Friday, January 30, 2009

The Limits of Free Speech

There's an interesting op-ed in the NYT today by Ian Buruma. It's about Geert Wilders, the extremist Dutch parliamentarian who will soon be tried for hate speech (he's compared the Koran to Mein Kampf, advocated banning it, and produced a short film arguing that Islam is an inherently violent religion). 

Wilders is definitely a vile person; there's no doubt about that - but there's something curiously ambivalent about the piece. Buruma doesn't take a really firm stand on the prosecution (though, from my reading, he seems to be leaning in favor of it), but he does have a few criticisms of Wilders' liberal defenders:

Whether Mr. Wilders has deliberately insulted Muslim people is for the judges to decide. But for a man who calls for a ban on the Koran to act as the champion of free speech is a bit rich. When the British Parliament refused to screen Mr. Wilders’s film at Westminster this week, he cited this as “yet more proof that Europe is losing its freedom.” His defenders, by no means all right-wingers, also claim to be standing up for freedom. A Dutch law professor said he found it “strange” that a man should be prosecuted for “criticizing a book.”

This seems a trifle obtuse. Comparing a book that billions hold sacred to Hitler’s murderous tract is more than an exercise in literary criticism; it suggests that those who believe in the Koran are like Nazis, and an all-out war against them would be justified. This kind of thinking, presumably, is what the Dutch law court is seeking to check.

One of the misconceptions that muddle the West’s debate over Islam and free speech is the idea that people should be totally free to insult. Free speech is never that absolute. Even — or perhaps especially — in America, where citizens are protected by the First Amendment, there are certain words and opinions that no civilized person would utter, and others that open the speaker to civil charges.

There is some very muddled thinking going on here. First, no country declared war against Germany because Hitler was a racist, and World War II wasn't a result of Nazi party members reading Mein Kampf. War World II happened because Germany was trying to conquer Europe. If there were groups advocating a war against Germany on the basis of its fascism, they were unsuccessful: the concerns about Nazi ideology definitely took a backseat to concerns about Germany's territorial ambitions, and the suggestion that the war was waged because of the former plays some tricky games with history. Suggesting that those who believe in the Koran are like Nazis is hateful and horrible - but despite what Buruma says, it does not follow that "an all-out war against them would be justified." After all, there are organized neo-fascist and neo-Nazi parties in much of Western Europe, and there has been no military action taken against them. Wilders probably understands this distinction, which is why he has tried to hard to show that Islam necessarily entails violence. He is obviously wrong about that, which is why his opinion will stay on the fringe - but the argument that his likening of the Koran to Mein Kampf is an advocacy of "all-out war" is simply incorrect. 

Secondly, I'm not sure Buruma's interpretation of free-speech laws in the U.S. holds water. He says, "Even — or perhaps especially — in America, where citizens are protected by the First Amendment, there are certain words and opinions that no civilized person would utter, and others that open the speaker to civil charges." Again, this is a terribly muddled sentence. To simplify: in America, citizens have the right to free speech. However, (and this is what I interpret Buruma to mean), there are limits to this:

1. "Certain words and opinions that no civilized person would utter," and

2. "Others that open the speaker to civil charges."

It seems to me that the first type of speech is utterly irrelevant to Buruma's argument. Of course there are limits to what is socially acceptable, but that has nothing to do with what is legal. There are plenty of things that no "civilized" person would say that are said every day, often in mass media outlets. (Michael Savage, anyone?) So it's not clear if Buruma is suggesting that American free speech doesn't include insulting, uncivilized speech, but if he is, he's wrong, and if he isn't, the argument is irrelevant anyway.

When we're discussing the topic of prosecution, the second type of speech is the only type that matters: speech that opens the speaker to civil charges. Buruma says that criticism of religion should be allowed, but that Wilders' "likening the Koran to “Mein Kampf” would not seem to fall into that category." I think it would in the United States. Laws regarding political speech (as opposed to commerical speech) in the United States are very protective of speakers' rights. Attempts to incite "imminent lawless action" are not protected by US free-speech rights, but I don't think Wilders' words, however vile, fit that description. Nor do they amount to "fighting words," words that attempt to incite immediate breaches of the peace. Again, the key idea here is "immediacy," and I don't think Wilders' actions would have caused any legal problems in the United States - though he would certainly (and rightly) be condemned by the American public. 

The relevant case here is Brandenburg v. Ohio, in which the Supreme Court upheld the free speech rights of a Ku Klux Klan leader who had advocated "revengeance" against blacks and Jews and used racial slurs at a KKK rally. The leader had been fined and sentenced to prison for advocating violence, but the Court reversed that conviction and ruled that free speech could not be limited by advocacy of violence or lawlessness in the abstract

So, while "even in America" there are certain words that are not protected by freedom of speech, it is very doubtful that Wilders' bile meets that standard. Mr. Wilders is a hateful, sick-minded man who would destroy modern society if he ever got the chance. But it is a sign of modern society's strength that it allows him to spew such hateful things. It shows that we can reject his views without suppressing them - a distinction that would probably escape Wilders, who has advocated banning the Koran. Nonetheless, it is one that free societies should uphold, even when it's tough.

No comments: