CritCom | Homepage

Why ‘Charlie Hebdo’ Is Not about Free Speech

1 Comment 🕔10.Aug 2015

This article is part of our feature Je Suis Musulman: European Muslims after Charlie Hebdo.

A tribute mural to Charlie Hebdo’s cartoonists by graffiti artists mr.R et papagibs. Photo credit: ID Number THX 1139

 

by Marcel Maussen

In the aftermath of the horrendous attack on the staff of Charlie Hebdo on January 7, 2015, a remarkable consensus emerged about the significance of this event. This act of terrorist violence was to be understood as an attack on the freedom of speech. Politicians and public commentators called for civil courage and for unconditional support for the freedom of thought. The victims were journalists and cartoonists, brutally murdered because of their mockery of Islam and the prophet Mohammed, and the response that was asked for was unconditional support for the right to be critical of religion and to freely express one’s mind, also in cases in which others considered that critical speech to be ‘offensive’ or ‘blasphemous.’

The identification that went with the slogan ‘Je suis Charlie’ signified both solidarity with the victims of this terrorist attack and support for the “principle of free speech, against which the terrorists had so successfully aimed their Kalashnikovs” (Fogteloo and Schutte 2015). In a period of emotion and distress, a particular framing of the events thus emerged, which provided a ‘cognitive map’ to make sense of what had happened, why it had happened, and what fundamental principles were at stake. Framing also helps us identify what is crucial and essential, as opposed to what is secondary and peripheral. It suggests plausible courses of action, while delegitimizing others, and it helps us identify ‘friends and enemies.’ In this case, the enemies were not only the terrorists themselves, but equally those ‘progressive elites’ who had been afraid to criticize Islam and political leaders who had suggested that Europe is founded on ‘respect for religion’ and had thereby been giving ‘the wrong signal’ to terrorists who were now strengthened in their conviction that “Western democracies are weak and pitiful” as the Dutch legal scholar Paul Cliteur observed (2015, 310). The French newspaper Le Monde also framed the event in these terms:

Soldiers of liberty, of our liberty, they have died for it. Died for drawings. Behind them it was obviously the freedom of expression – of the press as well as that of all citizens – that was the target of the assassins. This freedom to inform and to be informed, to discuss and critique, to understand and convince, this independence of the mind, this necessary and vital courage of liberty is what these murderers have sought to destroy with their bullets.

This attachment to freedoms is at the center of democracy. But this sinister jihadi commando has brutally reminded us that today the freedom of thought and expression is an intolerable threat for the Law of God they dream of imposing.[1]

(Editorial in Le Monde, January 8, 2015)

This is a powerful story, written with the emotional appeal of colleagues and friends of the cartoonists and journalists who were brutally murdered in Paris that day, and with an explicit demand to defend the democratic right of free speech against religious fanaticism. A similar frame was erected right after the assassination of Theo van Gogh, when the event was also first and foremost related to ‘free speech,’ even though themes such as the ‘failed integration’ of Muslim immigrants and ‘the global war on terrorism’ also provided avenues for understanding the event (Hajer and Maussen 2004).

In order not to be misunderstood, let me emphasize in what ways free speech indeed was at stake in this event. The terrorists were out to kill people who had ‘offended’ the prophet and Islam, and who had engaged in speech acts that these radicals deemed ‘illegitimate’ for religious reasons. Second, the attacks do not stand on their own, but fit in a pattern or regime that clearly targets speech on Islam. That regime includes both state and societal repression of religious critiques in the Muslim world, and the climate of threats and (attempts at) violence and murders that now hangs as a dark shadow over the discussion about Islam in the whole world, including in Europe. The attempts at the assassinations of Salman Rushdie, Ayaan Hirsi Ali, Kurt Westengaard, Geert Wilders, and Lars Vilks, and the slaughtering of Theo van Gogh in Amsterdam in 2004 have demonstrated the real level of threat. The idea that in view of this regime and threat there is a need for civil courage, and a willingness to stand up for democratic principles when they are threatened by anti-democrats, is also right. And there is a great deal of truth also in Cliteur’s observation that terrorist leaders have found it a good strategy to make democratic states pay for the costs of protecting people on a day-to-day basis. Muslim extremist leaders need only issue a threat and can then trust ‘private militias’ and ‘lone wolves’ to execute them or at least create sufficient levels of threat to force democratic states to respond with a view to protecting potential victims.

In my view, however, there are good reasons to be more reflexive about this framing and the kinds of coalitions between ‘friends’ and ‘enemies’ it asks for, and the types of reactions that it constructs as plausible and legitimate. I believe that the most important aspect of the event is not what motivated the perpetrators, but the means they used, the violence they employed, and the fact that they saw themselves as legitimized in executing such an extreme form of taking the law in their own hands (in Dutch ‘eigenrichting,’ in German ‘Selbstjustiz’). What should be rejected, then, is first and foremost any form of ‘taking the law in your own hands’ and these types of extreme acts of violence. The fact that acts of violence and threats have a ‘chilling effect’ on free speech is correct, but the point should be that acts of violence are a threat to all kinds of freedoms and the rule of law.

Importantly, we should recall that among the main reasons to rally around the freedom of speech has been to contest censorship and repression by the state. Voltaire’s famous phrase in his treaty on tolerance (1763) – “I disapprove of what you say, but I will defend to the death your right to say it” – was written in reaction to the assassination of Jean Calas in Toulouse, who was sentenced and executed by public authorities. Thus, in my view, we should primarily focus on free speech when a state or public authorities are involved in regulating and limiting free speech, whereas we should primarily focus on ‘Selbstjustiz’ when violence is used to impose on others or on a society one’s views on the limits of ‘legitimate speech.’

One of the advantages of ‘reframing’ (Lakoff 2004) the debate about Charlie Hebdo in this direction is that it clarifies why all those who wanted to express their disgust and revolt after the attack would get trapped when trying to argue that identifying with ‘Je suis Charlie’ did not necessarily imply they believed ‘free speech’ was the highest of all democratic principles. The idea that one could simultaneously make a plea for regulation of speech (in view of other democratic principles, such as non-discrimination, security, protection from harm) and condemn this act of violence and ‘Selbstjustiz’ became utterly inconceivable. It would make the statement ‘Je suis Charlie’ too complex and too conditional. Anyone who tried to say something along these lines could then be accused of being in the wrong camp, if not directly siding with the terrorists. This is exactly what people like Paul Cliteur and the leader of the Dutch populist Freedom Party (PVV) Geert Wilders have argued: if you suggest that sometimes free speech should be limited, you are siding with those who kill in the name of Allah.

I argue that it might be more fruitful to separate a debate on ‘Selbstjustiz’ and ‘taking the law in one’s own hands and violence’ (in which democrats would demand an unconditional commitment to non-violence) and a debate on regulation of speech (in which far more nuanced positions may be possible and defensible from a liberal-democratic point of view). In the remainder of this essay, I will therefore first clarify my position on regulation of speech, the balancing between the value of free speech and other principles and values, and the particular role of the state in this regard. I will then briefly consider different modes of regulation of speech by non-state actors and their legitimacy (and the types of opportunities they offer). Finally, I will briefly return to the substantive issue of whether regulation of the type of speech for which Charlie Hebdo stands was appropriate.

Freedom to insult

“Freedom to Insult” – UK Muslims protest Danish cartoons in February 2006. Photo credit: Stef

 

Regulation of speech

Freedom of expression is among the foundational principles in liberal-democratic states. The right to express thoughts, emotions, and feelings, and to be able to take knowledge of the expressions of others, is seen as inextricably related to the freedom of conscience. Freedom of expression is valued in all kinds of societal domains and protects all kinds of expressions and speech. In legal and academic discourse, it is taken as a given that the significance of the principle of ‘free speech’ can only be meaningfully discussed in relation to types of speech: producing and consuming advertisements is not conceived of in the same way as making and consuming pornography, the reasons to provide artists great freedoms to produce ‘artistic expressions’ may be motivated differently compared with the rights associated with journalism or parliamentary democracy, and so on. In the case of Charlie Hebdo, there seems to be agreement that we should consider (political) cartoons and satire that target political, social, and religious groups and individuals as ‘public speech’ – that is, speech expressed in public forums (and hence not private), and that conveys messages on ‘public matters’ (Maussen and Grillo 2014, 175; Bleich 2011, 76). There is also wide agreement on the value of freedom of expression with regard to ‘public speech.’ Freedom of public speech is considered crucial for liberal democracy, allowing people the possibility to express or write what they think, and allowing others to take notice thereof. As such, free speech is a necessary condition for a democratic debate, in which there should be room for discussion of all kinds of social and political phenomena, issues and trends. The European Court of Human Rights has stipulated that freedom of expression protects the right to speech that may offend, shock or disturb the state or any sector of the population. In an insightful article, Veit Bader (2014) has suggested that we speak in terms of ‘freedoms of political communication’ to emphasize that in this context the protection of the liberty to express ideas, thoughts or arguments should ensure opportunities for communication, and that this requires protection of a broader range of freedoms, such as freedoms of the media, journalism, protection of parliamentary speech and immunity, associative freedoms (e.g. to found political parties), and so on.

But like any other freedom, the freedom of expression is not unlimited. The right to make or consume extreme pornography is restricted because of the protection of the bodily integrity of those involved in producing it. The material also should not incite to violent and degrading actions, which is why some extremely violent scenes are criminalized, even if they are produced in a way that did not cause harm to anyone, as is the case with ‘virtual child porn’ or a ‘theatrically staged’ group rape. The right to advertise is restricted because a company is not allowed to expose another company in a deceitful manner. In the case of ‘public speech,’ criminalization will often – apart from incitement to violence (‘clear and present danger’) – be discussed in relation to so-called ‘hate speech,’ which is speech that is (1) directed against a specified or easily identifiable individual or group of individuals based on aspects of their core identity; (2) stigmatizes the target group by implicitly or explicitly ascribing qualities widely regarded as highly undesirable; and (3) because of its negative qualities, the target group is viewed as an unwelcome presence and a legitimate object of hostility (Maussen and Grillo 2014, 175, drawing on Parekh 2012, 40–41). Mostly then, the criminalization of public speech is based on speech that incites to discriminatory actions (e.g. to saying ‘no Moroccan will enter my discotheque’) or that has a strongly stigmatizing character, representing a group of people as of less value or a legitimate object of hatred and violence.

Importantly, the debate about freedoms of political communication is mostly focused on questions regarding whether the state threatens freedom of expression. In principle, a state has two main avenues to do this: ex-ante and ex-post. In the first case, we would think of censorship, for example, in which the state would demand to review and approve the publication of ‘expressions in the making.’ Despite the bad reputation of the concept of ‘censorship,’ which echoes the Inquisition and the practices of authoritarian regimes, it is a practice that in liberal democratic states is still considered appropriate in some domains, for example with ‘classified information’ or with publication of news about the Royal family. Another form of ex-ante regulation would be the need to ask permission for a public manifestation. Ex-post, the state can punish the writer, artist or citizen with a fine, imprisonment, taking away civil or political rights or, in the case of non-liberal democratic states, by corporal punishment or even death. In totalitarian and authoritarian regimes (Cuba, North Korea, Russia, Saudi Arabia, Zimbabwe, and others) and in weak democracies (such as Hungary and Turkey), the state, indeed, is a serious threat to the freedom of expression.

 

Non-state actors and free speech

What about the possibilities of non-state actors to regulate public speech, especially when it comes to their possibilities to limit (rather than expand) opportunities for free speech? Obviously, a whole range of opportunities exists for private and public organizations to ‘regulate’ public speech: universities, TV stations, editorial boards of newspapers, moderators on Internet fora, directors of debating clubs, football clubs, teachers in secondary schools, and others – all will make decisions about the speech they deem acceptable and what limits they will try to uphold and how. Another dimension of this discussion concerns pluralism in the press and opportunities for wealthy actors to install de facto monopolies in the written press of other media. Social and cultural codes may be upheld that function as limitations to public speech – for example, based on ideas about ‘politeness’ or (much maligned) ‘political correctness.’ All of these forms of regulation and of shaping (and limiting!) opportunities for free speech are deemed legitimate or at least are tolerated in a liberal-democratic state, even though the ways they are enacted and where the boundaries of tolerable speech are drawn may be contested. But generally we agree that these types of actors have a legitimate right to ‘regulate’ speech in what they may claim as their domain or setting, be it a space, a newspaper, a broadcasting station or an institution such as a school. The appreciation and the perceived legitimacy of ‘regulation’ changes when others demand the right to regulate speech in those spaces, settings or institutions. In that case, both the motives and the modalities will matter: do ‘outsiders’ intervene peacefully – for example, to question sexist or racist speech? Do they aim to raise consciousness and/or question norms about what is and what is not within the boundaries of legitimate speech? Do they manifest and demonstrate (peacefully or more violently) in order to disrupt speech by others (as in anti-racist groups challenging a Neo-Nazi march)? In these cases, the state and public authorities may step in to protect the free speech of some against undesired and imposed forms of ‘regulation’ by others.

There exists thus a broad range of interventions that non-state actors may use in view of regulating speech in their ‘own’ sphere, as well as in domains, spaces, settings and fora controlled by others. They may simply express their dissatisfaction or disgust, they may invite the state to intervene (for example in court or in a petition), they may seek to challenge existing norms and ideas (think of the feminist movement), they may manifest, but they can also use more contentious and even violent means. However, they overstep a boundary when they simply claim the right to take the law in their own hands and violently impose a form of ‘Selbstjustiz.’ Importantly, what matters is that the state should play its role as the main authority that can regulate speech for society as a whole, and that it expresses its determination in doing so in a way that balances concerns regarding free speech with other principles, values, and interests. This implies that rather than seeing a state’s willingness to intervene in order to regulate public speech as a symptom of it siding with the concerns and motives of ‘religious fanatics’ and ‘the enemies of democracy,’ one could see it as a symptom of a state upholding a liberal democratic order in which principles and interests need to be balanced, and which by being a well-functioning order undercuts any discursive legitimization of ‘Selbstjustiz.’

In this perspective, I argue that in framing the events in Paris the emphasis should be on the violent means that were employed, rather than on the underlying motives. For the state, the main issue becomes when individuals or groups overstep the threshold of non-violence and enact a form of ‘Selbstjustiz.’ The attacks in Paris are illustrative of an extreme form of ‘taking the law in one’s own hands’ executed by two men belonging to what the Dutch journalist commentator Bas Heijne has aptly called a new form of ‘gangster Jihadi-Machismo.’ The strongest disqualification of their acts can very well co-exist with an understanding for demands asking for regulation of public speech that is deemed offensive, shocking or experienced as a form of hate speech. In my opinion, there are good grounds for saying that Charlie Hebdo’s cartoons were well within the boundaries of protected speech (i.e. speech that is allowed) despite the fact that oftentimes the weekly managed to ‘offend, shock and disturb.’ Still, all those who think Charlie Hebdo overstepped the boundaries of legitimate public speech should in a democracy have all the opportunities to express their indignation if not disgust, and to turn to the judge if they think state intervention is needed. They can ban these forms of speech from their ‘own’ domains (schools, newspapers) and lobby or convince others to do the same. However, they cannot and should not turn to ‘Selbstjustiz’ and violence to impose their views on others.

 

Marcel Maussen is Assistant Professor in Comparative Politics and Political Theory. His research focuses on governance of religious diversity and Islam in Western Europe, free speech and other fundamental freedoms, and democratic theory.

 

This article is part of our feature Je Suis Musulman: European Muslims after Charlie Hebdo.


[1] Soldats de la liberté, de notre liberté, ils en sont morts. Morts pour des dessins. A travers eux, c’est bien la liberté d’expression – celle de la presse comme celle de tous les citoyens – qui était la cible des assassins. C’est cette liberté d’informer et de s’informer, de débattre et de critiquer, de comprendre et de convaincre, cette indépendance d’esprit, cette nécessaire et vitale audace de la liberté que les tueurs ont voulu écraser sous leurs balles.

Cet attachement aux libertés est au cœur de la démocratie. Mais le sinistre commando djihadiste nous rappelle cruellement que pour certains, aujourd’hui, la liberté de pensée et d’expression est une menace intolérable contre la loi de Dieu qu’ils rêvent d’imposer

 

References

Bader, V. (2014) ‘Free Speech or Non-discrimination as Trump? Reflections on Contextualised Reasonable Balancing and its Limits’, Journal of Ethnic and Migration Studies, Vol. 40(2): 320-338.

Bleich, E. (2011) The Freedom to be Racist? New York: Oxford University Press

Cliteur, P. (2015) ‘Vrijheid van expressive na Charlie [Freedom of Expression after Charlie], Nederlands Juristenblad, Vol 6(2): 306-311.

Fogteloo, M. and Schutte, X. (2015) ‘Editorial’ in De Groene Amsterdammer, January 15.

Hajer, M. and Maussen, M. (2004) ‘Betekenisgeving aan de moord: een reconstructie [Giving meaning to a murder: a reconstruction]’, Socialisme en Democratie, Vol.  61(12): 10-18.

Lakoff (2004) Don’t think of an elephant! Know your values and frame the debate. White River Productions, VT: Chelsea Green

Maussen, M. and Grillo, R. (2014) ‘Introduction: Regulation of Speech in Multicultural Societies’, Journal of Ethnic and Migration Studies, Vol. 40(2):174-193.

Parekh (2012) ‘Is there a case for banning Hate Speech?’ In The Content and Context of Hate Speech: Rethinking Regulation and Responses, edited by M. Herz and P.Molnar, 37-56, Cambridge: Cambridge University Press.

 

 

1 Comments

  1. 🕔 15:12, 23.Sep 2015

    david

    Of course ‘free speech’ is not unlimited. Among other things, we have libel laws. But BLASPHEMY is not just a particular form of libel in which the aggrieved seeks damages in the form of money and/or an apology or a cessation of the offending speech. Blasphemy is a crime against God that may not be tolerated and cannot be rectified by damages– only elimination of the blasphemer will do. And if you are doing God’s work, violence may well be required. The only resolution to this requires the religion to abandon the punishment of blasphemy.

    reply comment

Write a Comment

Your email address will not be published. Required fields are marked *