Meeting Objections to the Danish Cartoons of Muhammed

By David L. McNaron

(I would like to thank the University of Central Florida Department of Philosophy, Office of Student Conduct and Student Rights and Responsibilities, and The Quality Enhancement Plan for Information Fluency for hosting the conference “Heresy, Blasphemy, and Freedom of Expression,” which provided the impetus for this paper; and the National Endowment for the Humanities Summer Seminar in Philosophy: “Political Obligation, Democratic Legitimacy, and Human Rights: Theoretical and Applied Issues,” directed by Andrew Altman and Christopher Heath Wellman, at Georgia State University, Summer 2005. That seminar provided invaluable preparation for this project. I am also indebted to Professors Darren Hibbs, Stephen Levitt, Chris Natticchia, and John Valentine for commenting on drafts of this essay. I have incorporated many of their suggestions into the text.)

 David L. McNaron, Nova Southeastern University

Liberalism should provide the devout with a reason for tolerance. Thomas Nagel1

It is impossible to live in peace with people whom one believes are damned.

Jean-Jacques Rousseau2

If there is one star in our Constitutional constellation…it is that no doctrine shall be considered orthodox or correct in politics….

California Supreme Court3

…religion must observe the principles of democracy, not the other way around. No religion can be permitted to legislate what can or cannot be drawn, any more than it can legislate what may or may not be eaten.

Ronald Dworkin4

Introduction

In this essay, I will attempt to refute objections, real and imagined, to the publication of the Danish cartoons of Muhammed. I hope to show that the cartoons fall squarely within the limits of allowable speech. Since the particulars of the objections concern me most, I will imbed theoretical points within the discussion of these. However, I intend to stray very widely beyond the cartoons into free speech issues. I will assume that a strong presumption in favor of freedom of expression should exist in liberal democratic countries. Although the main question is whether the cartoons fell within the boundaries of tolerable speech, I will also consider, in reference to certain objections, whether publishing the cartoons was morally wrong, since one can wrongly exercise one’s rights. Showing that something is wrong has bite, both for private conscience and in the court of public opinion. One who objects to speech need not face the choice between urging prohibition or remaining altogether silent about it.

The Danish cartoons raise no new philosophical issues, but this fact should not deter philosophers from writing about such cases. The issue is a variation on a theme: the limits of free speech. The cartoons join the list of controversial expressions that includes flag burning, cross burning, neo-Nazi marches, pornography, racist speech, protests in time of war, profane tee shirts and bumper stickers, etc., that test the policy of allowing all speech without reference to content. Objections familiar to philosophers (and lawyers) must be repeated time and again, if for no other reason than the sheer public importance of the issues—and the freedoms at stake. Such is the case with arguments for censorship based on offense. Though some of the arguments are weak, they are the ones that move people and they must be answered forcefully. Although newer and more sophisticated objections to speech have received much attention from scholars (and courts), there is still much more to be said about them. Defenses of speech must be tested against challenging situations in a changing climate of opinion.

Today western countries face a profound problem in the form of large immigrant populations, some of whom devoutly follow creeds fundamentally at odds with basic principles of liberal democracy. The questions whether these persons can coexist with others in pluralistic societies and what allowances, if any, should be made to their demands to restrict speech, are burning ones. The case of the Danish cartoons is a lightning rod to focus discussion on such large questions.

Offense

One objection to the cartoons states that they should not have been published because they offended Muslims. Offending others is wrong. Respect for others, and perhaps civility and courtesy, require that we not give offense when we can reasonably predict it will result. Obviously, no adequate liberty-limiting principle can be based on offense. Part of the meaning of a right to free speech is that one be allowed to speak in ways that offend others. Virtually everything offends someone. Some people are offended by hearing religious claims questioned; others by the flood of religious propaganda that issues from the pulpit, television, and radio every day. But neither group has a right to have the speech they oppose banned in a free society.

While one could agree that we should often observe the admonition not to offend, the genuine moral rule seems to be rather different; namely, that one should not offend others or hurt their feelings unnecessarily, without good reason. The injunction not to give offense must often yield to stronger concerns such as seeking truth, stating moral objections, or simply speaking one’s mind. Moreover, the relevant question is usually whether a remark or an accusation is true, not whether it offends per se: saying it is wrong because it is offensive puts the cart before the horse. Objecting to speech that offends independent of its truth is a tough sell. Truth, after all, is and ought to be a defense against libel. (I will not, for the most part, discuss nonverbal gestures that give offense, such as a Muslim man’s refusal to shake hands with a woman in her own non-Muslim country.)

Let us consider some possible counterexamples. What about the ubiquitous advertisements that depict women as confined to domestic roles as household engineers and product-conscious consumers? Aren’t these wrong because they are offensive to women? The wrongness would seem to reside in portraying women as having a lesser moral stature. In other words, if the image is offensive, it is offensive because it is immoral (i.e., it contains a moral falsehood), not the other way around. The wrongness of the ads, however, would make an insufficient case for censorship, as not all wrongful acts should be prohibited (e.g., lying, promise-breaking, revealing dark secrets of a friend, and cheating at games).

Consider the example of a billboard situated above a busy freeway that depicts a sex act. Is it too extreme to insist that everyone must endure seeing this offensive image for the sake of freedom of expression? If not, then why can we not make allowances for cartoons that cause religious offense? This example goes toward the usual restrictions on time, place, and manner of utterance, not on the content of speech. The main problem is that people are captive audiences to seeing it on public roadways. Furthermore, the sign exposes children, without warning or parental permission, to the image5. It is a public nuisance, much like solicitation of prostitution6, which, as H. L. A. Hart pointed out, can be banned without criminalizing prostitution itself on moral grounds.

Another example involves making disparaging remarks about, say, a disabled person. Such wrongful remarks are gratuitous. Even so, it is no violation of the person’s rights and not a fitting candidate for illegality. Again, “X is offensive” does not imply “X ought to be illegal” without the addition of a premise that makes offense a sufficient condition for restricting speech. Such a principle would have a chilling effect on speech and place great, perhaps tyrannical power in the hands of the majority or those whose standards of offensiveness prevail. As John Stuart Mill saw, mere offense cannot serve to restrain liberty. Someone may be offended by professions of atheism, or the very thought—let alone the sight of—people performing certain sex acts. Appealing to offense has become something of a mantra in our society. The cry of “We are offended” together with the demand for an apology has become standard rhetorical fare, even for those accused of wrongdoing. The reason is not hard to find: the charge shifts blame onto the accuser.7

Offense does not trump free speech. David Richards (who argues for replacing Mill’s harm principle with the deontic sovereignty principle) puts the point thus:

The principle of free speech, properly understood, discriminates among kinds of interests that may enjoy weight in the balance of political argument about free speech, and disentitles certain putative interests to any weight whatsoever. These include offense taken at the exercise of the right to conscience itself.8

In the case of Cohen v. California, a man was arrested in the L.A. County Courthouse during the Vietnam War for wearing a jacket emblazoned with the words “Fuck the draft.” The Court dismissed all the arguments based on categories of unprotected speech. These include, first, obscenity: the Selective Service is not the kind of thing with which one could have intercourse; second, fighting words: no one was personally assailed; and third, clear and present danger: Cohen did not incite others to violent action, nor did he breach the peace. Others could simply avert their gaze to avoid seeing the words. What he did was to offend someone (an overzealous police officer). The Court further reasoned that had Cohen used less offensive language he would not have expressed the same thought. Suppose the jacket’s message was this: “The Selective Service is an abomination and ought to be abolished.” The manner of expression, its emotive force, was necessary to express Cohen’s vehement dissent against the war. Viewpoint cannot be restricted under the First Amendment regardless of the offense caused to others; offense is the price we pay for the greater good of liberty. The emotive force of the Danish cartoons, pictorially presented, may have been necessary to express exactly the alarm and condemnation that the cartoonists felt. The principle that the state should refrain from restricting speech based on content is a plausible one for any country—not only the United States—that endorses state neutrality and wishes fully to protect freedom of expression.

But what is offense? I have been pretending all along that we know. I do not mean “offense” used as a noun, as when we speak of a criminal offense, or metaphorically of an offense against justice. I mean being offended by someone’s speech or behavior. Offense is not the same as anger, resentment, embarrassment, or emotional hurt, all of which are not only readily identifiable emotions but also reasonable responses to a variety of situations. If we were to define “offense” in terms of these other emotions, wherein would lie the special nature of offense? A subsidiary question is this: are these emotions causally produced or voluntarily chosen attitudes? Jean-Paul Sartre, famously, thinks the latter.9 We choose our emotions, he says, as ways of projecting ourselves and attempting magically to transform the world. We pretend to feel engulfed by emotions; this is a way of avoiding responsibility. But that seems problematic. I am made to feel grief over someone’s death; I am repulsed by the sight of filth; I am embarrassed if I have falsely accused someone. Is a person similarly caused to be offended?

Offense is not so easy to pin down, or to justify. As a start, offense, whatever it might be, seems to implicate sensibility rather than sense. That is, one is not offended by a sensory assault such as a loud noise or noxious odor. If I see a violet painted house, I am repelled by it but not offended. One is disturbed, annoyed, even angered by loud or obnoxious people, but not offended. Offense seems to involve an emotional response to an affront to one’s sensibilities. What things are said to offend people? Nudity, sex, attacks on one’s religion or politics, racial or ethnic slights, all come to mind. Is claiming to take offense a reasonable response to any of these? If religion is false, or free speech is a reasonable liberty, or sex is not wrong, then “offense” taken over these things is irrational. As for racial or ethnic remarks, are they true or are they false, intelligent or stupid? If they are true, then why take offense? If they are false, why is it not sufficient to refrain from assenting to these claims, expose them as errors, or simply ignore them? An array of emotional responses is available as well, ranging from anger, indignation, sadness and dismay, to finding the comments humorous in some perverse way. Where does the offense part come in? This much seems evident: when people claim to be offended, their sensibilities are rankled. But one is in control of this, however one may pretend otherwise (Sartre’s point may apply here). Couldn’t one change one’s sensibilities rather than attempt to make over the world and cleanse speech, to guard against being offended? This could represent a step toward self-perfection or purification. The shield against offense could be inner rather than outer. That would certainly be less obtrusive to others’ freedom. Why have such sensitive sensibilities?

If offense is rooted in irrationality, if it consists in being emotionally stirred over having one’s sensibilities shocked or one’s views contradicted, then offense is a vice. Some emotions, Aristotle notes, do not admit of a legitimate mean; they are, as their names suggest, bad in themselves (envy, for example). Begrudging a person his good fortune, wishing that it were one’s own instead, is bad, in whatever degree it is felt. It seems that one has to wear one’s emotions on one’s sleeves in order to be offended. One has to be naïve and presumptuous to have a stake in not hearing one’s views assailed. One has to be all puffed up in order to be susceptible to offense. If this is true, offense is not an emotion in good standing. Instead, it is a form of posturing that employs a stock, knee-jerk response. The offense-response was borne of what was once a reasonable campaign for linguistic reform to replace racist and sexist terms that has become part and parcel of the immoderate ideology of political correctness. “Offense” has become ensnared by ideology.

But maybe I have gone too far. What about offensive behavior—for example, being rude and drunk at a cocktail party—or offensive language—for example, using vulgar words in public? Can we never speak truly of such things? I recall what it is like to be offended. I was in Germany with a bilingual Canadian friend who summers there and we went to an outdoor restaurant with one of his German friends. The waiter, who had asked where we were from, remarked that Germans like to say Americans speak as if they had marbles in their mouths. I felt rather hurt by the remark—offended, perhaps? It was less than feeling incensed, but it stung. I was a little miffed. I (privately) took exception to it. I felt it was discourteous to say such a thing to a stranger and first- time visitor to one’s country (especially since the countries are former enemies), even if the claim, as I think it probable, is true.

Whether or not there is a real fact of the matter when it comes to discovering the nature of offense, two definitional strategies come to mind that could block some of my objections. One is stipulation: one could simply stipulate that by “offense” he or she means emotional hurt caused by a disparaging remark. Another is definition by a paradigm case. The hurt or indignation one feels at being called by some racial or ethnic epithet, for example, would constitute a prime case of offensiveness. We can approach new cases by analogy with the central ones. So perhaps there is a way adequately to define “offense” after all. Perhaps as well some genuine emotional residue remains beneath the fog of PC ideology, which has co-opted “offense” as a militant linguistic banner. But the offense committed by causing offense falls short of speech that “crosses the line”—that should fail to enjoy legal protection, unless one wants to enforce politeness. Politeness is a matter of manners, and even if manners, as Henry Sidgwick said, are mild morals, they are not of sufficient weight for prohibiting speech.

I conclude that arguments for restricting speech based on offense are defective since, among other things, the notion of offense itself is unclear and whatever sense we can attach to it indicates that the propensity for taking offense is often unjustified. In such cases calling for restricting liberty in the name of offense is sanctimonious—the offended of the world are dressing up a vice and parading it as a virtue. When the offense felt is more genuine—unmediated by ideology—it is morally insufficient to restrict speech.

Finally, the cartoons performed important functions that justified causing offense to some Muslims: they expressed moral condemnation and did so in a peaceful fashion. Condemning a threat to rights and freedoms from within protects the liberal ethical environment of Denmark. The cartoons testified that people in one of the most tolerant of countries have taken as much intimidation as they can stand and can no longer remain silent. This is a personal truth arrived at by individual reflection in a country that partakes of the culture of independence.10 The cartoons also raised a legitimate question in the aftermath of the attacks of September 11 and the rising tide of Muslim violence in Europe that includes the murder of Theo van Gogh in the Netherlands: namely, what is the connection between Islam and terrorism?

Insults

Suppose the objection is that the cartoons are wrong because they are insults and insults are wrong. One could go further and maintain that insults constitute provocation and are therefore speech that should not enjoy legal protection. Consider the following report from the Pope’s recent visit to Istanbul: “‘We’re here because the Pope has insulted our prophet and our religion,’ said one young Muslim activist, a woman who gave only her first name, Emine. ‘He is not welcome here unless he apologizes for the insult.’”11 This response is typical. Muslims recently made an unsuccessful bid to have a play by Voltaire cancelled in France: Fanaticism, or Mahomet the Prophet. One Muslim activist wrote in his letter of protest to the French mayor: “This play . . . constitutes an insult to the entire Muslim community.”12

There are a number of problems with the charge of insult. The objection seems to treat all criticisms of Islamic practices as gratuitous insults. But more plausible classifications of disapproving speech, artistic or otherwise, abound, including satire, ridicule, sarcasm, barbed responses about matters of public concern, or expressions of personal convictions. Moreover, the insulted bear partial responsibility for constituting the insult. Like dancing, it takes two to insult. To see this, consider failed insults. Suppose someone raises his little finger in an attempt to make an obscene gesture. His intention was present but did not suffice to make an insult. Or you raise your index finger to order a beer in a country that regards this as an insulting gesture. Or suppose an Arab shows you the bottoms of his feet in an attempt to insult you. But you see this all the time; he cannot insult you—you are unfazed, beyond the pale of the insult. In such cases as these, either the intention to insult is present but the attempt fails, or the intention is absent and the “insulted” party wrongly perceives the gesture. Again, one must be overly sensitive, I want to say thin-skinned, to participate in most acts of insult. Being especially vulnerable to insults is the person’s own fault.

A different sort of example involving participation in insults concerns school mascots. American sports teams have an affinity for choosing mascots of beings we have decimated, for example, Native Americans and various wild animal species. Calls have gone out to replace the mascots of, among others, the Florida State University Seminoles, the Cleveland Indians (which have a particularly obnoxious emblem), the Washington Redskins, and the Atlanta Braves. Native American opinion is divided. Spokespersons for some tribes have objected to replacing the mascots, which they as well as team supporters interpret as expressions of veneration. In one survey, a strong majority of Native Americans was not insulted or offended.13 The point is that the mascots’ images and names are not stand-alone insults; they require interpretation.

Or suppose one knew all the sociology of insult-practices the world over: one constantly sees people performing act tokens identical to those of the insulting gestures outside their cultural contexts. Would one thereby be insulted by those who did not intend it?14

Perceiving the speaker’s reciprocal intention that one should understand the remark as an insult is a necessary condition for a direct insult. What good is an insult unnoticed as such? Think of the kinds of remarks a football lineman makes to the player opposing him across the line of scrimmage. Indirect insults lack this intentionality: they are said to “go over someone’s head.” That is, they go unnoticed by the butt of the insult and are usually made for the benefit of some third party. Though the intent of the cartoons is not transparent,15 the specific intention gratuitously to insult was not clearly present. For the cartoons to count as insults they would have to be direct; after all they were published for all to see and were directed at Muslims. Yet they were not conspicuously intended to be perceived as insults.16 Hence, one is not justified in regarding them as insults.

Even if the cartoons’ form of ridicule does insult, it falls well short of incitement. After all, are the insults of Don Rickles or Triumph the Insult Comic Dog really the same as inciting a riot or instigating a fight (more on incitement and fighting words below)? Lenny Bruce offended and rankled people without posing a clear and present danger—as did Socrates, though some upright Athenians thought otherwise. Notice also that the cartoons are disanalogous to racial insults, which one may be tempted to disallow, in that race is an involuntary characteristic of a person (more on hate speech below). One could reply that belief is involuntary, a point used against pragmatic justifications of religious belief (such as Pascal’s Wager) that appeal to prudential reasons for believing in God’s existence. Though probably not the best objection to such arguments,17 this reply plausibly maintains that one cannot decide to believe that something is true based on self-interest. But if religious beliefs were involuntary, it would make no sense to discuss their truth or attempt to convert others to them. While people can be stubborn in their religious views, these beliefs are acquired and they can be discarded, but you cannot argue someone out of his or her race. Also, the reply equivocates on the word “belief,” between the formation of belief, which may very well be involuntary, and the content of belief. No belief by virtue of its content is involuntarily held, unless it is innate.

However, there is a relevant question here about the manner in which religious beliefs are acquired: whether critically through a process of study, or uncritically, through rigid conditioning that bypasses rationality. In the latter case belief may seem to have a fixed character and form part of what a person is. Regarding one’s beliefs in such a fashion would seem to constitute what Sartre called bad faith (mauvaise foi).18

The kernel of truth in the involuntariness reply finds its application here. The issue has more to do with the inculcation of religious doctrine, particularly Islam in the now infamous madrassas that propagandize young Muslims and turn many into actual or would-be suicide bombers, aka “martyrs.” This raises the question whether Islamic leaders wish their people to believe out of choice, because they have found Islam’s doctrines appealing based on investigation that allows for doubts, or to form their beliefs uncritically.19 (This indoctrination forms the psychological conditions that give rise to instances of insult and offense. Having many such persons in our midst exacerbates tensions over freedom of expression.) The question remains whether this problem is inherent to Islam itself, or only radical interpretations of that religion. A recent book on the Muslim treatment of women closes with these words: “Radical Muslims should recall the words of the prophet: ‘There is no compulsion in Islam.’”20

Among kinds of insults, let us designate direct and indirect, gratuitous, and commentary insults. The Campari ad that was the subject of a libel action by the Reverent Jerry Falwell in Hustler Magazine Inc. v. Falwell21 was a commentary insult, in the form of satirical ridicule. It depicted “Falwell” talking about his “first time” with his mother in an outhouse. The ad, though vulgar and insulting, made a point: it upset Falwell from his self-righteous posture as arbiter of morality and thus had cognitive content. Its allegation was figurative. Recalling Mill’s defense of speech, there may have been some truth in the ad. The Court held in favor of Hustler, which ran the ad, protecting its offensive satirical speech about a public figure. Alexander Pope called satire a “sacred weapon left for truth’s defense / Sole dread of folly, vice, and insolence.”22 The cartoons, whose publishers also prevailed in a libel suit brought by Danish Muslims,23 similarly used satire to accuse Islam of sponsoring violence and intolerance.24

It seems most reasonable to regard the cartoons as serious criticisms of the excesses of Islam rather than as insults directed toward an individual or even at Muslims per se except inasmuch as they exemplify the fanatical stereotype. That is quite different from insults, which make fun of, disparage, provoke, or impugn honor. And the response of many Muslims to the cartoons— widespread rioting, murder, burnings in effigy, vandalism, and expressions of outrage—did little to disprove the cartoons’ allegations.

The insult-objection amounts to an ethical category mistake of sorts, not unlike the Reagan administration’s Baby Doe Rules, which misclassified decisions to allow hopelessly defective newborns to die as discrimination against the handicapped.25 But even if the cartoons were insults, sometimes an insult is justified, especially after a train of abuses and repeated failed attempts at rational persuasion.26 Like the Socratic elenchus, a satiric insult can sting the sleeping into wakefulness, or the satire can elevate attention to an urgent problem and galvanize opposition to a threat.

Finally, there is the question of how one ought to respond to an insult. Two paths, both infinitely superior to outrage and libel action, come to mind. First, the cartoons presented an opportunity for Muslims to meet speech with speech. Rather than calling for censorship or censure they could have refuted caricatures of their religion and set the world straight about its true character. This path has proved most effective against campus hate speech.27 This response, rather than calling for restriction, actually reduces unwanted speech. Second, the famous episode of Jesus of Nazareth’s counsel to turn the other cheek is instructive. Jesus said that if someone strikes you on the left cheek to turn to him your right one also. This is not a profession of pacifism. Since most people are right-handed, a person who strikes one’s left cheek does so with the back of her hand. This is an insult, not an attack. Jesus therefore advises people to refrain from returning an insult, not to forego defending oneself.28 This seems like sound advice; better to be a peacemaker. By remaining at the ready to respond rashly to the insult, one’s responses are under the control of others; one also thereby escalates the hostility.

Harm

Muslims could claim their strong offense or emotional hurt amounts to harm. They believe their religion forbids making images of the Prophet and the cartoons strike at their deep sense of religious identity. Mill left the door open to such objections, which seem in principle compatible with his harm principle. Mill regarded harm to others as the only legitimate ground for restricting liberty. The underlying problem is how to define “harm,” whether narrowly or broadly. A narrow definition restricts harm only to prevent physical injury. But this affords protection to behavior that causes serious psychological harm, such as harassment and stalking, which are good candidates for restriction. Notice that these harms are non-ideological in nature; anyone, independent of his or her moral or theological outlook, could agree that these behaviors should be prohibited. But the cartoons did not cause secular (viewpoint-neutral) harm since reference must be made to religious doctrine.

In Schenck v. United States and Whitney v. California, the Supreme Court laid the foundation for interpreting the First Amendment and identifying the main category of unprotected speech: “clear and present danger.” In Chaplinsky v. New Hampshire the Court added “fighting words”: those “epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” The tendency to provoke immediate violence, rather than the content of speech, makes such a class of utterances a reasonable exception to free speech. As Richards notes, this standard was anticipated early on:

Madison’s criterion for the abridgment of freedom of speech is the same as Jefferson’s criterion for the abridgment of religious liberty: speech may be abridged only “when principles break out into overt acts” inflicting secular harms (a criterion anticipating the highly demanding contemporary requirements for satisfaction of the “clear and present danger” test, namely, the danger of some imminent, nonrebuttable, and very grave secular harm).29

As Dworkin points out, the distinction between “overt acts” and “speech” will not withstand analysis. Fighting words are unprotected because of their propensity to cause imminent violence. In this narrow class of cases, speech simply gives way to other values such as physical security.30 In Texas v. Johnson the Court, albeit with vigorous dissent, protected flag burning as a form of protest despite the possibly violent reactions of others, reasoning that freedom of expression should not be held hostage by the unwillingness of some people to restrain themselves. Is this consistent policy? I believe so. If Muslims regarded the cartoons as desecration, then the cartoons case resembles Texas v. Johnson, and the same argument for protecting the speech applies.31

We should take notice of the fact that the reasonable judicial standards in Schenck and Chaplinsky were absurdly applied to the cases before the Court. One might think, from the phrase “clear and present danger” and Chief Justice Holmes’s supporting example of falsely shouting “Fire!” in a crowded theatre, that Schenck must have stampeded a crowd; or from the expression “fighting words” that Chaplinsky instigated a fight by uttering a vulgar directive. But Schenck mailed pamphlets urging his fellow citizens to refuse military service in the Great War. Chaplinsky called the mayor a damned racketeer and a fascist. It took a later case, Whitney v. California, for the Court to narrow the “clear and present danger” rule from Schenck to include incitement and exclude advocacy of ideas. This provides ample reason for limiting restrictions on speech to a narrow category of harms or violations of rights, because what was plainly seen in hindsight as advocacy was once thought shortsightedly to fall within the purview of the judicial standard.

The cartoons largely escaped notice in Denmark at the time of publication. Certain Danish clerics agitated for a boycott of Denmark to mullahs in foreign countries. If there was a clear and present danger, it came from without: the incitement had a 4000-mile fuse. It should be noted that this attempt at extraterritorial control of press is unprecedented. In World War II, neutral and even some occupied countries, including Denmark, enjoyed a surprising degree of press freedom and published negative statements about the Nazis without direct reprisal.32

Hate Speech and the Speech Act Wrong of “Subordination”

A family of terms has found its way into disputes over certain kinds of controversial expression. Attempts have been made to restrict speech that “subordinates,” “denigrates,” “debases,” “stigmatizes,” “demeans,” “degrades,” “victimizes,” and the like.33 Although these words have their home in campus speech codes and certain forms of pornography legislation, it is conceivable they could be employed to condemn the cartoons. This is because these words target speech and images that disparage people on the basis of ethnicity, race, religion, gender, or sexual orientation. Some lawyers, activists, and philosophers have advocated parting ways with First Amendment doctrine. They would remove protection from some forms of speech based on the speech’s viewpoint.

Let us consider the best of these arguments: Andrew Altman’s34 case for limited campus speech codes that violate liberal viewpoint-neutrality to prohibit the wrong caused by “the illocutionary speech act of subordination” when terms that express visceral hate are spoken directly, with bad intent, to particular persons.35 Although he has in mind the utterance of racial and ethnic slurs, terms with potent emotive force, arguments could be spun from the same cloth in favor of more sweeping prohibitions, possibly against publication of the cartoons, which is certainly not Altman’s purpose. The reasons for this are three: first, the inherent vagueness of terms such as “subordinate”; second, the potential for justifying reasons that underlie violating viewpoint- neutrality to overreach, and third, shifts in who holds power (more on this below). A number of speech codes and laws utilizing these terms have been struck down by the courts for reasons of vagueness and over-breadth, including the narrowly drawn codes of which Altman approves, namely, Stanford University’s (Corry v. Stanford University). Judge Easterbrook even went so far as to accuse the Indianapolis pornography ordinance, which forbade “degrading” images of women and was sponsored by radical feminist Catherine MacKinnon (American Booksellers v. Hudnut), of thought control. I hope to defend the Court’s view that the use of such terms in law is improper.36

More to our point: do symbolic speech acts have illocutionary force? Examples include burning an American flag in protest (Texas v. Johnson), displaying the swastika while marching through Jewish neighborhoods (Nationalist Party of America v. Village of Skokie37), and cross burnings (Virginia v. Black38). While Skokie’s symbolic hate speech did not address particular persons, did it perform an expressive act of subordination? One could argue that its illocutionary force was to do just that, by stating, in effect: “You Jews are inferior. You deserve to die.” Consider further Virginia v. Black, which involved a pair of incidents that also put the Court’s protection of viewpoint- neutrality to the test. The Court distinguished between a threat and hate speech per se (an expression of a view). It upheld Virginia’s hate crimes law only as it applied to a threat, which might be made in innumerable other ways, stemming from burning a cross on a black family’s lawn, and did so based on the historical association between cross-burning and threats of violence. But it reversed the conviction of a man who burned a cross on private property with the permission of the owner. The Court held that the latter incident did not in itself constitute a threat, regardless of the history. To apply Austinian terminology, the act of burning a cross on a black family’s lawn performed the illocutionary speech act of issuing a threat. But did the cross burning on private property, even though it did not constitute a threat, count as an act of subordination?

How would Altman’s rule adjudicate such nuanced cases? Easy: neither the march nor the cross burning on private property involved direct address. But the aspect of threat captures the case of direct address without invoking the vague “subordination” and without violating viewpoint- neutrality. Moreover, one could hold, as did critics of allowing the neo-Nazi march, that an entire community was addressed by the hate speech, especially since a Jewish neighborhood was chosen. What if the cross burning had taken place in a public place in a predominantly black neighborhood? Advocates of restricting hate speech might reason as follows: since preventing subordinating expression is of such vital importance for the protection of moral equality as to justify violating viewpoint-neutrality, why insist on direct address? After all, on Altman’s view it is the subordination (a wrong), not the causing of distress (a harm), that justifies prohibition. Why does direct address alone constitute subordination? Once we cross the line and restrict speech based on viewpoint, wider application for similar justifying reasons becomes possible.

The cross-burning rulings proved no victory for defenders of hate crimes laws that violate viewpoint-neutrality: the government did not get to decide on the wrongness of beliefs. Consider the remarks of law professor Eugene Volokh in his article “Burning to Say Something”:

[The Court’s ruling] doesn’t clearly dispose of these issues—but it does reinforce the principle that First Amendment cases must be decided without regard for the speaker’s ideology. Even racist speech isn’t subject to any extra restriction; likewise, even pro-civil- rights speech can get no extra protection, either. That may be good news for those who, like the Nuremberg Files defendants, want to rely on the strongly speech-protective Claiborne decision. Their political cause may be less appealing to many Justices than the civil rights cause involved in Claiborne. But the Court has again affirmed that the law treats speech without regard to the cause that the speech espouses.39

Direct hate speech of certain types can be handled by existing categories of unprotected speech— incitement, fighting words, or threats—based on their likely effects, without the need for violating viewpoint-neutrality.

A number of other problems attend Altman’s argument. How can it be known when slurs are intended to subordinate on the basis of attributes such as race, ethnicity, or sexual orientation per se, rather than to put someone down for his or her behavior or appearance? Altman exempts “transvalued” use of terms such as “queer” and “nigger” by gays and blacks. Leave aside the point that legitimizing such language sets up a double standard that will more likely exacerbate than defuse hostility. Suppose some members of once victimized groups go further and deliberately exemplify a stereotype in their behavior or appearance. This—and not the person’s racial, ethnic, sexual- oriented, etc., group membership per se—may occasion slurs that seem to subordinate on the basis of group membership alone. My point is not to justify the use of slurs and epithets; rather, it is to show that Altman’s assumptions about intent are underdetermined by the linguistic evidence. The epithet user may mean or intend his or her remark thus: “You are an X because you exemplify behavioral traits Y associated with being a stereotypical X.” This statement does not imply the claim “All members of your (racially, sexually-oriented, etc.) designated group Z possess Y.” In short, Altman makes unwarranted assumptions about what it is that all hate speakers hate. Under Altman’s understanding of, for example, racism—believing others to have a lesser moral status because of nothing more than their racial membership or skin color—it is questionable that many people anymore will turn out to be racists. Altman makes a similar point about believing people are morally inferior based on their appearance (e.g., obesity): that few, if any, actually believe that. This is not to say that some people are not genuine racists, bigots, or homophobes: some people clearly do condemn others based on homosexual behavior and racial, ethnic, or religious membership alone.

Terms such as “subordinate” can hardly be used without scare quotes, so problematic are they. How is one to apply them? Consider borderline slurs. Would Altman’s injunction prohibit Jews from addressing non-Jews as goyim? Since this term refers to all non-Jews in a less than flattering way, a “Gentile” hearer might infer that use of the term is demeaning, stating, in effect: “You are other. Your interests matter less than those of my people.” How can we tell whether calling someone goyim performs the illocutionary speech act of subordination? What about the Italian slang word for blacks, mulignan (eggplant); suppose someone used this and the hearer, a black person, didn’t understand its meaning (or did)? What about schwartza? By what criteria can we decide whether such Yiddish or Italian expressions have strong enough emotive force to meet Altman’s test for legitimate restriction? If the person’s reaction is the test, then the limits of free speech are fixed by the highly variable effects of words on hearers. This provides no stable standard.

Now, “subordinate,” as applied to illocutionary speech acts, cannot be a success verb like “refute.” The illocutionary speech act succeeds or not by virtue of its perlocutionary force: presumably if it makes the person feel put in his or her place. How likely are epithets to succeed in their perlocutionary ambitions? They could not succeed in causing someone to have lesser moral worth—that is, if all persons have inherent and equal moral value. So the slur always amounts to an unsuccessful attempt, like attempted murder. It seems, then, rather odd that this type of rule prohibits only attempted, that is failed, subordination. One could reply, first, that the attempt itself is wrong. Second, the linguistic environment—especially the collective use of metaphorical terms of identification40—can help to sustain the moral wrong of discrimination, the violation of equal moral worth. But what if discriminatory practices have all but halted? The speech act, as we have seen, cannot succeed by itself; it is only a linguistic wrongful helper.

Another move is to bring in the first John Austin to support the second. In Austin’s positivist analysis of laws as commands, a necessary condition of a command is that it issue from a superior to a subordinate. Thus, I could perform the locutionary act of uttering “Give me a raise” to my boss, but because of my position relative to his my utterance could not constitute the illocutionary act of issuing a command, though it may, in some distant possible world, accomplish the perlocutionary act of getting him to give me the raise. Now, various groups’ relative positions of power and subordination, or histories thereof, could come into play with respect to epithets. Spike Lee in response to a charge of racism once said that only a white person could be a racist.41 Perhaps then, a necessary condition of performing the illocutionary speech act of subordination is that the speaker be a member of a group that once oppressed the hearer’s group. One could now handle the example of a Jew calling a Gentile goyim. This would fail to count as an illocutionary speech act of subordination since Jews never subordinated Gentiles.

While these considerations may help to supplement Altman’s analysis, a new problem arises: applying points about groups’ power relations and speakers’ intent would require complicated historical, linguistic, and psychological inquiries on the part of courts (or disciplinary committees) that would be subject to lawyers’ manipulated versions. My point here is directed against the application of Altman’s standard rather than the standard itself. But this is a crucial matter since law requires predictability and stability. And how long does a historical relationship continue to explain, condemn, justify, or excuse? What if a role reversal has taken place and the formerly disadvantaged group now enjoys more power and advantage than its historical oppressor does? Further: is the use of transvalued epithets, once it has taken hold, always performed for the subversive intention that Altman suggests, or does it at some point proceed merely from habit and group norms? Consider young blacks’ use of “nigger,” an altogether common practice noticed by subway riders in large U.S. cities. Power relations among groups, problems of complex intent, and subtleties of linguistic usage form a sticky wicket for framing and enforcing rules that would ban speech based on viewpoint.

Finally, let us not forget that calls for restricting speech come from both the Right and the Left. Once the door is opened, a host of vague terms comes in: “uncivil,” “inappropriate,” “subversive,” “un-American,” as well as “subordinate” and its ilk.42 The use of offensive language is variegated, and the terms targeting speech are themselves incapable of clear and precise definition and application. Altman could reply that only when such intent to denigrate on account of race, etc., is present does the case meet his conditions. But now we are truly wasting time “drawing tenuous distinctions and testing boundaries”43 when other responses to unwanted speech would prove more fruitful.

The Danish cartoons were not verbal slurs addressed to individuals. But were Danish Muslims, who felt aggrieved enough to launch a libel suit, subordinated or demeaned by the symbolic speech act performed by the published cartoons? Or were they merely offended, insulted, or stigmatized?

Stanley Fish’s Attack on Free Speech

Stanley Fish in numerous writings and interviews has produced provocative attacks on First Amendment absolutism. The most influential is the article entitled “There’s No such Thing as Free Speech, and that’s a Good Thing, too,” from the anthology, Debating PC.44 Fish defends campus speech codes and hate crimes laws, and wrote an op-ed in The New York Times defending Muslim students who protested my university’s choice of Salman Rushdie as commencement speaker in 2006.45 Fish maintains that “free speech” is a misnomer since occasions on which speech typically occurs are not “weightless”; they involve constraints and interests. Principles such as the First Amendment are illusory, since they are either vacuous abstract generalizations or else smokescreens concealing an agenda about particular cases. Fish begins the article by citing Milton, who argued passionately for free speech in the Areopagitica only to exclude the speech of papists, almost as if it went without saying, on grounds their speech undermines the legitimate purpose of speech. For Fish, this is no anomaly: any conception of free speech admits an open-ended class of exceptions of unprotected speech that undermines such values.

Dworkin criticizes Fish for considering only extrinsic-value defenses of free speech: these alone set up purposes such as furthering public debate or the search for truth that retrograde speech fails to promote. Fish does, though, try to reduce defenses of the intrinsic value of free speech to absurdity. How, he asks, could the mere utterances, divorced from purpose, be intrinsically valuable? Dworkin defends the constitutive value of free speech, independent of its content, for the exercise of moral responsibility; that is, speaking one’s thoughts and deciding for oneself is necessary if one is to live as a full moral agent.46 This is important regardless of various extrinsic purposes that speech might serve.

It is true to say that free speech doesn’t exist only in the innocuous sense that freedom of expression admits of exceptions. Fish saddles his opponent with holding the First Amendment as exceptionless. How more reasonable then is his position, which denies the meaningfulness of principles altogether? Notice that Fish’s argument is self-refuting: he has erected a principle that states the meaninglessness of principles. His main argument, though, is essentially this: free speech would have to be absolute; but there are exceptions to free speech; hence, free speech does not exist. But the example from Milton invokes the content of speech and is thus relevantly dissimilar from speech that poses a factual clear and present danger. Fish uses exceptions to free speech as a wedge to open the door to limiting speech that we are better off without, especially speech that offends or disparages on the basis of race, gender, religion, etc. Would he then be willing to limit Muslims’ speech if it offends others? He would not.

It goes without saying that moral principles have exceptions, even the absolute-sounding First Amendment. Suppose that by uttering the word “artichoke” one would trigger a nuclear holocaust. Certainly, the authorities would be justified in issuing a prior restraint against uttering “artichoke.” But it hardly follows that there is no presumption in favor of speech, or that any time speech serves a purpose inimical to valuable purposes that suppressing it is justified. So, recognized thoughtful exceptions to the First Amendment provide no opening for Fish-type objections. Fish replies to charges of Muslims’ hypocrisy over the cartoons as follows:

One of those arguments goes this way. It is hypocritical for Muslims to protest cartoons caricaturing Muhammad when cartoons vilifying the symbols of Christianity and Judaism are found everywhere in the media of many Arab countries. After all, what’s the difference? The difference is that those who draw and publish such cartoons in Arab countries believe in their content; they believe that Jews and Christians follow false religions and are proper objects of hatred and obloquy.

But I would bet that the editors who have run the cartoons do not believe that Muslims are evil infidels who must either be converted or vanquished. They do not publish the offending cartoons in an effort to further some religious or political vision; they do it gratuitously, almost accidentally. Concerned only to stand up for an abstract principle—free speech—they seize on whatever content happens to come their way and use it as an example of what the principle should be protecting. The fact that for others the content may be life itself is beside their point.

This is itself a morality—the morality of a withdrawal from morality in any strong, insistent form. It is certainly different from the morality of those for whom the Danish cartoons are blasphemy and monstrously evil. And the difference, I think, is to the credit of the Muslim protesters and to the discredit of the liberal editors.

The argument from reciprocity—you do it to us, so how can you complain if we do it to you?—will have force only if the moral equivalence of “us” and “you” is presupposed. But the relativizing of ideologies and religions belongs to the liberal theology, and would hardly be persuasive to a Muslim.47

The price of issuing such a blank check for Muslims is to infantilize them, to rob them of responsibility for their actions. Muslims as a result would be subject to Mill’s exemptions from the liberty protected by the harm principle, which include children, mental defectives, and members of civilizations as yet “in their nonage.”48 (For Mill, paternalism for such persons was justified since they do not know their own interests best.) Furthermore, here we see, amazing at this late date, the resurrection of the Romantic anti-Enlightenment attitude of a Thomas Carlyle49 who looked nostalgically on the Middle Ages and prized unwavering conviction over a critical attitude. Fish’s remarks invite retort from these lines of Yeats’s poem, “The Second Coming”: “The best lack all conviction, while the worst / Are full of passionate intensity.”50

Fish joins right-wing critics in speaking of a so-called “liberal theology”—aka the so-called “religion” of secular humanism. He repeats Sam Harris’s51 charge of hypocrisy against religious moderates, though not with the same intent as Harris. If you really believed the claims made in the various scriptures about the nature and gravity of sinful deeds and attitudes, you would be justified in inflicting the punishments prescribed therein.52 So Harris lays the blame with religion itself as a species of unjustified belief that motivates violence. Unlike Fish, Harris argues that this state of affairs provides all the more reason to inveigh against religious belief itself.

Fish also charges what Rawls feared: that liberalism amounts to no more than another comprehensive (moral, political, religious, or philosophical) doctrine.53 But it isn’t, exactly. Political liberalism attempts to swing free of comprehensive doctrines, and includes what Thomas Nagel54 calls a high-order principle of impartiality that demands that people restrain themselves when calling upon the state to enforce certain of their deeply held convictions. After all, one would wish for others to do the same. As Dworkin points out, this warning to exercise caution in visiting one’s beliefs upon others lest others should do the same goes back to Voltaire.55 Once the door is opened to restricting speech based on content, others who come to power can do so as well.

Fish decries liberalism’s creed as lukewarm. But it is certain comprehensive doctrines— secular as well as religious ideologies—that gave us the great evils of world war, genocide, and massive repression. But one can be passionate about liberal rights and freedoms, and defend them with courage and ingenuity, as the Danes did in resisting the anti-Jewish measures the Nazis sought to impose in 1943.56 One can do many things under a liberal state: grow flowers, brew beer, paint landscapes, compose symphonies, do physics and philosophy, love, and even worship. Liberalism’s minimalist public principles, in short, allow for the widest expanse of liberty possible.

Legal Inconsistency

Another objection to the cartoons alleges inconsistency of laws in some Western countries; for example, English laws forbidding blasphemy against Christianity and Holocaust-denial laws in seven European countries. To begin with, blasphemy laws are rarely enforced, so it is hardly accurate to say religious discrimination is taking place in practice (mosques abound in these countries). Denial laws could be justified as a legitimate exception to free speech, especially in Germany with its dark past: at least these laws are grounded in historical experience. But the cleanest response is to advocate repealing blasphemy and denial laws: this gives the critic who alleges partiality no leg to stand on. Allowing full freedom of speech based on content makes for consistent policy.

The charge of inconsistency backfires. Western countries are far more tolerant of Muslims than Muslim countries (or many Muslims) are of non-Muslims; and this is the import of some of the Pope’s recent remarks, which also aroused great hostility from Muslims.57 Would Muslims accept criticisms of Islamic countries’ treatment of non-Muslims? Saudi Arabia is closed to tourists; Mecca is off limits to non-Muslims; public display and worship of non-Muslim faiths is prohibited. In many Muslim countries, Bibles are not allowed and Christians are being forced out.

Demands, therefore, for greater sensitivity to Muslim concerns amount to special pleading and bad faith. Such demands are inconsistent and constitute a failure of impartiality (that is, equal consideration for the like interests of others). “Never insult anyone’s religion” is not the radical Muslim’s maxim; “Never insult Islam” is. One must come to equity court, as it were, with clean hands.58

Conclusions

Tolerance cannot be elevated to an ultimate principle; it would then tolerate intolerance, which would destroy tolerance. Radical Muslims acting under the guise of righteous indignation are perpetrating an atmosphere of intimidation in various non-Muslim countries.59 To compromise free speech, as Britain has recently done60 in the aftermath of the furor over the cartoons, seems painfully close to appeasement, a term Lord Chamberlain made infamous in his dealings with Hitler. If such a move were generally accepted then an illiberal group would have succeeded in gaining veto power over speech in liberal countries. With the coming of “multicultural” societies that lack clear majorities that agree on basic political principles, we could see the emergence of a new political paradigm to match the social reality: the advent of “mutually tolerant minorities,” to borrow, for a different purpose, Hart’s prescient term from the late fifties.61 Perhaps these minorities will “respect”—fail to question or criticize?—one another’s irrational religions and worldviews. In other words, rights to speech and inquiry will be weakened for the sake of social harmony. Enlightenment values are at stake here, as the attempt at silencing Voltaire, the Enlightenment’s leading prophet, strongly and symbolically testifies.

The effort to arrive at what Rawls calls an “overlapping consensus”62 to ensure stability for the principles of justice accepted by all parties should not be used for, or confused with, any effort to reduce free speech rights to accommodate groups’ claims of offense. If that were to happen, the culture of independence would have been compromised in favor of its rival: the culture of conformity, which diminishes the value of personally arrived-at moral truths. One could object that I have offered up a false dilemma: other Western countries do not protect controversial speech nearly as strongly as the U.S. But skepticism and timidity over free speech are unjustified—adhering to something like the First Amendment is necessary to express fully the constitutive value of free speech.

It may be true that political liberalism embodies some conception of the good.63 And the liberal state certainly allows many activities that diminish the ethical environment of conservative people. But while there is no such thing as total state neutrality, that’s not a bad thing, either. Liberalism is compatible with people living conventional lives based on received opinions—they need not carry out bold Millian experiments in living. They are free to pursue and espouse their visions, so long as they allow others to do the same. As Dworkin puts it, “Censorship will always prove a traitor to justice.”64

 

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  1. Thomas Nagel, “Moral Conflicts and Political Legitimacy,” reprinted in Morality, Harm, and the Law, Gerald Dworkin, ed., (Boulder: Westview, 1994), 71.
  2. Jean-Jacques Rousseau, On the Social Contract, ed. Roger D. Masters, trans. Judith R. Masters (New York: St. Martin’s, 1978), Chapter VIII, 457.
  3. Cohen v. California 403 US 15 (1971).
  4. Ronald Dworkin, “The Right to Ridicule,” The New York Review of Books (23 March 2006), vol. 53, Issue 5, 44.
  5. I thank my colleague Darren Hibbs for this point.
  6. See H. L. A. Hart on this point in his discussion of the Wolfendon Committee’s Report of the Committee on Homosexual Offences and Prostitution in Great Britain in Law, Liberty, and Morality (New York: Vintage, 1963), 13.
  7. This tactic provides an instance of what Nietzsche apparently thought was the general function of all normative moral discourse (at least of the slave morality variety): surreptitiously to gain power over one’s opponent. One can see the blame industry at work employing this strategy particularly in the United States when it comes to expression that offends members of some groups. The most recent example involves reactions to a racial remark made by radio/TV personality Don Imus about the women’s basketball team at Rutgers University. Predictably, Jesse Jackson and Al Sharpton stepped forward as the self-appointed spokesmen for the black community calling for Imus’s ouster. It is tempting to see such moral rhetoric as posturing and self-elevation. One can picture a climber raising himself up by stepping on his opponent as though he were the rung of a ladder. But nothing like the hue and cry for Imus’s dismissal went up for the removal of Mike Nifong, the DA who railroaded the three innocent Duke University lacrosse players over the course of more than a year toward convictions that carried thirty year sentences. A press conference held on April 13, 2007, announcing the intervention of the Attorney General of the state of North Carolina to halt the prosecution occurred in the midst of the Imus debacle, but it received nowhere near the same attention in the press. This pair of incidents demonstrates, first, the lack of proportionality between the moral gravity of incidents and the amount of offense taken; and, second, the extent to which proliferation of an atmosphere of “offendedness” fosters perversions of moral thinking and miscarriages of justice. Offense, then, is a morally unreliable guide to regulating speech. I should note that the Rutgers’ athletes themselves, though hurt, showed none of the tutored rhetorical posturing mentioned above. I do not know whether to classify their response as expressions of offense. They were keen to point out that Imus didn’t even know them, and that their pride over their accomplishment was dimmed by his slight.
  8. David A. J. Richards, “Toleration and Free Speech,” Philosophy and Public Affairs, Vol. 34, No. 3. (Autumn 1988), 335. The italics are mine.
  9. See Jean-Paul Sartre, The Emotions: Outline of a Theory, trans. Bernard Frechtman (New York: Philosophical Library, 1948), esp. chapter 3; Existentialism and Human Emotions, trans. Frechtman and Hazel E. Barnes (New York: Philosophical Library, 1985), especially the essay “Existentialism,” 22, 27, 34; and Being and Nothingness, trans. Barnes (New York: Pocket Books, 1977), especially Part I, Chapter Two, and Part Three, Chapter Three. For trenchant criticisms of Sartre’s views on the emotions see Michael Levin, Metaphysics and the Mind-Body Problem (Oxford: Oxford UP, 1979), especially 175.
  10. See Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, Mass.: Harvard UP, 1996), 252-253.
  11. Owen Matthews, “Mission Impossible?” Newsweek Web Exclusive. Published and accessed 28 Nov. 2006. Search <http://www.newsweek.com> by “Pope’s Visit.”
  12. Andrew Higgins, “Muslims Ask French to Cancel 1741 Play by Voltaire,” The Wall Street Journal, reprinted in the Pittsburgh Post-Gazette online 6 March 2006. Accessed 15 Nov. 2006. Search <http://post-gazette.com> by author.
  13. “According to the Sports Illustrated survey, 87 percent of American Indians who lived outside Indian reservations did not object to Native American mascots or nicknames. Of the Indians who lived off reservations, 67 percent were not bothered by the nicknames, while 33 percent opposed them.” Phyllis Raybin Emert, “Native American Mascots: Racial Slur or Cherished Tradition?” <http://www.njsbf.org/images/content/1/1/11134/Respect%20Winter%202003.pdf>. Accessed 2 Jan. 2007.
  14. I am grateful to my friend Rick Scarborough for some of these examples.
  15. Stanley Fish, “Our Faith in Letting It All Hang Out,” The New York Times, 12 Feb. 2006.
  16. Cf. Fish’s dismissal in “Our Faith in Letting It All Hang Out” of the publisher’s explanation for publishing the cartoons. Fish fails to consider what the cartoonists’ reasons were or might have been.
  17. The best objection is probably to accept the terms of the Wager and show that believing, without regard to evidence, exposes one to the possibility of infinite loss. The reason is that Pascal makes certain assumptions about God’s nature; namely, that He would reward belief per se and punish disbelief per se. But this ignores other possible natures God might have, some of which expose the gambling theist to damnation. Suppose for example that God punished only believers, or else those people who believe for the wrong reasons, for example, poor arguments or else self-interest. I thank Michael Tooley for this point.
  18. Sartre, Being and Nothingness.
  19. I thank my colleague Stephen Levitt for this point.
  20. Jan Goodman, Price of Honor: Muslim Women Lift the Veil of Silence on the Muslim World (Boston: Little, Brown, and Company, 1994), 363. I thank Sanela Jakovljevic for directing me to this work.
  21. Hustler Magazine, Inc. et al. v. Falwell 485 US 46 (1988).
  22. Cited in Carl Dennis, Poetry as Persuasion (London: U of Georgia P, 2001), 81.
  23. “Danish Paper Wins Mohammed Cartoon Libel Case,” by Gelu Sulugiuc, Reuters, 26 Oct. 2006. Accessed 26 Oct. 2006.
  24. Here one could certainly accuse the cartoons—at least the one that gained the greatest notoriety by depicting an image of Muhammed with a bomb in his turban—of inaccuracy. One could maintain that Islam is essentially a peaceful religion that certain mullahs are using for their own purposes to promote violence.
  25. See Peter Singer and Helga Kuhse, “Letting Handicapped Babies Die.” Excerpted from their “The Future of Baby Doe,” The New York Review of Books (1 March 1984), 17-22. Reprinted in James Rachels, The Right Thing to Do, 2nd ed. (New York: McGraw-Hill, 1999), 116-128.
  26. In addition to the van Gogh murder, these include attempts to cancel cultural events in non- Muslim countries, including a Mozart play in Germany and a play by Voltaire in France, and the creation of a pervasive climate of fear that made it impossible for a Danish author to find an artist who would illustrate his book on Muhammed.
  27. Notable campus incidents were discussed by Gary Pavela in his speech, “Defining the Scope of Student and Faculty Academic Freedom,” delivered at the University of Central Florida’s conference “Heresy, Blasphemy, and Freedom of Expression,” 10 Jan. 2007.
  28. I owe this point to the late Richard Sharvy in his unpublished, underground classic, “Who’s to Say What’s Right or Wrong? People Who have Ph.D.s in Philosophy, that’s Who.” For a link to his paper see <http://evans-experientialism.freewebspace.com/sharvy.htm>.
  29. David Richards, “Toleration and Free Speech,” 332.
  30. I do not discuss here the great embarrassment to the Court’s otherwise rational doctrine of unprotected speech: obscenity law.
  31. Schenck v. United States 249 U.S. 47 (1919); Whitney v. California 274 U.S. 357 (1927); Chaplinsky v. New Hampshire 315 U.S. 568 (1942); Texas v. Johnson 491 U.S. 397 (1989).
  32. See Nora Levin, The Holocaust: The Destruction of European Jewry: 1933-1945 (New York: Schocken Books, 1973), 392, 396.
  33. See Gary Pavela, “Only Speech Codes Should Be Censored,” Chronicle of Higher Education, Vol. 53, No. 15 (1 Dec. 2006): B14.
  34. Andrew Altman, “Liberalism and Campus Hate Speech: A Philosophical Investigation,” Ethics, Vol. 103 (Jan. 1993), 302-317.
  35. Altman employs J. L. Austin’s distinction between locutionary, illocutionary, and perlocutionary speech acts from Austin’s How to Do Things with Words (New York: Oxford UP, 1962).
  36. Corry v. Stanford University, California Superior Court, Santa Clara County (1995), No. 740309; American Booksellers Association, Inc. et al. v. William H. Hudnut, III, Mayor, City of Indianapolis, et al. 598 F. Supp. 1316 (S.D. Ind. 1984).
  37. Village of Skokie v. National Socialist Party of America 432 U.S. 43 (1978).
  38. Virginia v. Black (01-1107) 538 U.S. 343 (2003) 262 Va. 764, 553 S. E. 2d 738. Thanks to my friend George Ralph for bringing this case to my attention.
  39. Eugene Volokh, “Burning to Say Something.” <http://www.cfif.org/htdocs/freedomline/current/guest_commentary/first_amendment_ideology .htm>. Web site for the Center for Individual Freedom. The case is Virginia v. Black (01-1107) 538 U.S. 343 (2003) 262 Va. 764, 553 S. E. 2d 738, affirmed in part, vacated in part, and remanded.
  40. Robert Baker introduced this term in his article, “On ‘Chicks’ and ‘Pricks’: A Plea for ‘Persons’,” reprinted in Philosophy & Sex, Robert Baker and Frederick Elliston, eds. (Buffalo: Prometheus, 1975), 45-64.
  41. I believe I heard him make this remark a number of years ago during an interview that was aired on network television.
  42. Pavela, “Defining the Scope of Student and Faculty Academic Freedom.”
  43. Pavela, “Defining the Scope of Student and Faculty Academic Freedom.”
  44. Stanley Fish, “There’s No Such Thing as Free Speech, and It’s a Good Thing, too,” in Paul Berman, ed., Debating P.C.: The Controversy over Political Correctness on College Campuses (New York: Dell, 1992).
  45. Stanley Fish, “Controversy at Commencement: Who Needs It?” The New York Times, 24 April 2006.
  46. Ronald Dworkin, Freedom’s Law, 205.
  47. Stanley Fish, “Our Faith in Letting It All Hang Out.”
  48. John Stuart Mill, On Liberty (Indianapolis: Hackett, 1978), 10.
  49. Thomas Carlyle, On Heroes, Hero Worship, the Heroic in History (London: Oxford UP, 1928).
  50. Cited in Carl Dennis, Poetry as Persuasion, 14.
  51. Sam Harris, The End of Faith: Religion, Terror, and the Future of Reason (New York: W.W. Norton, 2005).
  52. See the entirety of Harris, The End of Faith, chapter 3, “In the Shadow of God,” for a catalogue of gruesome punishments doled out for transgressions against scriptural commandments.
  53. See John Rawls, Political Liberalism (New York: Columbia UP, 1993), Introduction, xvii-xxvii. One of Rawls’s primary aims is to distinguish political liberalism, which he regards as freestanding, from liberalism as a normative theory that is wedded to metaphysical claims or a conception of the good.
  54. Thomas Nagel, “Moral Conflict and Political Legitimacy,” 61.
  55. Ronald Dworkin, Freedom’s Law, 239.
  56. See Nora Levin, The Holocaust: The Destruction of European Jewry: 1933-1945 (New York: Schocken, 1973), 392, 396.
  57. See Brian Murphy, “Christian Population Falls in Holy Land.” Published and accessed 11 Nov. 2006. Available at <http://www.breitbart.com/article.php?id=D8LB5EVO0&show_article=1>. Or search <http://my.att.net> by author and title.
  58. Thanks to my colleague Stephen Levitt for this analogy with equity court.
  59. See Arthur Ripstein, “Beyond the Harm Principle,” Philosophy and Public Affairs, Vol. 34, No. 3. (Summer 2006), 215-245. According to the sovereignty principle, domination comprises the main category of restrictable act. This allows Ripstein to account for prohibiting the actions of a harmless intruder, which the harm principle seems unable to handle.
  60. The BBC News online: <http://news.bbc.co.uk/1/hi/uk_politics/3871867.stm>, 31 Jan. 2006. Accessed 2 Jan. 2007.
  61. Hart, Law, Liberty, and Morality, 41-43.
  62. See Rawls, Political Liberalism, Lecture IV.
  63. John Finnis has produced an elegant argument for thinking that no political principle can be completely neutral with regards to the good in his article, “Rights and Equality of Concern and Respect,” reprinted in Morality, Harm, and the Law, Gerald Dworkin, ed. (Boulder: Westview, 1994), 43-45.
  64. Dworkin, Morality, Harm, and the Law, 258.

David L. McNaron

David L. McNaron received his Ph.D. from the University of Miami. He teaches philosophy at Nova Southeastern University in Fort Lauderdale, Florida. His research and teaching interests include philosophy of science, philosophy of mind, and ethics. [email protected]