The Charlie Hebdo murders exposed a lot of ambivalence on the part of our leaders and public intellectuals regarding free expression. For example, the Pope all but apologized for this horrific crime, offering us the homey analogy that were even a dear friend to utter “a swear word against my mother, he’s going to get a punch in the nose. That’s normal.”[1] I guess it’s time to forget all about that silly “turn the other cheek” business.
Another prominent commentator condemned the murders unconditionally, but suggested that we, as a society, should ask ourselves, “Whether pens are swords or tools, are we using them well?”[ 2]. But, why should we ask that? When an aspiring Tolstoy turns out painfully bad fiction, should we question whether he is using prose in a responsible fashion? What’s suspect about bad painting, prose and poetry? Answer: nothing.
Our president took a very similar line in a recent speech given at the National Prayer Breakfast:
But part of humility is also recognizing in modern, complicated, diverse societies, the functioning of these rights, the concern for the protection of these rights calls for each of us to exercise civility and restraint and judgment. And if, in fact, we defend the legal right of a person to insult another’s religion, we’re equally obligated to use our free speech to condemn such insults and stand shoulder-to-shoulder with religious communities, particularly religious minorities who are the targets of such attacks.[3]
This perspective is morally perverse and repulsive because it fundamentally and dangerously misconstrues the ethical foundation of free expression, which has everything to do with the moral status of the speaker and nothing to do with the quality of the communication or the effect on the recipient.
Try as I might to unravel it, Obama’s first sentence (quoted above) is confused if not incoherent. The First Amendment provides a virtually unfettered right of free expression, including the insulting or offensive variety.[4] One of the few legitimate functions of the state is to enforce such rights. Thus, I see no connection between “the functioning” of this right, or “concern for [its] protection” and the asserted need to be civil. Does the right to vote also depend on our supporting only candidates who are “civil” and “responsible”? I thought we are entitled to vote for whomever we please. Is our president saying that we will lose our First Amendment rights if we are not civil? Is this a threat?
The second sentence is no better. Contrary to Obama’s apparent understanding, the right of free expression rests on an entirely different ethical foundation than any obligation we may have to “condemn such insults,” and therefore has a radically different level of stringency. Respecting the right of others to communicate their thoughts, ideas, and opinions, whatever the content or quality, is what Kant describes as a “perfect duty,” meaning that our obligation is clear, and binding on all moral agents.
This obligation arises from the fact that persons, as rational agents, are entitled to a sphere of autonomy that includes their utterances and writings, which is an essential aspect of their character and identity. Mediocre intellects and bigots will not offer us brilliant insights or uplifting commentary, but they have the same right to express themselves as any modern day Aristotle. It is therefore impermissible to interfere with them unless necessary to protect the rights of other innocent persons.[5] Accordingly, the use of an appropriate degree of force would be justified if necessary to vindicate this right.
But, there is no comparable right not to be offended or insulted by other people’s speech. If an enforceable right not to be offended exists, it must have some moral basis, and it is difficult to imagine what this might be. Sure, listeners may be pained by communications they perceive as insulting or offensive, but there is a world full of hurt that individuals inflict on each other, for which we properly extend no legal remedy.
For example, Billy-Joe really, really, really, wants to take Sally to the prom, but for entirely superficial and arbitrary reasons she decides to go with Sam. Moreover, she lets all her friends know that she rejected Billy-Joe. The young lad is devastated, but since Sally is acting within her rights, he has no valid legal complaint, despite the fact that Sally has acted in a rather cruel way.
Or, suppose that Jeff and Bob have since high school been informal competitors in a “who is more successful” contest. When Jeff gets a promotion he purchases a new Ferrari and drives it by Bob’s house until he is sure to notice, knowing this will turn his rival green with envy. Here again, because Jeff is acting within his rights, we do not grant Bob a legal remedy for Jeff’s somewhat malicious behavior.
Since those with deep religious feelings have no right to be shielded from offense, it should be obvious that we are not “equally obligated to condemn such insults,” as we are to protect the right of the speaker. In fact, at most we have what Kant would call an “imperfect duty,” with great latitude regarding how, when, and whether to act, based on the circumstances presented. Just to start, we are not obligated to defend religious communities that deserve to be insulted, such as those that practice honor killings and female genital mutilation. Perhaps it would be better to respond to hateful practices and beliefs with gentle rebukes, but the speaker has a right to express their feelings as they choose. If it’s the President’s contention that all religious communities and doctrines are beyond reproach, I would love to see his argument for that.
The “equal obligation” claim is also belied by the fact that those religious communities that suffer insult are not helpless waifs, dependent on the kindness of strangers to vindicate their faith. One of the virtues of free expression is that it permits those offended by speech to respond, and defend their beliefs in the marketplace of ideas. Or to return insult for insult, if they prefer. Moreover, those subjected to offensive speech can stop reading or change the channel. But the victims of state censorship have no comparable options. Once the state decides to suppress speech, its monopoly on force gives the victim the stark choice of compliance or punishment.
Free speech is, of course, not suffered by tyrants and autocrats, but it is not permitted in its pure form even in liberal democracies.[6] We alone have the First Amendment, which in its plain language prohibits Congress from making any law that abridges it. However, the safeguards provided by the Constitution are only as secure as our institutional commitment to enforce them, and when even our president says things this morally obtuse, one can legitimately despair about its future even here.
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[1] CBS News, “Pope Francis: There is a Limit to Free Speech, January 15, 2015.
[2] Remy M. Maisel, “Je Ne Suis Pas Exactment Charlie,” Politico, January 9, 2015.
[3] President Barak Obama, “Remarks by President at National Prayer Breakfast,” February 5, 2015.
[4] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
[5] For a powerful argument for this position, see Robert Nozick, Anarchy, State, and Utopia, pp. 30-4, 48-50, and my development thereof in Nozick’s Libertarian Project: An Elaboration and Defense, Chapter 1.
[6] See The Legal Project, “European Hate Speech Laws” (and links cited there), http://www.legal-project.org/issues/european-hate-speech-laws.
