The freedom of speech – when should it be denied?

| by Dr. Ruwantissa Abeyratne

( September 25, 2012, Montreal, Sri Lanka Guardian) On Sunday the 23rd of September, in his programme on CNN  “Global Public Square” Fareed Zakaria interviewed Salman Rushdie, the author of “The Satanic Verses” (1988).  Mentioned during that interview was a Fatwa that was issued against Rushdie.   The Satanic Verses is Salman Rushdie’s  fourth novel, which was inspired in part by the life of the Holy Prophet Muhammad.  Rushdie was accused by the Islamic world of blasphemy and in 1989, the Fatwa against Rushdie, issued by Ayatollah Ruholla Khomeini, ordered Muslims to kill Rushdie. Rage over the novel spread worldwide,  resulting in killings and bombings.

Zakaria’s interview with Rushdie was conducted against the backdrop of the worldwide protests, the killing of the United States Ambassador to Libya and violence that has spread over the YouTube release of a documentary called “Innocence of Muslims”.  Pakistani Railways Minister Ghulam Ahmad Bilour  announced that he would reward with $100,000 anyone who murdered  the person who made the 13 minute clip.

In the course of the interview,  Rushdie stated that freedom of speech is one of the greatest treasures of the Western world and that he had chosen to live in the United States because of this entrenched value in the United States Constitution which is guaranteed by the First Amendment.  The text of the First Amendment is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances”.

During the interview, Rushdie was quick to point out that unfortunately, this freedom can be abused by ill-intentioned persons.  In this context, while surfing the web, I found a very sensible  opinion by Jeff Jacob Lourie who says: “It [freedom of speech] is bedevilled by the evil intent, ignorance, and stupidity of literally millions of people. But it is the greatest protection against tyranny that there is. Witness the fall of the dictatorships of Serbia, Argentina, Greece, and Chile. Even in free countries freedom of speech is not something that is automatic. "Eternal vigilance is the price of liberty." That's not just a cliché. We must guard against the rich, the powerful, the crazies, the haters and the fanatics. We need to maintain everyone's right to free speech, but we cannot let lies and libel go unanswered. On the whole we have done a pretty good job here in the U.S.A. and not only in the obvious ways. I do not think it accidental that our contributions to the technology of freedom are so significant: telephones, television, railroads, automobiles, computers and the internet have all increased our ability to communicate freely”.

A landmark case in the United States was the 1981 decision of Widmar v. Vincent where the Supreme Court held that freedom of speech forbade government from prohibiting, punishing, or penalizing speech based on its content. The court was of the view that the Free Speech Clause of the First Amendment thus effectively precluded  government from excluding religious speakers and groups from forums for expression—or from any other benefit—on account of the religious content of their expression or the religious nature of their views or association. Furthermore, the Court went on to hold that the First Amendment did  not enable the State or authorize it to practice  discriminatory exclusion of private religious speakers and groups from public forums for expression, or from other public benefits.

The Widmar case was not directly in point to the subject in issue.  It addressed the situation where the University of Missouri-Kansas City (UMKC), a state university, endeavored to  bar a Christian student group named “Cornerstone” from using university facilities on the basis that they wished to engage in religious worship and expression. While UMKC allowed other student groups to use its facilities, the university excluded Cornerstone from doing so under a regulation forbidding the use of its buildings “for purposes of religious worship or religious teaching”.

By a vote of 8–1, the Court held that the First Amendment’s Free Speech Clause protects religious speech and association by private speakers and groups, just as it protects speech by any other speakers on any other subject, and that the Establishment Clause does not authorize discriminatory exclusion of religious speech.

The Supreme Court in the Widmar case addressed only the issue of free religious speech to propagate a faith and not the issue of using free speech to vilify and denigrate a religion.  In response to the public inflammation caused by the film clip President Obama made the enduring statement: “I have made it clear that the United States has a profound respect for people of all faiths. We stand for religious freedom. And we reject the denigration of any religion – including Islam”.  The statement seemingly carries the message that, although legally one can invoke the constitutional right of freedom of speech, it should not be used to belittle or insult religions. 

My take on this matter is that freedom of speech should not be extended to enable whoever, whether they be of the cloth or otherwise, to denigrate holy religions.  The freedom should only be used to express opinions and practice investigative journalism on politics, bring forth artistic creativity and criticism, and promote intellectual discourse on all but religious faith and beliefs.   I base my view on the fact that religion is a private matter, whereas politics, economics, science and art are in the public domain.  This notwithstanding, no discipline, be it art or science should be used as a medium to denigrate religion, which is a personal and private issue which inevitably affects the conscience of a community, both individually and collectively.  Such denigration would demean humanity and what it stands for.

Another reason for my position is the very jurisprudential nature of the First Amendment where courts have made judicial pronouncement that certain forms of speech are excluded from the right of free expression.  They are obscenity; fighting words; defamation (includes libel, slander); child pornography; perjury; blackmail; incitement to imminent lawless action; true threats; and solicitations to commit crimes.  Surely, by its very nature, denigration of religion can be calculated to “incite imminent lawless action” as it has done through the YouTube clip in question? The Supreme Court has ruled that government can indeed prohibit such speech.

Rushdie concluded at the interview that the current protests were not so much spawned by anger at the denigration of a religion but that they were the result of contrived and tendentious political maneuvers of  individual persons.  He may be right, as, for instance, the protests in India against his Satanic Verses were held at a time when the book had not even entered the country.  However, the basic principle, that nothing should incite lawlessness, however founded, and nothing should incite hatred, has to be upheld.

Truth and justice are unhappily mutually exclusive.  While in legal terms, legislative parameters will define acts and qualitize their reprehensibility, in truth, speech and conduct that ingratiate themselves into a society have to be addressed legislatively and ethically.  This is the dilemma that legislators will face in dealing with religious  hatred.  Hate speech and hate propaganda primarily erode ethical boundaries and convey an unequivocal message of contempt and degradation.  The operative question then becomes ethical, as to whether societal mores would abnegate their vigil and tolerate some members of society inciting their fellow citizens to degrade, demean and cause indignity to other members of the very same society, with the ultimate aim of harming them?   Conversely, is there any obligation on a society to actively protect all its members from indignity and physical harm caused by hatred?  The answer to both these questions lies in the fundamental issue of restrictions on religious  speech, and the indignity that one would suffer in living in a society that might tolerate such expression.