In a recent column, Common sense is best judge of line between free speech and provocation, New Jersey Star-Ledger columnist John Farmer wrote concerning the Islamic attack on the American Freedom Defense Initiative’s Muhammad Art Exhibition in Garland, Texas:
Maybe some common sense would help; couldn't hurt.
It might start with the realization that no constitutional rights are absolute, not even the right to life. Capital punishment is still legal in many states. And speech is ordinarily subject to regulation involving libel, slander, copyright infringement and hate.
I left these comments:
To say rights are not absolute is to obliterate the concept of rights and along with it everything America and Western Civilization stands for—and in effect to surrender to the fundamentalist Islamic barbarians without a fight. But this begs the question: How are rights absolute? Does it mean we can say and do anything we want regardless of the consequences?
Hardly. “Absolute” does not mean “anything goes.” Rights are absolute, but only within—and this is key—a certain context. The Declaration of Independence states that every individual possesses “certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.” The concept of rights as unalienable and held equally by everyone implies the proper objective context for understanding how rights are absolute.
Inalienability has two sides; the range of freedom that rights protect, and the limits of that range. How so? What is the implied limit? What is the boundary beyond which your freedom to act can not go, without compromising your rights as an absolute? The rights of others. Since rights are guarantees to freedom of action held by all people at all times, your rights are absolute (inalienable) so long as your exercise of your rights doesn’t infringe on the same rights of others. There is no “right” to alienate others from their rights. Just as your rights are unalienable, so are the next guy’s. This principle is best captured in the truism, “Your right to swing your arms ends where my nose begins.”
Let’s take Farmer’s examples. The right to life is not absolute, he says, because in some cases we have the death penalty. But the death penalty doesn’t violate the right to life of a person who killed another. Why? If you kill another person, you’ve violated that person's inalienable right to life, thus forfeiting yours. The right to life is absolute, so long as you don’t take another’s life. Hence, the death penalty is not a limit on the right to life, so long as you keep your life within the confines of rights’ inalienability.
Likewise, freedom of speech is absolute, within the context of inalienability. Your right to speak is absolute, unless you violate another’s rights. Libel and slander involve deliberately false statements intended to damage another’s reputation. Reputation is a tangible part of anyone’s character and an integral part of a person's ability to maintain personal and professional relationships, earn a living, and generally live a fruitful life. Libel and slander laws aren’t limits on your speech. They protect other people’s rights. Thus, such laws do not infringe on the absoluteness of free speech, because libel and slander laws leave you free to speak within the context of respecting other people's rights.
Likewise, freedom of speech doesn’t mean you can steal another person’s intellectual property. Free speech does not allow me to publish this article and call it my own. That would violate Farmer’s right to his property. Hence, copyright law. When I am prosecuted for copyright infringement, the absoluteness of my free speech rights is not compromised, since I ventured outside the boundary established by my duty not to violate the same rights of others.
Hate, on the other hand, doesn’t violate anyone’s rights—not in and of itself. The move to criminalize or limit speech deemed hateful (or create the category “hate crime”) is to place limits on what ideas you can express. Declaring hate speech to be a limit on speech infringes on the individual's domain of proper action, essentially obliterating free speech, because it puts us in a position of being allowed to express only ideas the government deems unacceptable. The criminalization of hate is the criminalization of ideas, the expression and dissemination of which is the very point of free speech. Hate speech laws obliterate the proper, contextual absolutism (inalienability) of free speech rights, thus obliterating free speech altogether. Any right that is not absolute, is not a right at all. Declaring that rights are not absolute is a return to the days when private citizens are mere subjects who can act only by permission of the state—the very state of affairs our Founders sought to protect us from.
We can not merely stand on common sense to define the scope of our rights. We need the absolute protection of the principles upon which rights stand. The Garland Muhammad Art Exhibition proves the point.
The right to free speech, if kept within the boundaries where others’ rights begin, doesn’t imply a moral evaluation. Your can say what you want, including expressing “hate” or mocking others’ viewpoint, religious or non-religious. Others are free to use their own free speech rights to rebut viewpoints they find abhorrent, and it is perfectly appropriate to criticize Pamela Geller and her American Freedom Defense Initiative’s Garland Exhibit mocking Muhammad.
But that criticism should cease the minute anyone uses force or the threat of force in place of free speech. Then, we who cherish free speech should stand together, even to the point of defending a bigot’s right to express their hatred.
The Muhammad Art Exhibition and its organizers may or may not be motivated by “hatred of Islam and/or Muslims.” But that is beside the point. The point is “I disapprove of what you say, but I will defend to the death your right to say it" should come into play. A column blasting the Muhammad Art Exhibition would be appropriate in a civil context, where the battle of ideas is fought with words. But not in light of fundamentalist Islam’s introduction of violence against those they disagree with. Otherwise, where does it end? Farmer and his ilk think speech should end with “hate.” But Islamic fundamentalists aren’t just targeting “hate speech” against Islam, but criticism of Islam as such. Think Rushdie. Think Hirsi Ali. Think Theo van Gogh.
Properly understood, free speech is absolute. After all, if free speech is not absolute, and requires limits, then anyone’s limits are just as valid as the next guy’s. To attack the Garland exhibit in the context of the violent Islamic atrocities, whatever one thinks of the exhibit’s viewpoint or motivations, is to sanction and give moral cover to the Islamic aggressors. It’s no different from blaming a rape victim for “provoking” the rapist by wearing sensually arousing clothing. When free speech is threatened, we should set aside our ideological differences and stand united behind the Hebdos and Gellers, the Rushdies and Alis, alike, under the principle, “We will not be cowed into silence.” Our future freedom to express, challenge orthodoxy, disagree—and provoke—depends on it.
Provocation IS Freedom of Speech—Michael J. Hurd
ATTACKS ON FREE SPEECH COME TO THE U.S.—Steve Simpson, The Ayn Rand Institute
Ayaan Hirsi Ali’s Clarion Call for Islamic Reformation—Craig Biddle, The Objective Standard