Hazards and Hopes of Limitless Freedom of Expression
TRANSCEND MEMBERS, 9 May 2011
Richard Falk – TRANSCEND Media Service
One of the glories of the Western Enlightenment, especially as embodied in the lifeblood of political democracies is freedom of expression, the right to give voice in public spaces to unpopular, tasteless, provocative, and even outrageous ideas, and especially those critical of the prevailing political order without fear of retaliation. In the United States particularly the right to express ideas and opinions are extended to symbolic acts such as burning the American flag as a way of dramatizing the repudiation of official policies, or more broadly, the right to challenge the symbolic ascendancy of nationalism and patriotism. The U.S. Supreme Court has generally takes a very broad view of freedom of expression but finds some outer limits. It indicated famously that it would validate laws prohibiting members of an audience from falsely shouting ‘fire!’ in a crowded theater. It explained that the likely result is panic and a stampede that can hurt of kill. Even at the height of the Cold War, with McCarthyism creating waves of conformity, the endorsement of Communist ideas were generally allowed, although loyalty oaths for certain types of employment were imposed and actual, and even suspected, Communist Party affiliations were punished both formally and informally. The dividing line in wartime and during periods of national tension is very thin as exemplified in the United States by past laws on seditious speech and required loyalty oaths, which when the crisis expires are often in retrospect disowned as mistakes.
The Rushdie Fatwa
These issues are often more easily be balanced by delicate legal and politics acrobatics within national political space, but finding a comparable balance globally has become far more precarious, if it is possible at all. The exceedingly difficult nature of the problem became evident to many after Salmon Rushdie in 1988 published Satantic Verses to Western critical acclaim and widespread Eastern censure, climaxing in the issuance of a fatwa by Ayatollah Ruhollah Khomeini on February 14, 1989 that declared it a duty of Muslims to kill Rushdie and to hold mortally accountable anyone anywhere who was associated with the publication of the book. Demonstrating that such words have deadly consequences, a Japanese translator, Hitoshi Igarishi was stabbed to death in 1991, as was an Italian translator of Satanic Verses. In addition, a Norwegian publisher of the book was violently attacked and barely survived. Rushdie himself went into hiding for about a decade with Britain effectively providing twenty-four hour police protection. In most countries with large Muslim populations the book was banned, with the notable exception of Turkey, and bookstores in the West that carried the book were threatened, and several were burned. Obviously, the fatwa had severe harmful effects on a variety of ‘innocent’ persons that carried far beyond Iran, the country of utterance by its supreme leader, that is, if innocence is assessed by Western liberal norms.
In 1998 Iran’s President Mohamed Khatami appeared to withdraw support for the fatwa, and seemed eager to bring to an end the anti-Rushdie worldwide campaign, but the fatwa remains formally in effect as it can only be withdrawn by the person who issued it, and Khomeini had died long before Khatami spoke out even assuming, which is highly unlikely, that the author of the fatwa might have been later inclined to back away from the harshness of the original condemnation. Had Khomeini been alive in 1998 he would have almost certainly reaffirmed the fatwa, and might likely have gone on to challenge Khatami’s qualifications to provide secular leadership for the country. With respect to the treatment of the Rushdie book there exists a definite clash of values and rights. In most countries in the West this publication was immediately treated as an important work of literature by a renowned author whose publication was initially not thought as posing any challenge to freedom of expression, while in many Islamic societies the book was immediately viewed as offensive to deeply held community and religious beliefs as to make its availability and distribution arguably unacceptable, and regarded by public authorities as such a grave threat to public order to lead several governments to ban its publication. This diversity about matters of cultural and religious propriety and the fixing of some limits on free expressions seems inevitable in a state-centric and multi-civilizational world that contains contradictory assessments of the balance between individual freedom and community values. This diversity is an accurate reflection of the world order that currently exists, and is incapable of being persuasively resolved by resort to claimed universal principle. Despite the worldwide rise of human rights, universal norms cannot resolve difficult controversies about rights and values, although almost everywhere except Iran the Khomeini fatwa was treated as a deeply troubling precedent. The fatwa claimed an unreviewable authority to mandate death by unreviewable decree to the author of a book and those who facilitated publication even though in their political space no law was broken or widely endorsed moral position was affronted. This fatwa was indeed a bridge too far!
How to prevent such abuses in the future is a daunting challenge. It is difficult to propose a better response than the ancient encouragement of comity among countries, but this reliance on reciprocal courtesy and respect among sovereign states can hardly be expected to exert much influence on those who act on the basis of genuinely held fundamentalist beliefs about good and evil. It is inevitable that there will at some point arise somewhere on the planet behavior that will give rise elsewhere to the formulation and implementation of efforts to punish or react to controversial ideas that are found offensive within and beyond territory.
The Danish Cartoon Controversy
In many ways as insulting to Muslim sensibilities around the world as Satanic Verses, was the Danish newspaper’s publication in 2005 of twelve cartoons depicting the prophet Mohamed in a derogatory manner. In response, riots leading to several deaths took place in Asian countries. The Danish official defensive response to criticism after the event was to call attention to the existence of national penal laws that prohibited blasphemy or discriminatory statements. It was a curious gesture because at the same time the Danish prosecutor declared the inapplicability of these laws in this instance because the cartoons addressed matters of ‘public interest’ whose publication was thus entitled to special protection. Here, there was more at stake than the trouble caused overseas. The cartoons also caused intense discomfort to Muslim minorities living in Denmark and elsewhere in Europe. The publication and political debate that followed was properly regarded as confirming the reality of an Islamophobic climate of opinion taking shape in Europe. The Danish response was essentially premised on freedom of expression as insulating even deliberately insulting remarks and images associated with religions and their sanctified leadership. In this respect, Copenhagen was arguing that Islam was not being singled out. Every religion, including Christianity, it was said had been at various times attacked in a manner that could be construed as blasphemous. But what here of the predictable impact of the cartoons, causing violent reactions around the world and intensifying hostility to Muslims within Denmark? Is this not analogous to shouting fire in a crowded theater? That is, the publisher and editor of the Danish newspaper should have anticipated these harmful effects, although some observers have argued that the riots were not the foreseen, and were primarily caused by the cartoons. Seen in this manner, the ensuing violence was mainly the result of opportunistic and irresponsible mainstream religious figures in several Muslim countries seizing the inflamed moment by agitating mobs to bolster their own personal influence. Unlike Rushdie, who acted perfectly reasonably, given his British residence and citizenship, the Danish provocation should arguably have been avoided by self-censorship, and the violent responses in Asia were exaggerated reactions that also should never have happened. It is generally desirable to encourage free expression without the state administering the limits, but in that case it is up to the state to prevent riots and societal violence.
The challenge is a difficult one. It could be argued that a stronger civic tradition on Rushdie’s part, but even more so in relation to Khomeini, would have produced self-censorship. Long after the event, Rushdie expressed surprise, and even a tinge of remorse, that his novel had become an occasion for such a violent and enraged backlash. Long after the fact he gave the impression on occasion that he might not have written such a book had he anticipated the consequences for himself and others. In contrast, the Danish newspaper was forewarned of inflammatory effects but went ahead without any hesitation. In effect, self-censorship does not currently protect against the harmful effects of incendiary forms of expression in the hostile and commercially driven, even hateful, environment that exists, and even promotes a culture war against or on behalf of the Muslim world.
Burning the Koran
The case of Terry Jones, the fundamentalist pastor of a small Christian church in Gainesville, Florida called the Dove World Outreach Center, founded in 1996 and serving 50 families, is a dramatic illustration of the dilemmas posed by hateful and irresponsible speech, not by a supreme leader as with Khomeini but by an obscure religious figure who would have remained forever unknown except for his outrageous provocation. The actions of Rev. Jones illustrate the ethical and political challenge in its most vivid form. Jones proclaimed his intention to burn the Koran on the anniversary of September 11 in 2010, even proposing the establishment of an “International Burn a Koran Day.” He had earlier published a booklet entitled “Islam is of the Devil,” and in August 2009 two children from his church were sent home from a local school because of ‘inappropriate dress,’ T-shirts with “Islam is of the Devil” emblazoned in bright letters. The Florida community did what it could to rein Jones in by informal action, denying Jones a burn permit and seeking to cancel the mortgage outstanding on his church. When asked to explain the recent shrinkage in his church membership by 50% Jones cunningly replied, “I think mainly just because the things we’re involved in are just really too hot for your normal Christian and your normal person.” Prior to the burning last month, many urged Jones to refrain, including even General David Petraeus who correctly warned that such anti-Islamic acts would endanger the lives of American troops under his command. And indeed two American soldiers were killed in distant Afghanistan apparently to avenge the Koran burning. Of course, such an incident should be appreciated as a personal tragedy for those singled out, although the American military presence in Afghanistan was likely a contributing cause, and in its own way an unlawful and irresponsible provocation. Should the state step in and impose a punishment or forbid such speech? On what authority? Should the idea of hate speech be associated with hostility to a book (as distinct from a person) that is treated as sacred by more than a billion persons? Is its denigration an intolerable incitement to public disorder? Does the answer depend on the national or civilizational setting at a particular historical, or are we now living in such a globalized and networked world as to make geographic boundaries of acceptable expression meaningless?
The Manning Case
This brings me, finally, to the sad and illuminating case of Bradley Manning, a young intelligence analyst serving in the military. While Terry Jones is a free man despite deliberately generating violent reactions to speech and symbolic deeds known to be deeply offensive to many people, Manning seemingly acted out of conscience and belief facilitating the release of thousands of documents that had been classified by the U.S. Government, Iraq and Afghanistan war logs, confidential State Department cables, and other classified materials. As with Daniel Ellsberg’s release of the Pentagon Papers almost 40 years earlier, the evident intention of Manning was to inform people about the realities of government policies that were producing death and destruction in foreign countries. It seems that Ellsberg, also a government security specialist with privileged access and status, wanted the American people to know some core truths about the planning and perpetration of the Vietnam War that were dramatically at variance with what the public was being told about the war by the government. With Manning his range of motivations is not fully known, but he seems also to have become deeply disenchanted with the unlawful and immoral manner with which the United States was using its military power around the world, and the extent to which it was hiding war crimes behind heavy curtains of unwarranted secrecy. Manning has not yet been prosecuted, but has been held in demeaning and cruel conditions for many months. Without alluding to any extenuating circumstances, President Obama has not only said in response to a question from a journalist in the face of protests by human rights groups and others about Manning’s treatment in military prison that it was “appropriate and meets our basic standards,” but also was later caught on tape prejudging the case by saying in a private conversation at a fundraising dinner that Manning “broke the law,” and should be prosecuted.
The Manning case is a further stain on the moral reputation of the United States. It exhibits a vindictiveness toward a citizen, and a low ranking member of the armed forces, who steps out of line, seeking to allow a wider public of a democratic society to know a series of ‘inconvenient truths.’ Perhaps, there is some justification for some secrecy in diplomatic communication, and thus for laws that punish improper disclosures, or leaks. But each case needs to be judged in relation to its specific context. This case has many extenuating circumstances, and calls for leniency and empathy, taking account of Manning’s motivation and the improprieties exposed, rather than the vindictive approach so far taken by American officialdom. Let us remember that high government officials often leak classified information for their own purposes, including the exertion of influence on the media treatment of controversial policy issues. They almost never suffer any adverse consequences, enjoying what amounts to de facto impunity. What is striking about the Ellsberg/Manning disclosures is the whistle blowing character of their actions, that is, essentially a contribution to public wellbeing. In Manning’s case the documents given to WikiLeaks, including a classified video of a military incident in Afghanistan (an Apache helicopter attack that killed two Reuters News employees and several civilians without any indication of a military target), as well as many documents confirming U.S. association with war crimes, government lawbreaking, and serious corruption. Such behavior deserves to be known by the American public and should never have been allowed to happen in the first place. Rather than condemning the disclosures, the behavior disclosed is what should have produced presidential anger and appropriate action.
In a healthy democratic society such behavior would be protected if the intentions of ‘unlawful’ were shown to be positive and reasonable, and no unwarranted harm could come to named individuals. According to reports, the documents released by WikiLeaks were carefully screened in advance to avoid targeting individuals. Complex modern societies are rendered more secure by the safety valve of whistle blowing, and at the very least, benign leadership should moderate the implementation of secrecy laws by an acknowledgement of the huge public benefits of and needs for governmental transparency. In this instance President Obama’s inappropriate assertion of Manning’s guilt prior to a criminal trial under the auspices of a military tribunal further highlights the degree to which statist interests outweigh both justice to an individual charged with serious crimes (remember that innocence until proven guilty by a court of law operating according to due process is a fundamental right) and disregards the interest of the citizenry in the greatest possible transparency on the part of their government. If due process prevails even a military tribunal should conclude that Obama’s statements have been sufficiently prejudicial, after all he is commander in chief whose views are not likely to be contradicted in a military venue venerating hierarchy and chains of command, to have the case against Manning thrown out. Such an outcome is also justified as a result of severe and sustained pre-trial abuse that cumulatively amounts to ‘torture,’ or what the Bush presidency chillingly called the techniques of ‘enhanced interrogation.’
The German philosopher, Friedrich Nietzsche, wrote in 1885: “The state is the coldest of all cold monsters. Coldly it lies, too; and this lie creeps from its mouth: ‘I, the state, am the people.’” [Thus Spake Zarathustra, ‘Of the New Idol’]
In the Manning case this coldness is exemplified, as is the lie that because the state is the people, the people have no needs to know beyond what the state is prepared to disclose, however incriminating the information. This coldness of the state is expressed by criminalizing truth telling, branding it as virtually a form of treason, whereas a humane political community would seek to learn from those in their midst who are brave and dedicated enough to reveal to their citizen comrades what is hidden because it should never have been allowed to take place. To punish righteousness is the seminal sin of organized power that the Bible warns about over and over again, and yet the ears of the modern cold state remain are plugged on principle, with the help of laws that stifle those forms of freedom of expression needed to ensure a lawful government. The same state that will go to great lengths to claim virtue for itself because it tolerates criticism will spare no effort to punish those who dare to expose its criminality. This punitive reflex must be curbed if democracy is to flourish in the 21st century.
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Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, the author or co-author of 20 books and the editor or co-editor of another 20 books, speaker, activist on world affairs, and an appointee to two United Nations positions on the Palestinian territories. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies, and since 2005 chaired the Board of the Nuclear Age Peace Foundation.
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