Freedom of expression

Freedom of expression is the right of individuals to express their opinions publicly without any interference. No doubt, right to freedom of expression is fundamental for the progress of any individual and society. In this day and age, still there are many countries which do not extend this right to their citizens. Amongst many others, the right of freedom of expression is protected by article 19, 22 and 22A of The Universal Declaration of Human Rights 1948, European Convention on Human Rights 1950 and Cairo Declaration on Human Rights in Islam 1990, respectively. More or less, all the above mentioned instruments have also stressed on the importance of right to freedom of expression to be used cautiously and have provided the exceptional grounds, crossing of which may amount to abuse of the same.

The debate “Freedom of expression gives one right to insult” is far from settled. Controversial events like Charlie Hebdo, burning of Cross or Quran incidents in the United States, anti-Jewish chants at a football game, or simply insulting others by racist remarks, amongst many others, give rise to the thoughts to have constructive debate on the topic of freedom of expression. The verity that the consequences of these unpleasant incidents just do not affect any one specific community gives this debate an international dimension without confining this to be the issue of one community or region.

I think, it’s outrightly accepted that the right of freedom of expression should be used only for common good but there are many unsolved questions, i.e: how far the right extends and when it starts to insult? Is it ones right to offend others? Should dignity of faith of others be kept in mind while using this right? Should the right to freedom of expression constantly outweigh the religious or personal rights of others? Where we need to draw the lines? Would the abuse of freedom of expression not further alienate the targeted sections of the communities or create problems of public peace and disorder? Whether any limitations or their implementation would be detrimental to the development of individuals and society? Is it just over reaction from the certain communities and lack of tolerance to accept certain human rights?

To seek answer for the above questions along with many more and have a healthy debate we have Ms. Hillary Stauffer, for the motion, Visiting Fellow at Centre for the Study of Human Rights, LSE - UK. Dr. Jameson W. Doig, against the motion, he is a Visiting Research Professor in Government Dartmouth College, and Professor Emeritus at the Woodrow Wilson School and Department of Politics, Princeton University - USA. We will also benefit from the opinions of our featured guests Dr. Brian Klug a Senior Research Fellow & Tutor in Philosophy at St. Benet's Hall, Oxford University - UK and Ms. Lauren Booth a renowned journalist, broadcaster and human rights activist - UK.

We look forward to getting invaluable and insightful thoughts on this pressing issue by our debaters, guests and of course the audience, who are encouraged to vote and comment throughout the debate.

The motion at the heart of this debate is a controversial one, and yet I had no doubt when invited to participate that I wanted to defend it. I do believe, wholeheartedly, that the notion of “freedom of expression” intrinsically includes the “right to insult” – and perhaps even more importantly, the right to react to insults.

Perhaps this isn’t surprising: I was born in the United States of America in the latter part of the 20th Century, and the idea of “free speech” is part of our cultural, social and historical DNA. Indeed, the United States has some of the most liberal laws regarding freedom of expression of any country in the world—although these are not completely unrestricted, and they have been very much tested and refined over the 239 years since the founding of the nation.

The U.S. is not alone in defending the freedom expression; this notion exists in all the major human rights instruments that have proliferated since the end of the Second World War, including the Universal Declaration of Human Rights (Article 19), the International Covenant on Civil and Political Rights (Article 19), the European Convention on Human Rights (Article 10), the Inter-American Convention on Human Rights (Article 13), the African Charter on Human and Peoples’ Rights (Article 9) and the ASEAN Declaration on Human Rights (Article 23). The protections provided in each of these Articles are not identical, but the sentiments are similar. More importantly, each of these instruments represent the compromise language reached by the representatives of dozens of countries, with various governing structures, diverse ethnicities, and assorted religious traditions.

That being said, nowhere in the world is freedom of expression a completely unrestricted right. All countries regulate speech in some way – in some nations, it is only to prevent “immediate” harm, such as imminent violence or endangerment of children. Others, in the interest of harmony, ban hate speech against minority groups (be they racial, religious or social minorities). These types of restrictions seem reasonable, when taken at face value.

“Fine,” you say, “I’m all in favour of freedom of expression! But I don’t want to be insulted.” And I agree, this is where it gets problematic. Because who amongst us wants to be subjected to insult? Social mores in almost any part of the world dictate that strangers should interact with one another with a baseline level of civility, specifically to avoid causing offense. As someone who travels widely, I’m very grateful for these gracious traditions—it makes those awkward instances of initial contact so much more predictable and manageable.

However, these are—at best—customary practices, cultivated over many years. There is no overarching international law dictating that strangers must interact amicably wherever they encounter one another, and moreover, there shouldn’t be. We, as human beings, should at the very least have the agency and free will to change our minds and evolve our thinking over time. And history has shown that this rarely happens unless our outdated ideas and ingrained biases are tested and provoked.

When—as a result of someone else’s freedom of expression—you are presented with a concept that you find insulting, you have several choices of how to react. You can, of course, immediately challenge that person to a duel (although this is ill-advised on a number of levels). You can—in many places—write an anonymous missive on the internet under a fake name, calling into question that person’s parentage, level of education, or piety (also ill-advised). You can simply ignore it, and decide not to permit another person’s opinion to completely ruin your day (anecdotal evidence would indicate that this is the path least chosen everywhere around the world). Or, you can examine the idea, question what about it makes you so uncomfortable, and then devise a considered reaction to it.

However, let’s say that you count yourself among those people who would prefer for your government or religious leaders (sometimes these are one in the same) to tell you how to think and feel. That’s fine—you are in good company; there are billions of like-minded souls around the world that feel the exact same way that you do. The problem here is that the government’s and/or religious leaders’ motivations may not be in your best interest. For example, there are very legitimate reasons to restrict speech which is offensive to a particular racial or ethnic group—but there are spurious reasons as well, including that fact that the government may be trying to protect this particular group’s interests above all others in society.

Or, let’s frame it in terms of religion. Many Catholics find it extremely offensive to equate priests with pedophiles, and of course, this is a false comparison. Proportionally, only a small number of priests are associated with this illegal and immoral behaviour (which doesn’t take away from the lasting and widespread damage to its victims). However, if the fear of insulting the Pope (whom devout Catholics believe is God’s representative here on earth) proscribed all discussion of child abuse by priests, this shameful episode in the Church history would never have come to light. When the “right” to be free from feeling “insulted” takes precedence over the right to freely exchange information and ideas, power brokers who may be motivated solely be self-interest can control the conversation. This cannot be a good thing.

There is obviously an elephant in the room, and its name is Charlie Hebdo. Because of France’s long-entrenched laws regarding free speech, the magazine’s content is freely available for my perusal. After taking advantage of this freedom, I have concluded that I find many of the cartoons in the French satirical magazine highly offensive, including—but not limited to—the ones relating to Islam. Moreover, I find them insulting on a personal, visceral level. And thus, I have decided no longer buy a hard copy of the magazine, or give their website my internet clicks: problem solved.

The ability to speak frankly and openly on any topic is a valuable right, and censorship – as it is practiced in many parts of the world –should in general be condemned.

Yet nations such as Britain, Canada and the United States, which place a high value on freedom of speech, also provide penalties (including fines and jail terms) for those who violate certain laws. In the United States, for example, to defame as individual exposes the defamer to legal action; to publish obscene photos is to risk a fine or prison term; and to burn a cross in the yard of an African-American with intent to intimidate will bring the force of law against you. All of these actions meet the standard definition of “insult” -- doing or saying something that is offensive, i.e. that will cause someone to feel deeply upset.

Currently in the US, the “right to insult” is, I believe, protected from legal action in some areas where civil or criminal penalties should be permitted. For instance, a Supreme Court majority has concluded that burning a cross in the yard of an African-American is legally acceptable unless it can be proven that the cross-burner intended to intimidate. Few Americans (except the Court majority) are so insulated from history that they need to peer into the mind of the cross-burner to determine what his motives are.

More generally, the Supreme Court majority embraces the view set down in Brandenburg v. Ohio (1969) – that hate expression cannot be legally curbed unless it urges imminent action against the targeted group or individual, and such action is very likely to follow. So the Court majority, and those who accept their views, defend the right of college students to paste a caricature of an African-American on the door of a student from that ethnic group and write NIGGERS on the door (the college took no action because this was “protected speech”); and the right of bookstores to sell books that include “graphic sexually explicit subordination of women” in which the women appear to “enjoy pain or humiliation” and are pictured as “sexual objects tied up or cut up or mutilated.” Also protected by the First Amendment’s “freedom of speech” doctrine are the vicious misogynist songs of hip-hop “artists” who sing, for example, of how to rape a woman (“Put molly all in her champagne/she ain’t even know it/I took her home and I enjoyed that/ She ain’t even know it”—Rick Ross) and how to choke a woman (“Slut, you think I won’t choke no whore/Till the vocal cords don’t work in her throat no more?!”—Eminem).

Because these songs and books and postings are seen as unlikely to prompt immediate violence (and so they do not meet the standard of Brandenburg), the Supreme Court majority, lower courts, and college legal counsels, and most First-Amendment scholars have concluded that they and their kin are all protected speech. Yes, they are insulting; but they illustrate arguments made by John Stuart Mill and Louis Brandeis: that freedom of expression is essential in challenging the coercive power of government, and in encouraging individual autonomy. In the view of such defenders as Geoffrey Stone, the burning cross and posting of “niggers” are presumably not of “low value” (unlike libel or obscenity); they add to the richness of society, and they promote individual self-expression. Whether these abusive expressions can be linked to the behavior of those who murder and rape women (in the US, hundreds each year) or demean and kill members of minority groups is difficult to prove, and so, the defenders argue, can be disregarded.

For the free-speech quasi-absolutist, these arguments, with their support in American courts may be persuasive. But perhaps they should not be. The stance of the Supreme Court of Canada offers a different understanding of free speech -- an understanding that, in my view, is more nuanced and more acceptable in a society that aspires to ensure freedom of expression is available to all members of society, including the least powerful.

The Canadian position is perhaps best articulated in an influential opinion (Queen v. Keegstra) written in 1990 by Brian Dickson, then Canada’s chief justice. A high-school teacher, James Keegstra, had focused much attention in his classes on the “evil qualities of Jews”; he asserted that they were “treacherous”, “sadistic”, “money-loving” and “child killers.” Convicted of violating Canada’s criminal code by promoting hatred, he appealed, arguing that his views were protected under the freedom-of-expression clause of the Charter of Rights and Freedoms.

Dickson turned first to the “underlying values” of a democratic society, which include “respect for the inherent dignity of the human person” and “respect for cultural and group identity”. He then argued that “hate propaganda” was a significant concern in Canada and that the “derision, hostility and abuse encouraged by hate propaganda” have been shown to undermine the self-worth of “targeted group members,” who may then withdraw from wider social contact. This silencing effect undermines basic Canadian values and reduces the targeted individuals’ ability to enjoy the benefits of the “freedom-of-speech” banner. Permitting abusive speech of the kind uttered by James Keegstra also, Dickson concluded, raises the possibility that some members of society would believe the messages conveyed, “leading to discrimination, and perhaps even violence, against minority groups”. Keegstra’s conviction was upheld.

Finally, I should comment briefly on the Charlie Hebdo case, which has been viewed by some as an example of expression that should be protected. Since it was widely known that some individuals in Northern Europe readily use violence to attack those who dissent from their alleged Muslim values, the Charlie Hebdo cartoons might be declared illegal under a variant of the Brandenburg standard: imminent violence was not advocated, but it could have been predicted. And since the group mocked was a marginalized, impoverished population in France, Brian Dickson’s standards could also be used to declare the Hebdo mockery to be hate speech and therefore illegal.

Debaters, guests and users’ statements and comments are their independent thoughts, opinions, beliefs, viewpoints and are not necessarily that of MUSLIM Institute's.