Offensive Speech and the Danger of Granting the Heckler's Veto

Should diplomats denounce anti-Islamic films? That's a hard question. But seeing how the Obama Administration has erred is easy.

libya flag full.jpg

A trampled American flag lays on the ground at the U.S. consulate in Benghazi, Libya. (Reuters)

If a dozen French-Algerians gathered in Paris next year on Easter Sunday, erected side-by-side crucifixes painted red, white, and blue, flew a remote-control plane into them to evoke the 9/11 attacks, and afterward gave a press conference about how American Christians are filth who orchestrated the attack on the Twin Towers as a pretext for a Crusade-like campaign against Muslims, I wouldn't want the organizers of the protest arrested or charged with a crime. I wouldn't want them harassed by police either, being a partisan of free-speech rights, though I can't imagine that American conservatives would be bothered if French police questioned them.

(Am I wrong, conservatives?)

I myself wouldn't be bothered if the French Embassy in Washington, D.C., released a statement saying, "Although the right to free speech is inalienable, the insensitive jerks who conducted that anti-American protest on the Champ de Mars yesterday don't reflect the beliefs of the French government, or the vast majority of French people." Those conciliatory words would be accurate. It might still be a bad idea to release a statement like that. Once French diplomats establish the precedent that they render value judgments about the speech of French citizens, they might be pressured to do so in instances when the truth would not in fact prove conciliatory.

Diplomatic statements of regret are nevertheless compatible with free speech.

The anti-Islam film that has purportedly sparked riots in various Muslim countries brings these hypotheticals to mind. The guy who made the film has a legal and human right to put forth his message. American diplomats wouldn't violate it by saying, "That anti-Islam movie is messed up. In the U.S., where people are free to say whatever they want, that right is sometimes used by folks who say nasty things about Christians, Jews, minority groups, President Obama and his family, or in this case, Muslims. American law protects the rights of all those people, and we wouldn't want a leader so powerful that he could stop citizens from saying things he didn't like. The president, his colleagues in government, and countless Americans often vehemently disagree with what is said by American citizens, as they do in this case. Statements made about Muslims in that movie in no way reflect the official position of the United States."

Again, just because a statement is consistent with the First Amendment doesn't mean it should be issued. The words I've sketched out above are useful insofar as they are accurate, articulate American values, and conciliate in the fashion that diplomats understandably do in many situations.

The downside is the precedent they establish. The United States doesn't want to create the expectation that its diplomats are going to distance themselves from everything an American says that offends Muslims, or any other group; and there will be times when something that offends is in fact true. Perhaps it would be best if the U.S. government played a longer game, avoiding conciliatory statements even when the immediate cost-benefit analysis seems to recommend them, so that we can credibly say, in any instance, "Look, the U.S. government doesn't evaluate the words of its citizens, which has never implied that it agrees with their message."

Either of these approaches seems defensible to me, and had the Obama Administration contented itself with one of them I'd have been deferential in giving its members the benefit of the doubt.

But I think they've erred in two ways:

  1. They asked Google to look into whether the film violated YouTube's terms of service -- in other words, they inquired whether a private company would make it harder to find the film on the Internet.
  2. The FBI brought the filmmaker, who was on probation, into a police station for questioning, and began investigating whether he has done anything that would enable him to be rearrested and jailed for violating the terms of his probation.

In both instances, the Obama Administration acted within the law.

But they sent a terrible message.

To American communications firms, they sent the message that airing certain kinds of speech is going to attract the attention of federal officials, who'd rather they didn't. The message to citizens: Certain kinds of political speech, while protected by the First Amendment, will trigger federal investigations into whether there's any legal reason you can be arrested. And the message to illiberal Muslims: Speech offensive to you is protected by the First Amendment, but the United States government can totally lean on private companies to make them harder to access on the Internet, and investigate the speaker to see if he's broken any laws, so next time you're upset best to start demanding that those actions be taken. Those are foolish messages to send.

Along the same lines, Eugene Volokh explains why moderating America's relatively absolutist view of the First Amendment to avoid future explosions of violence would almost surely have the opposite effect (emphasis in original):

Say that the murders in Libya lead us to pass a law banning some kinds of speech that Muslims find offensive or blasphemous, or reinterpreting our First Amendment rules to make it possible to punish such speech under some existing law. What then will extremist Muslims see? They killed several Americans (maybe itself a plus from their view). In exchange, they've gotten America to submit to their will. And on top of that, they've gotten back at blasphemers, and deter future blasphemy. A triple victory. Would this (a) satisfy them that now America is trying to prevent blasphemy, so there's no reason to kill over the next offensive incident, or (b) make them want more such victories? My money would be on (b).

And this is especially so since there'll be plenty of other excuses for such killings in the future. It's not like Muslim extremists have a clearly defined, unvarying, and limited range of speech they are willing to kill over (e.g., desecrating Korans and nothing but). Past history has already proved that; consider the bombings and murders triggered by the publication of the Satanic Verses.... "Last time this happened, and our men killed four Americans, the Americans saw the light and decided to punish the blasphemers. They agreed that blasphemy must be suppressed -- and yet they now shamelessly refuse to act on their promises!" (I doubt that the mob will have much of a sense of the nuances of American legal doctrine, so it's a safe bet that they won't know that the hypothetical new law doesn't extend to "serious literature" or "genuine debate" or religious proselytizing; plus they might not view the Satanic Verses and the like as "serious literature" or "genuine debate.") "Maybe the Americans forgotten what happened last time -- but we haven't. Let's give them a taste of the same medicine that worked so well back then."

Now the people I'm describing of course won't include all Muslims, or most Muslims. But events over the past decades have shown that there are enough extremist Muslims (whatever their fraction of the Muslim population might be) who are willing to riot and murder in reaction to what they see as blasphemy. Obviously this is a large enough and dangerous enough subset of Muslims that some people are willing to try to forcibly suppress American speech in order to appease them. Will our accommodating these Muslim extremists diminish that impulse, or fuel it?

His whole post is worth reading.