Criminalizing speech is unworthy of an open society

This is an excerpt from The Tyranny of Silence by Flemming Rose (Cato Institute, 2014). Reprinted by permission from the author.

In the United States, it is held that a multireligious, multicultural society has need of a greater diversity of speech than a homogenous society. That belief entails religious groups enjoying the freedom to proselytize and to attack others, while being prepared to tolerate the same kind of treatment when it goes the other way. In 1940, the U.S. Supreme Court ruled in defense of the right of a member of Jehovah’s Witnesses to proselytize on the streets of a Catholic neighborhood using a portable phonograph and to openly declare in that context that the Catholic Church was the instrument of Satan.[1] Conversely, in Europe, the feeling was to hold back and show respect, justifying constraints on free speech in the name of peaceful coexistence.

In a celebrated essay in 1988 on the history of censorship, Michael Scammell, founder of the journal Index on Censorship, a significant forum of international debate on free speech since the 1970s, pointed out that the establishment of a distinction between words and actions had been epochal in the Western European history of the right of free expression. Until the 17th century, actions and words were treated identically throughout Europe. Verbal expression of deviant or unorthodox notions in religious matters was taken to be a physical attack on the Church, its members, and God. Speaking out in favor of political change or against the existing order was perceived as incitement to rebellion and treason. Exactly the same was true of totalitarian societies of the 20th century.[2]

Criminalization of speech is the closest a society can get to controlling the thoughts of its people.[3] Thoughts cannot be made the object of government surveillance, but speech is positioned somewhere between thought and action; whereas authorities cannot interfere in the former, all, regardless of political inclination, believe the latter in some cases may or ought to be regulated. It is not forbidden to think that black people belong to an inferior race. If, on the basis of that notion, blacks are separated from the rest of society, that is unlawful discrimination. But if one merely states that black people do not deserve the same rights as other citizens, without actually discriminating in practice, the legal consequences are far from clear-cut. Some people feel that speech has more in common with thought than with action. Others feel speech begets action. Or more radically, that utterances are actions, and that racist speech should be prohibited because it is in itself discriminatory, or is likely sooner or later to lead to discrimination.

Many believe that freedom of speech is essentially rooted in the right to speak out against the powers that be. It therefore ought not to be used to attack the weak in society. Jyllands-Posten thus misused its right to free speech to step on a group generally held in low esteem and often kicked around by the media. As such, the whole affair was a perversion of free speech.

That argument is built on a series of false premises. If freedom of speech is a universal right, it includes the right to voice sentiments or opinions that may be considered objectionable, obscene, or derogatory. One of the most important tasks of the media is indeed to monitor those in power. It isn’t, however, the only responsibility of a free and open press.

British philosopher John Stuart Mill, author of the classic work On Liberty, pointed out in the 19th century that the task of the press was not merely to safeguard citizens against the authorities.[4] The tyranny of predominant opinion presented an equally large threat to the liberties of the individual. Mill possessed a keen eye for prejudice in society, for taboos and repression, and he warned forcefully against the despotism of custom, its often aggressive intolerance of opinion, and oppressive moralism with respect to deviant viewpoints and behavior. Mill believed it was the task of the press to put accepted truths to debate and to challenge the dogmas that form the framework of a society’s self-image, whether they involve attitudes on immigration, taxation, the monarchy, the relation between church and state, the wars in Afghanistan and Iraq, or self-censorship.

Mill’s most controversial idea concerned what is referred to as the “harm principle”: government is entitled to restrict the freedom of its citizens only if an action is harmful to others. Mill did not consider the offending of religious sentiments to be an action that fulfilled the harm principle; he called for state intervention only if there was a risk of imminent violence.

During the debate concerning the Muhammad cartoons, some resorted to a broad interpretation of the harm principle. It ran like this: your freedom stops where practicing free speech hurts my religious sentiments. Others added that offending religious conviction was a breach of the victim’s right of free exercise of religion. That was an argument I heard put forward by leading Syrian filmmaker Najdat Anzour when he visited Denmark in 2010. In 2007, Anzour had made a 30-episode television series, Roof of the World, based on the Cartoon Crisis. In it, I was portrayed as a Ukrainian Jew with close ties to neoconservative circles in the United States, as well as to the Israeli intelligence service Mossad. Anzour apparently saw me as a Dr. Evil-type, heading up a conspiracy whose purpose was to create confrontation between the West and the Islamic world into whose clutches the hapless Danes had fallen. When I suggested to him that the whole thing was lies from beginning to end, he defended himself by saying that his assistants had researched the matter fully on the Internet. Their error appeared to issue from the first biographical article about me on Wikipedia, in which it could be read that I was Jewish and hailed from Ukraine. That erroneous information was swiftly exploited by various obsessives. Some Muslims were so caught up in their hatred of Israel that it amounted to a form of paranoia. One could almost see the light bulb appearing above their heads: aha, so he’s a Jew, now we get it!

Initially, I’d decided not to engage in debate with Najdat Anzour when he was scheduled to appear at the Danish Film School in Copenhagen to discuss his work with students. But when he reiterated his twisted version of the harm principle with respect to the boundaries of free speech, I found myself unable to hold back. I pointed out that publication of the Muhammad cartoons did not in any way prevent Muslims from taking part in prayer five times a day, from attending mosque, fasting during Ramadan, abstaining from the consumption of alcohol and pork, or practicing their faith. To claim that the cartoons were a violation of the right of Muslims to free religious exercise was, to put it mildly, nonsense.

But many others believed that Jyllands-Posten should have been taken to court on charges of blasphemy or racism. Former Danish foreign minister Uffe Elleman-Jensen quoted Article 4 of the 1789 Declaration of the Rights of Man. Freedom, he said, consists only in the right to do anything that does not harm others; since many Muslims believed their religious sentiments were damaged by the cartoons, Jyllands-Posten was in breach of a founding principle of democracy.[5]

Sadly, our former minister had omitted to read on. The text of Article 4 in its entirety reads:

Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.[6]

The cartoons never stopped anyone from practicing their religion nor prevented them from speaking freely. But Elleman-Jensen was by no means the only one to twist essential concepts so as to justify crackdowns on offensive speech.

In 2009, British Foreign Secretary David Miliband defended the British government’s decision to ban Dutch parliamentarian Geert Wilders from entering the United Kingdom where he was to show his anti-Islamic film Fitna to colleagues in the British Parliament. Miliband’s grounds for defending the decision and putting Wilders on the next plane back to Amsterdam were as follows: “We have profound commitment to freedom of speech, but there is no freedom to cry ‘fire’ in a crowded theatre and there is no freedom to stir up hate, religious and racial hatred, according to the laws of the land.”[7]

Miliband’s analogy of crying “fire” in a crowded theater was taken from a ruling of the U.S. Supreme Court in 1919, which has since entered into the language as an aphorism, often being used as a yardstick for determining whether speech should be afforded the protection of law. I had been confronted with the analogy on several occasions by American and British journalists who suggested that publishing the Muhammad cartoons might be considered akin to crying “fire” in a crowded theater.

But if we look at the original quote, by Oliver Wendell Holmes Jr., one of the Supreme Court’s most legendary judges, it reads, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”[8]

Miliband overlooked the fact that cries of “fire” have to be made falsely in order to fall outside the protection of the law. If someone’s house is on fire, or even merely smoldering, the good citizen has a duty to cry fire, inform those inside, or to call the fire department.

Holmes coined the phrase when the Supreme Court upheld a ruling against one Charles Schenck, a Socialist who had passed out flyers on the street referring to the government draft for World War I as slavery that should be combated using legal means. The authorities did not look lightly upon criticism of U.S. involvement in the war, and Congress had passed a bill outlawing disloyalty and opposition to the draft.

It would be unthinkable today that governments could take people to court for protesting against the participation of Western nations in the wars in Iraq and Afghanistan. Moreover, as Harvard professor Alan Dershowitz has pointed out, the analogy seems ill placed even in the situation in which it was put forward by Holmes.[9] Schenck’s flyers contained a political message urging the reader to think for himself and to decide on the basis of sound common sense. Shouting “fire” in a crowded theater is not a call to reason; it is an urgent and unambiguous appeal for swift action, rather than thoughtful reflection. A more suitable analogy to the Schenck case would have involved a man standing outside a theater passing out flyers suggesting that the theater was unsafe, and therefore urging the public to stay away.

To return to Miliband’s endeavors to justify his ban on Geert Wilders’s entering the United Kingdom, Wilders had not threatened anyone. Nor had he said or done anything that could have been construed as incitement to violence. He had uttered some opinions on Islam and Muslims in Europe that were found by some to be morally reprehensible; his film included a number of elements that seemed to be unreasonable generalizations; but so do the documentaries by filmmaker Michael Moore. So what was the problem? A British imam had threatened riots in the streets if Wilders was allowed to screen his film in the United Kingdom. The British government’s grounds for banning Wilders’s entry at Heathrow had nothing to do with anything he had said or done; they were motivated solely by what others were intending to do to him.

That decision was unworthy of an open society. Incidentally, a year later, Wilders was finally allowed into the United Kingdom, where he presented his film and held a press conference. A few people protested, but no riots occurred.

In the spring of 2009, I was in Israel to discuss freedom of speech. When I said that I believed that the EU ban on Holocaust denial should be lifted, there were protests from people whose families had perished in the Holocaust. I explained that banning all speech that is demonstrably false and offensive would result in a lot of things that couldn’t be said, and a lot of people who would have to be prosecuted. Quite aside from how morally reprehensible, wounding, and offensive such utterances were, the only thing in my opinion that could justify a ban was if it were clear that Holocaust denial led to an immediate risk of racist attacks and genocide. As far as I could judge, no such risk existed in modern-day Europe.

The risk we ran, I said, was that an increasing number of groups in society would exploit the ban on Holocaust denial to call for protection of their own taboos. In a society of increasing diversity and an attendant grievance culture, acknowledging such calls, and criminalizing speech that some ethnic and religious groups might feel undermines their dignity and identity, would put us on the road to a tyranny of silence.

Criminalization of Holocaust denial itself constitutes a problem in the context of the growing European Muslim population. Schools have been pressured by Muslim parents and pupils to stop teaching about the Holocaust.[10] Teachers have been abused for relating historical events in Europe during World War II. In some Muslim circles, it is held that the Holocaust is a myth constructed by the Jews in order to secure a homeland in Palestine. In such a context, what is needed is a free and open debate to shed light on Muslim standpoints on the Holocaust, to challenge, to enlighten, to discuss, and to force proponents of such views to account for them and to defend them objectively and with documentation.

Many Muslims see criminalization of Holocaust denial as an expression of European double standards. Publishing satirical cartoons of the Muslim prophet is OK, whereas questioning a Jewish myth is not. Clearly, the perception that society finds no place for Muslim opinion seriously undermines the confidence of Muslims in the democracy. Moreover, it expresses a profound lack of confidence in the values of the free and open society.

From time to time, I receive messages of support for my position from Muslims. One Danish Muslim wrote that my struggle was identical to his own for civil rights in the Muslim community, and for that reason it was important that I not back down. Another was sent to me in May 2009, when I was attending a UNESCO conference in Doha; some Arab newspapers had condemned me as the “Danish Satan.” The email’s author was a Jordanian woman living in another Arab country.

She wrote:

I have seen and heard a lot of things about the Cartoon Crisis, but only through my work today did I discover the details of what occurred and I feel the need to thank you. I am sure that thanks have been few from my part of the world, but I would like to be among those to express gratitude, for I find your viewpoint highly respectful and forthright. I wish our own media would present the events in all their detail in order that people might get the full picture before condemning.

Such expressions of support helped convince me that my taking part in debates and discussions around the globe had not at all been in vain.

[1] Lewis, Freedom for the Thought That We Hate, pp. 11–112.

[2] Michael Scammell, “Censorship and Its History: A Personal View,” in Information, Freedom and Censorship, Kevin Boyle, ed. (London: Times Books, 1988), pp. 1–19.

[3] Carmi, “The Enemy from Within.”

[4] John Stuart Mill, On Liberty and Other Writings, Stefan Collini, ed. (Cambridge: Cambridge University Press, 1989); Richard Reeves, John Stuart Mill: Victorian Firebrand (London: Atlantic Books, 2007).

[5] Uffe Ellemann-Jensen, Vejen,jeg valgte (Copenhagen: Gyldendal, 2007).

[6] Declaration of the Rights of Man and Citizen, http://www1.curriculum.edu.au/ddunits/downloads/pdf/dec_of_rights.pdf.

[7] Douglas Murray, “Fire in a Crowded Theatre,” Standpoint (London), March 2009; Tim Black, “Britain Is Not a ‘Crowded Theatre,’” Spiked (London), February 16, 2009.

[8] The context of Oliver Wendell Holmes’s wording, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic,” is illuminated by Anthony Lewis, Freedom for the Thought That We Hate.

[9] Alan Dershowitz, “Shouting ‘Fire!’” Atlantic Monthly, January 1989, p. 72.

[10] Jeevan Vasagar, “Schools Drop Holocaust Lessons,” The Guardian (London), April 2, 2007.

Flemming Rose is a Danish journalist and author, and served as foreign affairs editor and culture editor at Jyllands-Posten. He is an international advocate for freedom of speech and regularly travels around the world to speak on the subject. In 2015 Rose was awarded the prestigious Publicist Prize from Denmark’s national press club and received the Honor Award for defending free speech from the Norwegian Fritt Ord Foundation. His website is www.tyrannyofsilence.net.

The Tyranny of Silence
By Flemming Rose
Cato Institute; 1 edition (May 7, 2016)
ISBN-10: 1939709997
ISBN-13: 978-1939709998
$13.35