Free speech and its fuzzy edges

Free speech and its fuzzy edges

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While some rights - human rights - can easily be thought of as inhering to the human condition, their formulation none the less is made, given shape by particular men and women at particular times and places.

Some of these productions can become obsolete, others have long lives. Some are the passions of a few (the right to gay marriage), others are held by vast stretches of humanity (the right to practice one’s religion without persecution).

But all of them, once formulated as rights, are made over time, and typically through struggle.

Because formal rights are made rather than naturally sprouting out of the earth or falling from the sky, they are fragile – and history has shown this over and over again.

They need to be handled with care. They can be damaged, or be misused. If so, they can be the source of precisely what they seek to neutralise.

The events of the past weeks make some of this visible: our precious and foundational freedom of speech has fuzzy edges, no matter how clear and persuasive its centre.

There is something specific, different about invoking free speech in the frontier zone - a no man's land where the rules of engagement are not specified, and where those who interact may bring very different notions about rules of engagement.

When catholic artists caricaturise Jesus - and they do this frequently - they are recognised as having this right even when severely criticised (and even when some governments, eg the US government, withdrew funding already granted to such an artist and to the gallery showing his art).

But this is Christians criticising, even attacking, other Christians, and an old fight between familiar enemies. Is this different from the use of racist language against blacks by whites and against Jews by Christians?

All the newspapers involved [in prophet Muhammad cartoons] are right-wing papers, and, further, that the global War on Terror is itself a fuzzy war and hence easily seen through ideological lenses

In the US, a fine and often problematic distinction has been carved out between free speech and hate speech. Behind this distinction lies the US past as a slave-based economy and its present as a racist society and second-class citizenship of African-Americans continuing today.

I accept this distinction and I think it is critical, and perhaps especially so in situations of latent or open conflict and racialisation.

Let's go further. When the sophisticated magazine The New Yorker, read by a sophisticated audience rather than a mass audience, published a caricature on its cover that made "fun" (an ambiguous notion when dealing with these types of subjects) of a particular Jewish practice, the reaction in New York City was sharp and swift, with accusations of anti-semitism.

When a politician in the US or in the UK makes openly racist comments, he or she will be held accountable. Such speech is rarely seen as freedom of speech. It is seen as unacceptable hate speech.

But nobody is going to claim the head of the editor of The New Yorker, or of the politician at fault, even though there will be strong public condemnation across the public media.

Beyond this distinction with hate speech, do conditions of extreme stress and latent violence affect what is and what is not free speech?

Would today's notion of free speech justify the publication of strongly anti-semitic cartoons and caricatures during Hitler’s leadership?

The more measured response has been to qualify this by saying that the regime itself was neither democratic nor supportive of free speech and hence is not a justifiable comparison. I would agree with this.

But how about the anti-Zionist notions promoted by a few minority sectors among the Muslim population that invoke historical falsehoods about various types of Jewish conspiracies to control the banks, cause world wars, and so on?

Our precious and foundational freedom of speech has fuzzy edges, no matter how clear and persuasive its centre

Is that freedom of speech and hence justified? In this case, the more measured response has been no, because these accusations are known to be unfounded.

I would also agree with this. And what about the (much criticised and condemned) decision by the American Civil Liberties Union (ACLU) in the US to support the demand from a neo-Nazi organisation to hold a public march in a small town in Indiana?

I would agree that the ACLU was right in invoking the formal right of free speech, as is being done by the newspapers that published the caricatures.

What is the fuzzy edge of this foundational right to free speech that is becoming visible today? It contains elements of all of the above but it is a different mix.

Critical is distinguishing between the formal right and the conditions within which it gets invoked.

This means it is not enough to invoke only the formal right, as the pertinent newspapers and their supporters have done.

We need to add several other elements to make sense of the current debacle.

First, the politics of the first and the later newspaper that published the cartoons. They are all recognised as right-wing papers.

Would today's notion of free speech justify the publication of strongly anti-semitic cartoons and caricatures during Hitler's leadership?

Secondly, the Bush administration has stoked the fires of rage in the Muslim world with it actions of the past four years - the war on Iraq, the singling out of Muslims for surveillance, rejection of visas to the US, incarceration without probable cause etc.

Thirdly, global awareness of the cartoons (though not at the time of the original publication, September last year) coincided with a new US-Muslim world contest: Iran’s nuclear energy development plan and its insistence that it has the right to develop nuclear energy, which it has according to the Vienna Convention.

Whatever the doubts we might have about Iran's assertions about peaceful purposes, the decision by the West to punish Iran is inflammatory for many (though not all) Muslims in the current context; further enraging many in the Muslim world is the double standard evident here because the Bush administration and several European countries now also have decided to develop nuclear energy.

Fourth, regardless of these contingent conditions, the line between free speech and hate speech may have been crossed in some of these cartoons.

The line between free speech and hate speech may have been crossed in some of these cartoons

It is likely that publishing and republishing across Europe a caricature of a bearded man representing Jehovah, deploying a missile such as those used to shoot on Palestine, would anger and offend many Jews in Israel and would be seen as hate speech more than free speech.

Over the centuries, both Jews and Muslims have suffered multiple forms of persecution and aggression at the hands of Europeans.

The Catholic Inquisition, pursued mostly its own – the enemy inside. Caricaturing the Christian god and prophet in Europe, where Christian faiths dominate, is caricaturing your own. There is a difference.

Many voices have been heard in Europe – from governments, citizens, and civil society organisations - criticising the use of the right to free speech to publish material which borders on hate speech.

Similarly, many reasonable voices have been heard, also in the Muslim world, deploring both the hate speech of these caricatures and the violent reactions among particular Muslim groups.

Where does that leave us? The mix of stressful conditions signals that in terms of strict content, at least some of the caricatures (the suicide bomb-wearing prophet) are much closer to hate speech than to free speech.

They (rights) need to be handled with care. They can be damaged, or be misused. If so, they can be the source of precisely what they seek to neutralise

Bush’s declaration of a global War on Terror colours the publishing of the more egregious images: they become yet another shot fired in this war.

This is particularly so given that all the newspapers involved are right-wing papers, and, further, that the global War on Terror is itself a fuzzy war and hence easily seen through ideological lenses.

The result is a combustible mix: hate speech at a time of war. At a time of war at least some will respond to this as an attack, not as free speech. And then the familiar and tragic cycle continues: more war is the response to war.

Saskia Sassen is the Ralph Lewis Professor of Sociology at the University of Chicago, and Centennial Visiting Professor at the London School of Economics. Her latest book is Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton University Press 2006).