibility that speech directed to inciting and likely to incite "imminent lawless action" might not be protected under the First Amendment.

These are dangerous arguments. Consider how we would respond if an antiabortion group were so furious at a prochoice film that it blew up the theater. I very much doubt that we would be accusing the filmmakers of incitement, even if they knew in advance that the terrorists were lurking.

One might object that there is a difference between insulting an individual and insulting a religion. There is indeed -- and our sympathies should be with the individual. Followers of a religion can turn to their fellow believers for solace. Often, they can turn to a tradition that has survived centuries or millenniums of mockery and abuse. Believers don't turn from God because God has been mocked; they turn from the mocker.

The individual, by contrast, must bear the insults. The more public the individual is, the greater the abuse that the Constitution allows us to heap on his or her shoulders. The cost of freedom is indeed terrible. But the cost of restrictions on that freedom is more terrible still.

That a video or a cartoon offends many devout Muslims is surely a fact, but it isn't an argument. I frequently hear the Lord's name taken in vain. For some of us, the name of God remains sacred, and hearing it profaned is painful. But the First Amendment wisely denies us legal recourse. (That's why the Obama administration was wrong -- very wrong -- even to ask YouTube, which hosts the video, to "review whether it violates their terms of use." A chill is a chill.)

In the United States, we routinely deride religions. We make bestsellers of books launching often-uninformed attacks on the very idea of God, and give rave reviews to a Broadway show making crude mockery of Mormonism. The insensitivity and boorishness of those who enjoy attacking the faith of others does not strip them of their rights of freedom of expression.

Now, one must reasonably ask whether we would be a better country if we were more restrained. The philosopher Michael Sandel in particular has asserted that our freedoms are vindicated in our ability to restrain rather than indulge our urges. This is a fair point, and a correct one. In the manner and multitude of our self-expression, we are growing more childlike, not more mature. That failing, however, lies in our collective character, not in our respect for liberty.

I have said before that I am a near-absolutist on the subject of free speech. I defend the right of imbeciles to express themselves in ways that are offensive and wounding to people who have done nothing to deserve it. Naturally one would prefer to defend free speech in the name of such once-banned classics as "Ulysses" and "1984." One would prefer to defend a free press that is ferreting out the Pentagon Papers.

Those opportunities rarely arise. If our culture instead produces offensive junk, then that is where the ramparts must be built -- not because offensive junk is a positive good, but because the power to censor is far too dangerous to be placed in the hands of government.

(Some observers have pointed out, correctly, that even if the U.S. government can't censor the video, Google Inc., owner of YouTube, is a private corporation and can do as it likes. Given Google's size, and YouTube's ubiquity, I am wary of endorsing any call for a crackdown.)

When we remember the periods of censorship in our history, we remember them, as we should, with embarrassment. There are censors today -- Dworkin herself, who died in 2005 and wrote such brilliant, cutting prose, was often among them -- and the impulse is always tempting. Words and images do wound. Wounds untended do fester. But aside from simply turning away, the only antidote the Constitution allows is arguing back -- in short, more speech.

In much of the world, governments have taken on the responsibility of protecting their people from unpleasant images. In the United States, we have gone a different way, choosing a more genuine freedom of speech. But speech is only free if we protect it when we hate it.

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Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University.

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