Is limitless freedom of expression possible?

The Danish cartoons of the prophet Mohammed led to worldwide protests and a boycott of Danish goods in Muslim countries [GALLO/GETTY]

One of the glories of the Western Enlightenment, especially as embodied in the lifeblood of political democracies, is freedom of expression.

This freedom gives people the right to voice their opinions in public spaces, airing unpopular, tasteless, and provocative ideas – and especially those critical of the prevailing political order.

In the United States, particularly, ideas are extended to symbolic acts such as burning the flag as a way of repudiating official policies, or more broadly, the compulsions of nationalism and patriotism.

The US Supreme Court has generally taken a very broad view of freedom of expression, but it finds some outer limits.

It indicated famously that it would validate laws prohibiting members of a movie audience from falsely shouting “fire!” in a crowded theatre, as it explained that the likely result is panic and a stampede that can hurt or kill.

Even at the height of the Cold War, with McCarthyism creating waves of conformity, the endorsement of Communist ideas were generally allowed, although loyalty oaths for certain types of employment were imposed and actual.

Even suspected Communist Party affiliations were punished both formally and informally. The dividing line in wartime and periods of national tension is very thin, as exemplified in the United States by past laws on seditious speech and required loyalty oaths.

The Rushdie dilemma

These issues are often more easily balanced by delicate legal and political acrobatics within national political space.

But, finding a comparable balance globally is far more precarious, if it is possible at all. The exceedingly difficult nature of the problem became evident to many after Salmon Rushdie published The Satanic Verses in 1988 – to critical acclaim in the West and much censure in the East.

The uproar climaxed with a fatwa by Ayatollah Ruhollah Khomeini: On February 14, 1989, he declared it a duty of Muslims to kill Rushdie, and even those associated with the publication of the book anywhere in the world.

Demonstrating that words have deadly consequences, a Japanese translator, Hitoshi Igarishi, was stabbed to death in 1991, as was an Italian translator of the book. In addition, a Norwegian publisher of the book was violently attacked and barely survived.

Rushdie himself went into hiding for about a decade, with Britain providing twenty-four hour police protection. In most countries with large Muslim populations, the book was banned – with the notable exception of Turkey.

Bookstores in the West that carried the book were threatened, and several were burned. Obviously, the fatwa had severe harmful effects on a variety of innocent persons that carried far beyond Iran.

In 1998, Iran’s president Mohamed Khatami appeared to criticise the fatwa, and seemed eager to discourage the worldwide anti-Rushdie campaign, but the fatwa remains formally in effect – as it can only be withdrawn by the person who issued it, and Khomeini died long before Khatami spoke out.

That is even assuming, which is highly unlikely, that he might have been inclined to withdraw the original fatwa.

Had Khomeini been alive in 1998, he would have almost certainly reaffirmed the fatwa, and likely gone on to challenge effectively Khatami’s qualifications to run the country.

With respect to the treatment of the Rushdie book, there exists a definite clash of values and rights. In most countries in the West, this publication was immediately treated as an important work of literature by a renowned author – the publication of which was not even controversial.

While in many Islamic societies, the book was sufficiently offensive to deeply held community beliefs as to make its availability and distribution deeply offensive, and even to pose such a grave threat to public order as to lead several governments to ban its publication.

This diversity over matters of cultural propriety and limits on free expression seems inevitable in a state-centric and multi-civilisational world that contains contradictory assessments of the proper limits of free expression.

Inevitable reactions?

This diversity is an accurate reflection of the world order that currently exists, and is incapable of being persuasive and resolved by resorting to any claimed universal principle.

Despite the worldwide rise of human rights, universal norms cannot resolve difficult controversies about rights – although in almost everywhere but Iran, the Khomeini fatwa was a deeply troubling precedent.

Despite insisting on an unreviewable authority to mandate death by decree to an author, those who facilitated the publication did not infringe on political space; no law was broken or widely endorsed moral position was affronted.

This fatwa was indeed a bridge too far. How to prevent such abuses in the future is a daunting challenge. It is difficult to propose a better response than the ancient encouragement of comity among countries, but this reliance on reciprocal courtesy and respect among sovereign states can hardly be expected to exert much influence.

Indeed, there those who act on the basis of genuinely-held fundamentalist beliefs about good and evil.

It is inevitable that there will, at some point, arise somewhere on the planet behaviour that will give rise elsewhere to the formulation and implementation of efforts to punish or react to controversial ideas that are found offensive – within and beyond territory.

In many ways, as insulting to Muslim sensibilities around the world as The Satanic Verses, was a Danish newspaper’s publication in 2005 of twelve cartoons depicting the prophet Mohammed in a derogatory manner.

In response, riots leading to several deaths took place in Asian countries. The official Danish defensive response to criticism after the event was to call attention to the existence of national penal laws that prohibited blasphemy or discriminatory statements.

It was a curious gesture, as the Danish prosecutor also declared the inapplicability of these laws in that instance as the cartoons “addressed matters of public interest” whose publication was entitled to special protection. Here, there was more at stake than the trouble caused overseas.

The cartoons also caused intense discomfort to Muslim minorities living in Denmark and elsewhere in Europe. The publication and political debate that followed was properly regarded as confirming the reality of an Islamophobic climate of opinion taking shape in Europe.

The Danish response was essentially premised on freedom of expression as taking precedence over harsh criticism directed at religions and their leaders.

Censorship challenges

In this respect, Islam was not being singled out, but was being harshly criticised in a manner that could be construed as blasphemous.

But what of the predictable impact of the cartoons, causing violent reactions around the world and intensifying hostility to Muslims within Denmark? Is this not analogous to shouting “fire” in a crowded theatre?

That is, the publisher and editor should have known that there would be these harmful effects, although some observers have said that the riots were the result of opportunistic leaders in Muslim countries seizing the inflamed moment to gain greater personal influence in a highly irresponsible manner.

Unlike Rushdie, who acted perfectly reasonably, given his British residence and citizenship, the Danish provocation should arguably have been avoided by self-censorship, and the violent responses in Asia were exaggerated reactions that should never have happened.

It is generally desirable to encourage free expression without the state administering the limits, but it is up to the state to prevent riots and societal violence.

The challenge is a difficult one. It could be argued that a stronger civic tradition on Rushdie’s part, but even more so in relation to Khomeini, would have led to self-censorship.

Rushdie expressed surprise, and even a tinge of remorse, that his novel would be an occasion for such a violent and enraged backlash. Long after the fact, he gave the impression on occasion that he might not have written such a book had he anticipated the consequences for himself and others.

The Danish newspaper was forewarned of dramatic effects, but went ahead. In effect, self-censorship does not work if there exists a hostile and commercially driven, even hateful, environment that appeared intent on waging a culture war against or on behalf of the Muslim world.

Koran burning

The case of Terry Jones, the fundamentalist pastor of a small Christian church in Gainesville, Florida, named the Dove World Outreach Center, founded in 1996 and serving 50 families, is a dramatic illustration of the dilemmas posed by hateful and irresponsible speech.

Unlike the supreme leader Khomeini, he was an obscure religious figure who would have remained forever unknown except for his outrageous provocation.

The actions of Rev Jones illustrate the ethical and political challenge in its most vivid form. Jones proclaimed his intention to burn the Koran on the anniversary of September 11 in 2010, even proposing the establishment of an “International Burn a Koran Day”.

He had earlier published a booklet entitled “Islam is of the devil”, and in August 2009, two children from his church were sent home from a local school because of “inappropriate dress” – T-shirts with “Islam is of the devil” emblazoned in bright letters.

The Florida community did what it could to rein Jones in by informal action, denying Jones a burn permit and seeking to cancel the mortgage outstanding on his church.

When asked to explain the reduction of his church membership by 50 per cent, Jones said: “I think mainly just because the things we’re involved in are just really too hot for your normal Christian and your normal person.”

Prior to the burning last month, many urged Jones to refrain, even including General David Petraeus who correctly warned that such acts would endanger the lives of US troops.

At least two US soldiers were killed in distant Afghanistan to avenge the Koran burning. Of course, such an incident should be appreciated as a personal tragedy, although the US military presence in Afghanistan was likely a contributing cause, and in its own way an unlawful and irresponsible provocation.

Should the state step in and impose a punishment or forbid such speech? On what authority? Should the idea of hate speech be associated with hostility to a book (as distinct from a person) that is treated as sacred by more than a billion persons? Is it incitement to public disorder?

Does the answer depend on the national or civilisational setting, or are we living in such a globalised and networked world as to make geographic boundaries meaningless?

Bradley Manning’s saga

This brings me to the sad and illuminating case of Bradley Manning, a young intelligence analyst serving in the military.

While Terry Jones is a free man – despite deliberately generating violent reactions to speech and symbolic deeds known to be deeply offensive to many people – Manning seemingly acted out of conscience and belief facilitating the release of thousands of documents that had been classified by the US government: Iraq and Afghanistan war logs, confidential State Department cables, and other classified material.

As with Daniel Ellsberg’s release of the Pentagon Papers almost 40 years earlier, the evident intention was to inform people about the realities of government policies that were producing death and destruction in foreign countries.

It seems that Ellsberg, also a government security specialist with privileged access and status, wanted people to know some truths about the planning and perpetration of the Vietnam War that were dramatically at variance with what the public was being told about the war by the government.

With Manning, his range of motivations is not fully known, but he seems also to have become deeply disenchanted with the unlawful and immoral manner with which the United States was using its military power, and the extent to which it was hiding war crimes behind heavy curtains of unwarranted secrecy.

Manning has not yet been prosecuted, but has been held in demeaning and cruel conditions for many months.

Without alluding to any extenuating circumstances, president Obama has not only said in response to a question from a journalist in the face of protests by human rights groups and others about Manning’s treatment in military prison that it was “appropriate and meets our basic standards”, but also was caught on tape prejudging the case by saying at a fundraising dinner that Manning “broke the law”, and should be prosecuted.

The Manning case is a further stain on the moral reputation of the United States, and it exhibits a vindictiveness toward a citizen, and member of the armed forces, who steps out of line – seeking to allow a wider public of a democratic society to know a series of “inconvenient truths”.

Perhaps, there is some justification for secrecy in diplomatic communication, and thus for laws that punish improper disclosures, or leaks.

But this kind of case calls for leniency and empathy, assessing the motivation and context, rather than a harsh approach taken to Manning.

Let us remember that high government officials often leak classified information to influence the media treatment of controversial policy issues, and almost never suffer any adverse consequences, enjoying de facto impunity.

What is striking about the Ellsberg/Manning disclosures is the whistle blowing character of their actions. In Manning’s case the documents given to WikiLeaks, including a classified video of a military incident in Afghanistan (an Apache helicopter attack that killed two Reuters News employees and several civilians without any indication of a military target), as well as many documents confirming US association with war crimes, government lawbreaking, and serious corruption.

Such behavior deserves to be known, and rather than condemning the disclosures, the behavior disclosed is what should have produced presidential anger and appropriate action.

Truly guilty?

In a healthy democratic society such behaviour would be protected if the intentions were shown to be positive, and no unwarranted harm could come to identified individuals. In this case, released documents were carefully screened to avoid targeting individuals.

Complex modern societies need the safety valve of whistle blowing, and at the very least, should moderate the implementation of secrecy laws by an acknowledgement of the huge public benefits of governmental transparency.

For Obama’s inappropriate assertion of Manning’s guilt, prior to a criminal trial under the auspices of a military tribunal, further highlights the degree to which statist interests outweigh justice to an individual charged with serious crimes – remember the fundamental right of innocence until guilt is proven by a court of law – and disregards the interest of the citizenry in the greatest possible transparency on the part of their government.

If due process prevails, even a military tribunal should conclude that Obama’s statements have been sufficiently prejudicial (Obama is commander in chief whose views are not likely to be contradicted in a military venue) to have the case against Manning thrown out. Such an outcome is also justified as a result of severe and sustained pre-trial abuse that amounts to torture, or what the Bush presidency chillingly named “enhanced interrogation”.

The German philosopher, Friedrich Nietzsche, wrote in 1885: “The state is the coldest of all cold monsters. Coldly it lies, too; and this lie creeps from its mouth: ‘I, the state, am the people.'” [Thus Spake Zarathustra, ‘Of the New Idol’]

In the Manning case this coldness is exemplified, as is the lie that because the state is the people, the people have no need to know beyond that which the state is prepared to disclose – however incriminating the information.

This coldness of the state is expressed by criminalising truth telling, branding it as virtually a form of treason, whereas a humane political community would seek to learn from those brave and dedicated enough to reveal to their citizen comrades that which is hidden because it should never have been allowed to take place.

To punish righteousness is the seminal sin of organised power that the Bible warns about over and over again, and yet the ears of the modern cold state remain plugged on principle, with the help of laws that stifle the freedom of expression needed to ensure a lawful government.

Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume International Law and the Third World: Reshaping Justice (Routledge, 2008).

He is currently serving his third year of a six year term as a United Nations Special Rapporteur on Palestinian human rights. 

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.