We’re Never Going to Her Parties Again

Vive la France
Another day, another “wave of outrage,” a cliché the New York Times deploys in reporting on a French humor magazine’s publication of “a series of cartoons mocking the Prophet Muhammad”:

The illustrations, some of which depicted Muhammad naked and in [crude] poses, hit newsstands across the country on Wednesday and were met with a swift rebuke from the government of François Hollande, which had earlier urged the magazine, Charlie Hebdo, not to publish the cartoons, particularly in the current tense environment.

But we were struck–favorably–by the language the government used. “In France, there is a principle of freedom of expression, which should not be undermined,” Foreign Minister Laurent Fabius told France Info radio. “In the present context, given this absurd video that has been aired, strong emotions have been awakened in many Muslim countries. Is it really sensible or intelligent to pour oil on the fire?”

To be sure, this is one of those “Yes, but . . .” constructions in which the first clause is a qualification and the second is the main message. Fabius’s statement is an inversion of Voltaire’s most famous aphorism: He may defend to the death your right to say it, but he does not agree with what you have to say.

But that’s fine. Free speech does not mean government-sanctioned speech, and Fabius’s criticism of the magazine’s editorial decision is an entirely reasonable and prudent one. The qualification, however, is crucially important–and, as we noted last week, it was missing from the statements of President Obama and Fabius’s counterpart, Hillary Clinton, about the YouTube film that the Obama administration blames for the recent anti-American violence in North Africa and elsewhere (though the Washington Examinerreports that the White House press secretary today put in a word for “the freedom of expression that is enshrined in our Constitution”).

France’s free-speech regime, it should be noted, is weaker than America’s, a difference that Egypt’s Muslim Brotherhood is evidently shrewd enough to grasp:

Mahmoud Ghozlan, a spokesman for the group, noted that French law prohibits Holocaust denial and suggested that similar provisions might be made for comments deemed blasphemous under Islam.

“If anyone doubts the Holocaust happened, they are imprisoned,” Mr. Ghozlan told Reuters. “It is not fair or logical” that the same not be the case for insults to Islam, he said.

Whether or not Ghozlan’s conclusion is correct, American law is both fair and logical in forbidding the censorship of both types of disagreeable speech.

On the op-ed page of the Los Angeles Times, Sarah Chayes, who formerly worked for both NPR and the Joint Chiefs of Staff, makes an argument for punishing blasphemy as an incitement to violence. (Incidentally, it’s not the first time the L.A. Times has published an op-ed arguing for limiting freedom of expression.)

Chayes cites the 1969 case of Brandenburg v. Ohio, in which the U.S. Supreme Court held unanimously that even speech advocating violence could not be criminalized absent both the intent to incite violence and the imminent likelihood of violence or lawbreaking.

Here’s the weakest link in her analysis:

As for imminence, the timeline of similar events after recent burnings of religious materials indicates that reactions typically come within two weeks. [Nakoula] Nakoula’s video was deliberately publicized just before the sensitive date of Sept. 11, and could be expected to spark violence on that anniversary.

While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. “Based on my understanding of the events,” 1st Amendment authority Anthony Lewis said in an interview Thursday, “I think this meets the imminence standard.”

Blogress cum law prof Ann Althouse wonders if the octogenarian Lewis really said that. So do we. Lewis always struck us as an old-time liberal where free speech was concerned.

In any case, here, from Chayes’s own piece, is the refutation of her claim that the violence was imminent:

According to initial media investigations, the clip whose most egregious lines were apparently dubbed in after it was shot, was first posted to YouTube in July. . . .

According to the Wall Street Journal, when the video failed to attract much attention, another Coptic Christian, known for his anti-Islamic activism, sent a link to reporters in the U.S., Egypt and elsewhere on Sept. 6. His email message promoted a Sept. 11 event by anti-Islamic pastor Terry Jones and included a link to the trailer.

So the reaction took not two weeks but two months. More important, it required the film’s propagation by mass media, including the Egyptian TV station Al Nas. NPR’s Steve Inskeep has the details in a piece on The Atlantic’s website:

The offensive film clip was almost unknown–an irrelevant piece of trash on the Internet–until a film producer managed to place a tiny item in an Egyptian newspaper. But it wasn’t until the TV broadcast that things really blew up.

The hosts played an extended clip of the video dubbed in Arabic, pondering what should be done. One, Khalid Abdullah . . . asked if anyone had apologized. His co-host Mohammed Hamdy declared, “An apology is not enough. I want them convicted.”

Should the U.S. prosecute them for incitement? Good luck with that. Inskeep reports that “in presenting the video, the broadcasters explained that they spread offensive speech because the public needed to be informed of in injustice.” Maybe they’re being disingenuous, but it’s hard to imagine a prosecutor could prove it beyond a reasonable doubt.

There’s an even worse problem with Chayes’s idea of prosecuting the filmmakers under the Brandenburg standard. The defendants in Brandenburg were members of the Ku Klux Klan. They advocated (but did not incite) violence on the part of their own supporters in order to promote their cause of racial supremacy. By contrast, the filmmakers provoked a violent reaction from the other side. To prosecute them would be analogous to punishing civil rights activists for inciting white supremacists to commit violent or lawless acts.

Some on the left will object to this analogy and claim that the filmmakers’ anti-Muslim “bigotry” makes them more akin to white supremacists than civil-rights activists. It is worth noting in response that Coptic Christians are a minority, and of late a persecuted one, in Egypt.

In any case, Americans have an unqualified right to disrespect religion. “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures,” Justice Tom C. Clark wrote in Joseph Burstyn Inc. v. Wilson (1952).

If the government made it its business in order to appease violent mobs of adherents, it would be not only an outrage against our fundamental freedoms but an invitation for more religious violence. Not to mention the terrorists would have won. Let’s keep blasphemy safe, legal and rare.