The Limits of Free Speech

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Excerpt from The Secular Outlook: In Defense of Moral and Political Secularism, by Paul Cliteur (Wiley-Blackwell, 2010). Reprinted with permission from the author.

From Chapter 3: Freethought II: Freedom of Expression

The Limits of Free Speech

I believe that in Khomeini’s fatwa on Rushdie we encounter the limits of free speech. Khomeini may say “I do not like Rushdie’s book.” He may say: “Do not buy Rushdie’s book.” As Salman Rushdie wrote in 2005: “Democracy is not a tea party where people sit around making polite conversation. In democracies people get extremely upset with each other. They argue vehemently against each other’s position.”[51] Rushdie also said that you “can be savagely rude” about what a person thinks, and so Khomeini may disagree vehemently with Rushdie. But he may not say: “Kill the writer of the book.” That distinction is essential. In a democracy, says Rushdie, you can argue vehemently against each others positions, but you don’t shoot.[52]

But now suppose someone else retorts: “Listen, this is a matter of free speech. Khomeini is free to say whatever he likes. You may not like what he says, but he is free to say it.”

What ought the answer to be?

Undoubtedly that free speech is not a holy principle and has its limitations. The “clear and present danger test” that was developed in American legal thought in the wake of Mill’s approach to free speech seems relevant here. Khomeini’s fatwa creates a clear and present danger that the writer will be killed as a result of this pronouncement (which has not happened, fortunately, although Hitoshi Igarashi (1947–1991), the novel’s Japanese translator, was stabbed to death in 1991 and Ettore Capriolo (1926– ), its Italian translator, was seriously wounded).[53] This underlines the significance of Khomeini’s words that not only “the author of the book entitled The Satanic Verses” was “sentenced to death” but that this verdict also applied to “those involved in its publication who were aware of its content.” A translator’s job is far from harmless nowadays, at least with regard to certain books. This is particularly true if we realize that Rushdie was protected by the British authorities, whereas translators were more or less soft targets.

It is important that we see the difference between the “clear and present danger test” and other criteria for limiting free speech. The problem with Khomeini’s fatwa is not that it shows no “respect” for a British novelist, nor that it fails to stimulate “dialogue.” The problem is not that his words fissure society. These may be fashionable concepts nowadays, but they are unsuitable as criteria for restricting freedom of speech, although, judging from the frequency with which they are referred to, many people seem to think otherwise. Khomeini’s fatwa is a problem, because it incites murder, that is, “physical harm” in Mill’s terminology. And the possibility or likelihood of physical harm seems a good justification for limiting free speech. Or, in the words of Mill: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against its will, is to prevent harm to others.”[54] This also has implications for the limits on free speech:

opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.[55]

This approach to free speech was further developed by Oliver Wendell Holmes (1809–1894) in Schenck v. United States (1919).[56] This was a case in which the defendants were accused of violating the Espionage Act. They had mailed circulars advising potential conscripts not to join the army. They were convicted for this and appealed. The Supreme Court, however, confirmed the verdict. According to Holmes, who wrote the opinion, the conviction did not violate the American Constitution because freedom of speech is not absolute. The most stringent protection of free speech would for instance not protect a man falsely shouting “fire” in the theater. The question is, said Holmes:

Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

In wartime it was a substantive evil that people should be discouraged from fulfilling their duty to do military service, so here the “clear and present danger test” led to a curtailment of the right to freedom of speech.

The subsequent development of the test, however, led to a further protection of free speech rather than to other criteria by which to assess its limits. That became clear in Abrahams v. United States (1919) where the defendants were accused of furthering the Bolshevik Revolution in the United States of America. They were convicted, also by a majority of the Supreme Court, but Holmes dissented because the pamphlets distributed by the defendants did not pose a threat to the security of the United States.[57] Holmes characterized the defendants as “poor and puny anonymities” and although he found their creed ignorant and immature they had their right to believe in it. Holmes ended his plea for free speech with a passionate espousal of the “free trade in ideas…. It is an experiment, as all life is an experiment.”[58]

It is clear that limiting free speech on the basis of the “clear and present danger” clause is justified if, and only if, the form of words that is under scrutiny contains some instigation to harm others. So “Kill Rushdie” is not protected under the First Amendment of the American constitution nor should it be protected under the freedom of speech clauses in European human rights law. But it is perhaps worth considering the following – rather twisted – interpretation of the “clear and present danger” clause: “Any utterance that puts someone in danger, including the person who actually makes that utterance, ought not to be protected by legislation guaranteeing freedom of speech.” In this – I repeat: twisted – interpretation The Satanic Verses would not be protected, because writing and publishing the book caused – in a world where there are terrorists around – a “clear and present danger” that the writer would get hurt.

The reason why I emphasize the possibility of such a twisted interpretation is because after the Rushdie affair, the Danish cartoons affair, and the murder of Theo van Gogh, many people flirted with an interpretation of that kind. In their view, a person who publishes books whose content is controversial puts himself or herself in danger. This leads them to ponder the question of whether a person who deliberately does this thereby forfeits the right to be protected by “free speech” legislation.

One only has to consider what the consequences of such an interpretation would be to realize its absurdity. It would mean that nothing could be said or published if there were people prepared to use violence against the writer. Martin Luther (1483–1546) could not have published his ideas because by doing so he ran the risk of becoming the victim of violence (in his case at the hands of the Vatican). Giordano Bruno (1548–1600) and Galileo Galilei (1564–1642) could also not have published their ideas for the same reason. In this interpretation the clear and present danger test would be transformed into an encouragement to threaten violence or actually commit violence. We therefore have to distinguish carefully between the above-mentioned interpretation and the classic Millian or Holmesian formulation.

For a long time Mill’s criterion was dominant and it left a broad margin of freedom for the expression of ideas, including unpopular ones. Article 10 of the European Convention on Human Rights and Fundamental Freedoms formulates what is the core of free speech. “Everyone has the right to freedom of expression.” In an important interpretation of this article the European Court in Strasbourg indicated in 1976 (in the Handyside case) that this “freedom of expression” should be construed as follows. It “is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”[59]

These are important words. Freedom of speech, according to the European Court, also protects speech and writing that “offends, shocks or disturbs.” And the parties that could be offended, shocked or disturbed are not only the state, but also “any sector of the population.”

This is a radical judgment. I do not think it very likely that we would find such a radical affirmation of the principle of free speech being delivered at the beginning of the twenty-first century. Most politicians, confronted with violence perpetrated by fanatics, react in the following way: “Why should you allow people to ‘hurt the feelings’ of other people? Why be so divisive?”

These complaints are common enough. There are few defenders of “the classical conception of free speech,” associated with great minds like John Stuart Mill,[60] W.K. Clifford,[61] T.H. Huxley,[62] Leslie Stephen[63] and other Victorian freethinkers. That conception has been abandoned, giving way, so it seems, to what we might call a “multicultural conception of free speech.” That multicultural conception pays lip service to the principle of free speech (“don’t misunderstand me, free speech is an important ideal, but …”), but at the same time draws a line around it at the point where some religious minority decides to complain that certain expressions are offensive to its religious feelings.

In the “clear and present danger test” of free speech (or freedom of speech only restricted by the risk of physical harm), we encounter echoes from a time that is apparently now behind us. For fear of a “Clash of Civilizations,” the Western world increasingly backs down on what were once considered to be its greatest cultural achievements: human rights as codified in the Universal Declaration of Human Rights and other documents, the right to free expression in particular.

The question is whether this “new approach” to human rights, and freedom of speech in particular, is an improvement by comparison with the older, more robust conception of free speech or a deterioration. A.C. Grayling (1949– ) has some doubts. On the question “Does religion deserve respect?” Grayling writes: “I argue that it deserves no more respect than any other viewpoint, and not as much as most.”[64] Rushdie formulated a similar point of view:

At Cambridge I was taught a laudable method of argument: you never personalize, but you have absolutely no respect for people’s opinions. You are never rude to the person, but you can be savagely rude about what the person thinks. That seems to be a crucial distinction: people must be protected from discrimination by virtue of their race, but you cannot ring-fence their ideas. The moment you say that any idea system is sacred, whether it’s a belief system or a secular ideology, the moment you declare a set of ideas to be immune from criticism, satire, derision, or contempt, freedom of thought becomes impossible.[65]

In order to judge whether this is a correct approach we have to delve into the justification for free speech.

Excerpted from The Secular Outlook by Paul Cliteur. Copyright © Paul Cliteur, 2010. All rights reserved.

[51] Rushdie, Salman, “Do We Have to Fight the Battle for the Enlightenment all Over Again?” The Independent, 22 January, 2005.

[52] Ibid.

[53] See also: Ruthven, Malise, A Satanic Affair: Salman Rushdie and the Rage of Islam, Chatto & Windus, London 1990, p. 25: “At least twenty-one people were to die in the anti-Rushdie agitation, nineteen of them in the Indian subcontinent, two in Belgium.”

[54] Mill, On Liberty, p. 15.

[55] Ibid. p. 69.

[56] See on this: Friedman, Lawrence M., American Law in the 20th Century, Yale University Press, New Haven 2002, p. 142; Rabban, David M., “Clear and Present Danger Test,” in: Kermit L. Hall, ed., The Oxford Companion to The Supreme Court of The United States, Oxford University Press, New York 1992, p. 158.

[57] Holmes had also, by reading Harold Laski’s Authority in the Modern State (1919) and Locke’s Two Treatises on Government (1689), two classic apologies for freedom of speech, changed his ideas somewhat with regard to free speech. See on this: Lewis, Anthony, Make No Law: The Sullivan Case and the First Amendment, Vintage Books, Random House, Inc., New York 1992, p. 81.

[58] Quoted in Friedman, American Law, p. 143.

[59] Janis and Bradley, European Human Rights Law, p. 165.

[60] Mill, On Liberty.

[61] Clifford, “The Ethics of Belief.”

[62] Huxley, “Agnosticism and Christianity.”

[63] Stephen, Essays on Freethinking and Plainspeaking.

[64] Grayling, Against all Gods, p. 7.

[65] Rushdie, “Do We Have to Fight the Battle for the Enlightenment all Over Again?”

Paul Cliteur is professor of Jurisprudence at Leiden University, the Netherlands. He was also professor of Philosophy at the Delft University, the Netherlands (1995-2002), and visiting professor of Philosophical Anthropology, Ghent University, Belgium (2014). Prof. Cliteur’s research is in the field of ethics, the philosophical foundations of the law, more in particular moral dilemmas around multicultural society, fundamental rights and the relationship between law and worldviews. He is the author of The Secular Outlook (Wiley-Blackwell, Chichester, 2010).

The Secular Outlook: In Defense of Moral and Political Secularism
By Paul Cliteur
Wiley-Blackwell; 1 edition (13 August 2010)
ISBN-10: 1444335219
ISBN-13: 978-1444335217

Paul Cliteur: Towards a Secular Europe

A.C. Grayling – Closing the Modern Mind

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