Freedom Of Speech, Blasphemy, And International Relations

Sacrificing our principles in the face of mob violence is never a good idea.

Inevitably, the protests that swept the Muslim world over an obscure YouTube video that purported to be a “trailer” for a “film” called Innocence Of The Muslims has set off a number of debates regarding the acceptable limits of freedom of expression. Additionally, the question of how the United States should respond when people in other countries react negatively when something that offends people in a culture that has no respect from free expression is produced by an American citizen, especially in today’s world where a YouTube video can go viral in a matter of hours. As I’ve noted in the posts I’ve written on this subject — here, here, here, and here — I think it’s highly inappropriate for the United States Government to be endorsing the idea that someone’s outrage over the free speech of another person is somehow justified.  The most important reason for that is because there’s absolutely no evidence that such admissions actually do any good and, as Eugene Volokh pointed out, plenty of reason to think that it actually causes real harm.

The President’s position, while unfortunate, at least retains the good sense of not abandoning the entire idea of free speech in the name of  not offending people who decide it’s acceptable to riot over a YouTube video they’ve never seen. Some commentators, however, have  jumped past that point, and one of them, University of Chicago Law Professor Eric Posner, has essentially advocated that we reconsider our own commitment to the values enshrined in the First Amendment in order to avoid offending people half a world away:

The universal response in the United States to the uproar over the anti-Muslim video is that the Muslim world will just have to get used to freedom of expression. President Obama said so himself in a speech at the United Nations today, which included both a strong defense of the First Amendment and (“in the alternative,” as lawyers say) and a plea that the United States is helpless anyway when it comes to controlling information. In a world linked by YouTube, Twitter, and Facebook, countless videos attacking people’s religions, produced by provocateurs, rabble-rousers, and lunatics, will spread to every corner of the world, as fast as the Internet can blast them, and beyond the power of governments to stop them. Muslims need to grow a thick skin, the thinking goes, as believers in the West have done over the centuries. Perhaps they will even learn what it means to live in a free society, and adopt something like the First Amendment in their own countries.

But there is another possible response. This is that Americans need to learn that the rest of the world—and not just Muslims—see no sense in the First Amendment. Even other Western nations take a more circumspect position on freedom of expression than we do, realizing that often free speech must yield to other values and the need for order. Our own history suggests that they might have a point.

Posner goes on to point out, correctly, that American history with regard to the First Amendment was very different up until roughly the time of the Warren Court when the great First Amendment cases were decided. Before that time, restrictions on even explicitly political speech was rather common. One of the most egregious examples came early in the Republic when, in response to the controversy brewing because of his responses to the French Revolution and the brewing war in Europe, John Adams pushed through Congress the Alien and Sedition Acts, which, among other things,  made it illegal to publish “false, scandalous, and malicious writing” against the government and government officials. The laws inspired the Virginia and Kentucky Resolutions, which many consider the beginning of the movement that put an end to the Federalist Party and put Thomas Jefferson in the White House. Many critics of Adams were imprisoned under the law merely for criticizing the President but, because the law was promptly repealed when Thomas Jefferson took office, the laws Constitutionality was never seriously tested. During the Civil War, opponents of the war were regularly rounded up by Federal authorities as were critics of the drafts. World War One brought the passage of the Espionage Act and the prosecution of Eugene v. Debs and others for speaking out against the draft. The Supreme Court upheld these prosecutions in a case that resulted in Oliver Wendell Holmes Jr.’s famous, and incorrect, statement about shouting fire in a crowded theater. As recently as the 1940s, the Supreme Court had decided that it was perfectly acceptable for schools to force children to pledge allegiance to the flag even if it violated their religious beliefs. It wasn’t until the Warren Court era that the true meaning of “Congress shall make no law….” came to be something that lawyers and judges actually cared about.

So, yes, Posner is correct that our current understanding of the First Amendment and the scope of Freedom of Expression is heavily influenced by the legal developments that occurred starting about 60 years ago, but that doesn’t really prove anything. Is he saying that he wants to return to the days of the Alien and Sedition Acts, that the people who protested the draft in the 1960s should have been put in jail, or that children should be forced to worship a peace of cloth whether they want to or not? Or is it just that he thinks that we need to restrict the freedom of American citizens because it offends people who, quite honestly, have values more appropriate to the 11th Century than the 21st?

Posner goes on to lament the fact that we have a First Amendment at all in situations like this:

What is peculiar it that while reasonable people can disagree about whether a government should be able to curtail speech in order to safeguard its relations with foreign countries, the Google compromise is not one that the U.S. government could have directed. That’s because the First Amendment protects verbal attacks on groups as well as speech that causes violence (except direct incitement: the old cry of “Fire!” in a crowded theater). And so combining the liberal view that government should not interfere with political discourse, and the conservative view that government should not interfere with commerce, we end up with the bizarre principle that U.S. foreign policy interests cannot justify any restrictions on speech whatsoever. Instead, only the profit-maximizing interests of a private American corporation can. Try explaining that to the protesters in Cairo or Islamabad.

Actually, no, Professor, reasonable people cannot disagree about the government’s power to curtail speech because we already have a Constitutional provision that answers that question with a clear and emphatic no. Far be it from me to question the judgment of a Professor at a top level Law School, but what part of “Congress shall make no law…..” does he not understand?

I can accept, even if I cannot possibly understand, the fact that Muslims are apparently so deeply offended by any depiction of the person they consider a prophet (long dead now for over 1,000 years) that they are willing to riot violently and, as happened just a week ago in Pakistan, kill people over it. What I cannot understand is why we have to give that irrational, emotional, response legitimacy. Blasphemy has not been a crime in this country for centuries, and there is no good reason that it should be. Indeed, as Hussein Ibish notes, blasphemy is an indispensable human right:

Blasphemy is an indispensable human right. Without the right to engage in blasphemy, there can be no freedom of inquiry, expression, conscience or religion.

(…)

Who, after all, will be authorized to define “blasphemy”? Does anything that offends any religious sensibilities qualify as “blasphemy”? Will a critical mass of objections be seen as legitimate grounds for silencing critics of religious doctrine, scholarly inquiry into their origins, skeptical analysis of superstition and faith, iconoclasm, or mockery of religious claims, symbols, assertions, and shibboleths?

(…)

If freedom of religion, conscience and speech are to mean anything, religious doctrines, symbols and assertions must be open to inquiry, criticism and, indeed, ridicule. Otherwise, the human thought process will be shut down by force of law in order to protect the sensibilities of the superstitious, and free inquiry into the most central issues facing humanity since the birth of the species will be effectively foreclosed.

These calls reflect a paranoid worldview that is widespread among Muslims that their religion is under some kind of global assault. If so—because Islam is spreading faster than almost any other religion, with the possible exception of Mormonism—it’s an odd kind of siege. In reality, Islam is thriving in its countries of origin and spreading quickly into the West.

What this idea really bespeaks is a terror that most faiths contain at their core: that serious, skeptical, dispassionate evaluations of their specific claims will reveal them to be indefensible, hollow and easily debunked. Embracing modernity requires tolerating such fears without demanding the enforcement of religious orthodoxy, even of an ecumenical variety, through the power of the state.

Indeed, there is plenty of history in the Western world of the horrors inflicted upon people deemed to have committed blasphemy against Christianity. Thanks in no small part to the Protestant Reformation, the Enlightenment,  the settlement of the New World, and the American idea of the separation of church and state, we were able to move past that era. What is the logic in a position like Posner’s that essentially argues for a view of the First Amendment that would make “insulting” a religion, however one might define that, something that the state could suppress in the name of national security? Sacrificing our principles in the name of safety doesn’t really strikes me as something that’s going to accomplish anything worthwhile.

Notwithstanding its historically recent development, Freedom of Speech is one of our country’s most important principles. It is, indeed, the thing that makes our political system possible to begin with, and it is has led to a tremendous amount of expression in the area of politics, arts, letters, and entertainment that have added immeasurably to the legacy of our nation and the knowledge of humanity. The idea that anyone, least of all a law professor, would be willing to toss all of that aside in the face of mob violence is really just sad.

Timothy Sandefur notes this quote from one of America’s founders, George Mason:

“No free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.”

Sacrificing our fundamental principles for the illusion of safety and the false promise of friendship would be a tragedy.

FILED UNDER: Islam, Law and the Courts, National Security, Religion, Terrorism, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. nitpicker says:

    No one’s shutting him up, period. Get off this embarrassing hobby horse, Doug.

  2. Pay attention. I am responding to a very specific argument made by a law professor who also happens to be the son of a very prominent Federal Judge.

    And I happen to take Freedom of Speech very, very seriously.

  3. Anderson says:

    Posner thinks that emergencies, as defined by the executive, give the executive power to do whatever it deems necessary.

    Dunno whether he cribbed that directly from Nazi Germany’s most prominent jurist, Carl Schmitt, but the resemblance is striking.

  4. HankP says:

    Well, at least you got the target right this time. Yes, Posner is wrong. But I wouldn’t worry about it, nobody is going to make any progress in enacting these kinds of restrictions.

  5. george says:

    I wonder if Posner is just trolling – its hard to believe he (or anyone) is seriously arguing that the limits to speech should be set by a group of upset people outside the country. For instance, if people in England suddenly start rioting because they think using the word “football” to describe North American football as opposed to the game it refers to in most of the rest of the world, by his argument the NFL should be forced to change its name.

    But in any case, Obama has said that he has no interest in such censorship. Agreeing that a video is in bad taste or inappropriate is a long way from censorship. Obama might, for instance, say the same thing about Celine Dion’s or Justin Bieber’s songs (and he’d be right in all cases). But so long as he’s not censoring them, its just another opinion.

    And of course, Posner has a perfect right to state his opinion (trolling or otherwise). Just as others have a perfect right to state their opinions on Posner’s opinions, etc.

  6. Hoyticus says:

    I’m with Doug on this one. People should be allowed to say anything they want regardless of consequences. If someone runs up and calls me a Yankee imperialist cracker I should have to behave like a big boy and just take it. Basically, America is born of the Enlightenment where the clash of ideas and logic should reign supreme, at least when it comes to public debate.

  7. nitpicker says:

    I’m trying to find your complaints about Bush signing an unconstitutional law to shut down the Westboro Baptist Church and, wouldn’t you know it, can’t find them. I guess you don’t mind actual censorship.

  8. Facebones says:

    So when do we change the name of this blog to “Doug vs. the Straw Men?”

  9. mantis says:

    Actually, no, Professor, reasonable people cannot disagree about the government’s power to curtail speech because we already have a Constitutional provision that answers that question with a clear and emphatic no.

    Sigh. He didn’t claim the government has that power, he said people could disagree about whether it should.

    What is peculiar it that while reasonable people can disagree about whether a government should be able to curtail speech in order to safeguard its relations with foreign countries, the Google compromise is not one that the U.S. government could have directed.

    Noting that reasonable people can disagree about whether the government should be able to do something is not claiming that the Constitution does not exist, you drama queen. You acknowledge that there have been many occasions when speech has in fact been curtailed in US history, and that our current understanding of the 1st Amendment is a recent one, but you just had to find some way to get yourself in high dudgeon, so you just built yourself a very small, very weak man of straw. Look, he fell right over…

  10. Mike says:

    @nitpicker:

    Hahaha…seriously? You clearly don’t know Doug if you think he supported pretty much anything the Bush Administration did, much less that specific example involving the Westboro morons.

    The drive by comments asserting Doug is in favor of everything the GOP has done for the past 25 years are quite amusing, if nothing else.

  11. Anderson says:

    I think Doug’s bizarre anti-Obama post is coloring readings of this post. My own first reaction when I saw the headline was “Doug, stop hitting yourself.”

    But Posner is a dyed-in-the-wool supporter of an unchecked executive, and deserves the scorn Doug pours on him.

  12. Argon says:

    Throw enough spaghetti on the wall and eventually something will stick… once it does one can declare victory and move on.

    So Doug, you’re absolutely right about something you said that is marginally related to the unrest in the Middle East. Vindication is yours and the first amendment is safe once again for pedantic, freedom loving Americans who have the luxury of distantly watching people kill others at a distance. Now I going to go out and celebrate this first amendment triumph by wrapping a dog poo in the US flag, setting it on fire and leaving it on some Tea Partyer’s doorstep.

  13. Tsar Nicholas says:

    Well, there’s a larger elephant in the room. It’s about more than freedom of speech.

    There are two approaches to international relations. There’s the Chamberlain approach and its progeny. Then there’s the Churchill/FDR/Truman approach and its progeny. The former directly resulted in, oh, roughly, 50 million people being slaughtered. The latter ended the worst conflagration in human history and set the framework for seven decades in which the world has not experienced another worldwide conflagration. None of that is coincidence.

    When you appease aggression you beget further and more fierce aggressions. It’s fundamental. It’s axiomatic. It’s incontrovertible. Except of course to a leftist.

  14. An Interested Party says:

    When you appease aggression you beget further and more fierce aggressions. It’s fundamental. It’s axiomatic. It’s incontrovertible. Except of course to a leftist.

    Talk like this led to the Iraq Disaster…you’ll forgive most people if they don’t want to repeat that mistake…if your inner warrior is so itchy for action, might I suggest you go to your local toy store and buy some plastic soldiers and play wargames to your heart’s content…

  15. Jc says:

    Who cares about the opinion of a law professor son of a federal judge? So he made a weak and lame argument Zzzzzzzzzzzzzzzz……

    Islam needs a Martin Luther.

  16. Jc says:

    @Tsar Nicholas:

    Well, there’s a larger elephant in the room.

    And it is wearing a tin foil hat.

  17. Mike says:

    @Tsar Nicholas:

    If I ruled the world I would create a Godwin-esque rule for appeasement, because it is the worst foreign policy analogy I can think of, and is particularly indicative of a lazy thinker who is only seeing what he wants to see. It’s made all the more amusing by the fact that there is a pretty good argument to be made that Chamberlain wasn’t rolling over and expecting Hitler to play nice but was rather attempting to delay the start of a war until Britain and France were ready to fight, because in 1938 neither the the British or French militaries were in any condition to fight a war and would’ve been beaten soundly had war started over Czechoslovakia (even worse than what transpired c. 1939-1940).

  18. legion says:

    Here in Idaho, there are rumors of groups trying to organize a big neo-nazi music fest nearby this fall. It’s despicable, but within their rights – if they can find someone willing to rent them the land. As I put it to someone else in that discussion, the down-side of freedom is that we can’t outlaw BS like this. The up-side of freedom is that loudmouthed, bigoted jackholes are out in public and become known for their worthlessness.

  19. Anderson says:

    Mike: Germany wasn’t all that ready in 1938 either, plus the Czechs wouldve thrown some divisions into the balance.

    The real problem was zero will to fight by the allies. Hence the misreliance on Munich by people who pretend All You Need Is Will – the Green Lantern theory.

  20. michael reynolds says:

    Doug:

    As much as I disagreed with your analysis of Mr. Obama’s speech at the UN, I agree with you on this.

    Don’t ever tell me I can’t say or write whatever the hell I want to say or write. Congress shall make no law. And Congress should not make any law. If you don’t like me saying that I think your god, your prophet, your sacred text, your Oprah, your magic beans, your Honey Boo Boo, your miraculous preserved monkey tail, your special divine god-hat or whatever is a load of bullsh!t, too bad.

    We have a right to call bullsh!t. We have a right to criticize. We have a right to say things the majority doesn’t like. In fact, we have a right to be stupid loudmouthed idiots. (How else would we get the comic stylings of some of our commenters here?)

    Spread a little United Nations soft soap around to quite the crazies occasionally? That’s one thing. Limit free speech? No.

  21. An Interested Party says:

    Islam needs a Martin Luther.

    So does the GOP…

  22. Phillip says:

    we were able to move past that era

    Not far enough for us pagans.

  23. Jenos Idanian #13 says:

    @An Interested Party: Talk like this led to the Iraq Disaster…you’ll forgive most people if they don’t want to repeat that mistake…

    I realize that Iraq is the be-all and end-all of your entire thought process, and how everything bad is related to that, but get back to me when the body count hits the high side of eight figures — ‘cuz that’s the gold standard. Even the wildest estimates for Iraq barely break six digits, so we’re talking a couple of orders of magnitude of difference.

    Unless you count the victims of Communism, who often died without benefit of an actual war — that one’s into nine digits.

  24. mantis says:

    @michael reynolds:

    Limit free speech? No.

    Who is advocating this?

  25. Moosebreath says:

    “reasonable people cannot disagree about the government’s power to curtail speech because we already have a Constitutional provision that answers that question with a clear and emphatic no”

    So, just by the examples in this article, John Adams, Abraham Lincoln and Oliver Wendell Holmes, Jr., were not reasonable people. Fascinating.

  26. mantis says:

    @Jay Tea’s puppet Jenos Idanian #13:

    Shorter Jay Tea: Whether the Iraq war was an unnecessary disaster or not and the reasons it happened do not matter because communism.

  27. mantis says:

    @Moosebreath:

    So, just by the examples in this article, John Adams, Abraham Lincoln and Oliver Wendell Holmes, Jr., were not reasonable people. Fascinating.

    Exactly.

  28. An Interested Party says:

    I realize that Iraq is the be-all and end-all of your entire thought process…

    Umm, not really, but this appeasment bullshit was used to peddle that disaster, so there’s no need for history to repeat itself…

    …but get back to me when the body count hits the high side of eight figures…

    Ohhhhh, so human life is only worth something in massive quantities…gotcha…

  29. bk says:

    @Jenos Idanian #13: So, Mr. Warrior, you served in the Iraq war then, right? Or are you just a member of the 101st Flying Keyboard Kommandoes? I am guessing the latter.

  30. Jenos Idanian #13 says:

    @bk: Oh, wow, the classic “chickenhawk” argument. I am totally and utterly verklempt at your dazzling move to change the subject from the merits of the arguments to… well, little ol’ me.

    Since you’re so eager to change the subject, is it safe to assume that you have nothing of actual substance to contribute?

  31. Jenos Idanian #13 says:

    @An Interested Party: So, why don’t you explain why the Iraq example trumps all prior history. I’d be fascinated to see that thought process unfold.

    Also, please use positive constructions — “we should have” instead of “we shouldn’t have.” After all, as Alinsky said, “The price of a successful attack is a constructive alternative.”

  32. bk says:

    @Jenos Idanian #13:

    your dazzling move to change the subject from the merits of the arguments to…

    Remind me again what your “argument” was. That a war isn’t a “REAL WAR” unless the body count reaches a certain level? Let me guess – is your favorite author Tom Clancy?

  33. An Interested Party says:

    @Jenos Idanian #13: I’m so pleased to know that you are such an expert on Saul Alinsky, although talking about him puts you in the same category that you put bk in…you know, adding nothing of factual substance to the conversation…the bottom line is that the argument of Tsar Nicholas about Munich is evenr more tired, clichéd, and irrelevant than the chickenhawk argument…it was used to get us into Iraq…it shouldn’t be used to get us into any other disasters…

  34. michael reynolds says:

    @mantis:

    I took this:

    But there is another possible response. This is that Americans need to learn that the rest of the world—and not just Muslims—see no sense in the First Amendment. Even other Western nations take a more circumspect position on freedom of expression than we do, realizing that often free speech must yield to other values and the need for order. Our own history suggests that they might have a point.

    to be edging toward the idea of limiting free speech.

  35. wr says:

    @Jenos Idanian #13: “I realize that Iraq is the be-all and end-all of your entire thought process, and how everything bad is related to that, but get back to me when the body count hits the high side of eight figures — ‘cuz that’s the gold standard”

    As long as none of those bodies is yours, right Hoot? I mean, who cares if tens of thousands of Americans — and uncountable numbers of icky brown people — are killed, and ten times that many have their minds and bodies shattered for nothing. It cost Jay/Jenos/Hoot not a single moment of worry, let alone the chance of danger.

    You keep rooting for other people to die, you sad little loser. And think that you come off so sophisticated and knowing with your talk about “gold standard” for the number of people’s lives you find sufficient to make you give a damn.

    If your parents knew what a loatheseome toad you’d grow up to be, it’s hard to imagine they wouldn’t have smothered you in your crib.

  36. Midwestern Dad says:

    Freedom of speech guarantees that offensive speech is protected. The first Amendment does not protect only discussion of the weather. While a person has the right to make offensive remarks, others have the right to say the remarks are offensive. The prior posting about President Obama’s speech to the UN was factually inaccurate, in the kindest way of stating that, and poor analysis. That is like saying a second baseman can’t hit, field, run or throw. It was basicly worthless. Obama supported the first Amendment and criticized an obnoxious offensive minor movie that offended many others in the world. He expressed his first Amendment rights and did not attempt to ban or limit the movie maker from expressing his stupid offensive view. American Nazis marched in Skokie. The President has the right to advocate, to use “the Bully pulpit.” You may view as unwise but would be wrong in my opinion. It is not a restriction of other’s first amendment rights. It actually is an appropriate exercise of Presidential power and an expression of appropriate American Foreign Policy. The President, certainly in that speech, did NOT restrict a person’s right to express offensive opinions. I often don’t respond to posting quickly; that may make me a bad blogger type person but maybe a better person as I think about things for a day.

    Obama was a University of Chicago law Professor. A second Univ. of Chicago law professor, Geoffrey Stone, wrote a book, Perilous Times, Free Speech in Wartime. It is 500 plus pages and cannot be done justice in one sentence but presents a view of preserving the first amendment in wartime and addresses the Alien acts, the Civil War and forward. It quotes Justice Brandeis, “Those who won our independence believed…courage to be the secret of liberty.” Interestingly enough Chief Justice Burger wrote a separate book about the first Amendment in wartime and, to the best of my memory, argued for or accepted a more “practical” or restrictive view. It is a balancing act and we are not always proud, after the fact, of decisions made in wartime to restrict the first Amendment but parties have been concerned that actions can endanger lives while we are actually at war. If you are interested, you might want to read more extensive, conflicting and quite frankly thoughtful views of the issue.

  37. Midwestern Dad says:

    The book was “All the laws but one, Civil liberties in Wartime” by Chief Justice Rehnquist. It was not Burger; I made a mistake. Sorry.

  38. John Burgess says:

    @Jc: Islam has already had several Martin Luthers. Abd al Wahhab was one such. So have been Ibn Taymiyyah and Sayid Qutb.

    What it has not had is a Voltaire or a John Locke. It’s Enlightenment, not Reformation that’s been lacking.

  39. G.A. says:

    Don’t ever tell me I can’t say or write whatever the hell I want to say or write. Congress shall make no law. And Congress should not make any law. If you don’t like me saying that I think your god, your prophet, your sacred text, your Oprah, your magic beans, your Honey Boo Boo, your miraculous preserved monkey tail, your special divine god-hat or whatever is a load of bullsh!t, too bad

    hey…. or your non logiciel anti semitic completely ******* stupid X Men/Star Trek theory!!!!!

    I am with you Harry!!!!!

  40. mantis says:

    @michael reynolds:

    I took this….to be edging toward the idea of limiting free speech.

    I don’t see it and barring something more explicit from Posner, I don’t think that is a fair assumption to make.

  41. Anderson says:

    What it has not had is a Voltaire or a John Locke.

    I’d settle for an Erasmus.