Francis v. the Zeitgeist

The murders of several French journalists by Islamic extremists earlier this month produced not only condemnation of the murders but an unambiguous and no-questions-asked solidarity with the journalists. Francis, the incumbent bishop of Rome, has taken fire for comments supportive of the minority position, which is no more ambiguous as to condemning the murders but which nevertheless declines to stand in no-questions-asked solidarity with the journalists. Having been severely critical of Francis on many issues, I feel obliged to say a few words that are not entirely adverse to his position on this one.

I.

On January 7, 2015, jihadist terrorists attacked the offices of a French periodical titled Charlie Hebdo, executing most of the editorial board and killing a maintenance worker in the building and two nearby police officers. 1 Charlie is described as “satirical,” although it seems more akin to South Park than to Private Eye, and the attack was motivated by Charlie‘s publication of various obscene cartoons of Muhammed, the founder of Islam, who is revered by Muslims as the definitive prophet of God. 2 The attitude of Islam (i.e. the neutral and objective content of the religion itself) toward depictions of Muhammed is unclear to me, but the prevailing view among Muslims (i.e.  the understanding and lived experience of adherents to the religion) regards depictions of Muhammed as blasphemous per se. 3 Either way, however, the particular images published by Charlie would seem blasphemous (or at least profoundly offensive)  to Muslims, whether or not any depiction would have been blasphemous per se. By way of analogy, Christians do not regard images of Jesus as blasphemous per se, 4 but they would certainly agree that images of Jesus can be blasphemous, and that, for example, Charlie‘s 2011 depiction of Jesus sodomizing God is blasphemous. 5 Notably, the cartoons at issue were so repugnant that even non-muslim contemporaneous commentary condemned them. 6 

Reaction to the murders crystallized in the slogan “je suis Charlie,” which seems to have expressed not only outrage at the murders, but identification and solidarity with Charlie. 7 Indeed, for a while, it seemed that one had to choose: You’re Charlie or you’re jaune. 8 Although more careful writers conceded at least that “it is possible to reject the content of those drawings and still stand firmly with the Charlie Hebdo staff,” 9 the majority sentiment and zeitgeist was unquestionably an identification with Charlie Hebdo: An embrace of its speech as our freedom of speech and a rejection of retribution against its speech as an attack on our speech which must be met in “us-versus-them,” “with-us-or-against-us” terms. The implication of je suis Charlie, then: One is either with Charlie or else one is apologizing for murder and excusing terrorists—a manufactured morton’s fork were there ever one.

Predictably, this produced a backlash. 10 Some found it wildly ironic that those who would normally be very happy to police speech were suddenly pretending to favor free speech. 11 And to be sure, some of it was undoubtedly self-serving. 12  In the main, however, those who were uncomfortable with the “je suis Charlie” slogan were motivated by one basic concern: Sometimes both sides of a controversy are wrong, and who said that we must choose between unqualified support for Charlie and supporting the murders? Charlie acted like dicks. Yes they had a right to act like dicks, and murdering them for being dicks is indefensible, but neither identifying with nor defeending dickish behavior is a proper response to the murders of dicks or a necessary predicate of faulting such. 13 The Dutch blogger Thomas Wells wrote, trenchantly:

Making use of the freedoms permitted by liberalism to denigrate the morality, sanity, or humanity of other people – including many of one’s fellow citizens – doesn’t make someone a defender of those rights but someone who finds it agreeable to say such things about that group of people. And frankly, if you want to say such things in such a way that those people will hear you, then you are an asshole not a hero. I share in the general horror that people who want to exercise their human right to be assholes to and about Muslims should be at special risk of extreme violence. Assholes deserve to be shunned, not murdered with cruel delight. But being murdered doesn’t make their behaviour any more reasonable. It doesn’t make them heroes to emulate … Let’s not turn lulz into something noble. Charlie Hebdo‘s purpose and business plan is provocation, not journalism … [andin ] the long term, … [assholish behavior] undermines the very goal that the freedom of the press was meant to achieve, and that the assholes themselves implicitly rely upon: society-wide, civil, informed and pluralistic conversation about the issues of the day. The press have a variety of special entitlements and rights because of their special role as underlabourers of democracy. Those news media companies that partly or largely refuse to take their moral responsibilities seriously undermine mutual civility between citizens and increase public cynicism of democratic ideals. We should not pretend that liberal democracies are served by such behaviour or that they would be diminished by its absence. 14

And from the left, Katherine Cross:

[B]y making untouchable martyrs out of the slain Charlie Hebdo writers and artists, and belittling the longstanding concerns many have had about the newspaper’s history of racism, we compound the tragedy and do further violence to free expression … It starts with the well-meaning “Je Suis Charlie” (I am Charlie) slogan that many lent their names to in a show of support and sympathy for the newspaper, its remaining staff, and those who grieve. I support the sentiment, the empathy, the compassion that the slogan represents at its best…. But the simple fact is, I am not Charlie. I couldn’t be. Rather, I’m the sort of person who’d only ever get to be an ugly, rude caricature in their pages — a trans woman, a Latina, Puerto Rican but in the same community of Latinos scapegoated for various and sundry evils in the US, much as Muslims are in France. I’d never be the one wielding the pen, merely the lewd, pornographic subject and nothing more. I’d be fit for only the consumption of a privileged community, their joke, an unwilling jester. No, je ne suis pas Charlie. 15

It was into this ferment that Francis chose to wade, telling reporters on January 15:

[Freedom of expression is a] fundamental human right, [but one that must be exercised] “without giving offense. It’s true, one cannot react violently, but if Dr. Gasbarri, a great friend, says a swear word against my mother, then he is going to get a punch. But it’s normal, it’s normal. One cannot provoke, one cannot insult other people’s faith, one cannot make fun of faith. 16

II.

I am not in the business of defending Francis, but, if I have correctly understood his point here, I am sympathetic to it. I don’t take him to be calling for legal limits on insulting speech, but rather to be saying that free speech should be used responsibly: One should not set out to deliberately and gratuitously provoke people. 17 He is, in other words, saying precisely what Bill Donohue said last week. 18 Because I think that “purposeful speech at which offense might conceivably be taken” is a distinct category from, and can (at least usually) be distinguished from “speech that is intended solely to provoke and offend,” I tend to agree.

Charlie Hebdo is not Paul Robert Cohen, and what Charlie said was not “Fuck the draft.” 19 Cohen chose strong, direct, shocking language to draw attention to and take a position on one of the defining moral and political issues of his time. 20 The Cohen court was able to say that “the State certainly lacks power to punish Cohen for the underlying content of the message [that] the inscription conveyed” because there was distinct content within in the form. 21 Here, however, Charlie’s “speech,” was worthless, little more than a gratuitous, juvenile insult. We aren’t talking Steve Bell, but graffiti on the Sixth-Form toilet walls—”Smith smells.” Even the New Yorker had to admit (doubtless uncomfortably) that we have been pressed into mounting our defense of free speech not from some great redoubt of journalistic integrity but rather at the trenchline of some “puerile doodles” that are “at odds with any standard of good taste.” 22 They should not have been drawn; they should not have been published. That’s Francis’ point.

But what about other speech that offends jihadis? When Dana Loesch interviewed Donohue last week, she noted that the jihadists don’t just take offense in cases such as this, but also in cases that we would recognize as legitimate satire, to say nothing of serious discussion: Jihadis killed Theo van Gogh (and still hope to kill Ayaan Hirsi Ali) over their film “Submission,” for example, which we might think provocative in form, but would certainly recognize as legitimate commentary in content. 23 Therefore, Loesch insisted, “offense” can’t be the criterion. You can’t say “don’t say things that offend Muslims” because the jihadis are offended by everything, and so the proffered rule is massively overinclusive and therefore contrary to basic liberties. Even if you think that you shouldn’t gratuitously offend people, Loesch seemed to say, surely you agree that it’s legitimate to criticize Islam, including by way of satire, and so, because and to the extent that the mere act of criticizing Islam gives offense, you can’t have it both ways.

Here is the problem: Loesch and the “je suis Charlie” model assume that there is no cognizable distinction between satire that may offend and gratuitous insult. That is error. They mistake the difficulty of situating any given example on one side of the line or the other for the possibility of drawing such a line. We might disagree over whether Spitting Image, whether in gross or at any particular moment, was gratuitously offensive or making a serious point through offensive speech, but we surely recognize that the line exists. We draw that distinction all the time in America. In their interview, Donohue noted, and Loesch conceded, that the word “nigger” would ordinarily be deemed too offensive to be aired, and a guest who used it would be censored. But when the context is Blazing Saddles, in which Cleavon Little threatens the crowd “hold it! The next man makes a move, the nigger gets it!” while holding himself at gunpoint, 24 or “hip hop,” a form of popular music in which exaggerated machismo doggerel is recited over exaggerated drum beats and sampled music, 25 no one bats an eyelash. And we are constantly told by our progressive brethren that we can and should differentiate between legitimate speech and its cousin “hate speech.” 26  Sometimes we’re pretty terrible at doing it, and perhaps we shouldn’t be doing it at all, 27 but we do it nevertheless, and everyone will agree that there are close calls and there are easy calls. Like Justice Stewart, we know it when we see it. 28

Think about Brandenburg v. Ohio. 29 Brandenburg warns that the First Amendment probably won’t protect free speech that intends to and probably will incite imminent lawless action. But the court nevertheless thought that kind of speech distinct from speech that merely ruminated in the abstract on the merits and morality of imminent lawless action. Easy for the court to say! Mr. Brandenberg’s indictment followed a speech at a Klan rally in which he told many armed klansmen how important it was to fight and bury the “niggers” and deport the jews; nine elite lawyers sitting four hundred miles away and a year later thought this abstract political speech rather than any imminent incitement to act on it, 30 but one must wonder whether an ordinary black (wo)man or a jew(ess) present at the speech would have felt perfectly safe attending Mr. Brandenburg’s academic lecture on the moral propriety of his or her being killed or deported. Nevertheless, we all understand the court’s distinction even while acknowledging that it can be tricky to apply. Sometimes we’re pretty terrible at applying it, and perhaps we shouldn’t be applying it at all, but we do it, and everyone will agree that there are easy cases where it’s obviously incitement or it’s obviously academic, and hard cases where it looks a lot like incitement but it could be academic. Even if we thought that Mr. Brandenburg’s conviction should have been sustained on the facts as were, imagine that he had instead been indicted under the same statute and theory for publishing a satirical cartoon in the Klan newsletter depicting a klansman patting down the dirt on a grave marked “Jim Crow”: Would we not then think differently? Again, Like Justice Stewart, we know it when we see it.

So “Fuck the draft” is protected speech, as Cohen teaches; “I’m going to fucking kill you” might well be a threat to which criminal consequences may attach; “I’m going to kill you, nigger” is not only a threat but also a hate crime, punishable by additional charges or enhanced penalties in many jurisdictions. 31 In the same way, “I have some concerns about the status of women raised in orthodox judaism / islam / Christianity” is speech; “we ought to call ourselves brights in distinction to the religious dims” is gratuitous insult disguised as charmless braggadocio. 32 A depiction of Pope Benedict holding up a condom in place of a host might be appropriate satire (that was one of Charlie‘s covers), but the afore-mentioned depiction of Jesus sodomizing God is nothing more than gratuitous offense. These are distinctions that we can generally recognize in concrete situations, even if we would be hard-pressed to frame a rule categorizing them abstractly and ex ante. In the same way, there may be cartoons of Muhammed (and other things that will offend jihadis) that we would account as okay, because they have a worthwhile and serious point, and we ought to defend their publication. But there are other cartoons that do nothing more than stick a thumb in the eye of a hated minority for the sheer gleeful joy of doing so and knowing that one won’t be prosecuted for it. And we can and should feel differently about the latter; as Lino Graglia has observed out, it is simply not true that if we today ban Hustler, we must and will necessarily tomorrow ban Hamlet. 33

All told, then, I think that Francis is urging little more than a social norm against hate speech. He disagrees with and would be dismayed by (as I do and am) the Charlie supporter who said, in a moment of ill-advised candor that “Americans don’t like to hurt people with cartoons—but you should hurt people!” 34 Really? That is the crass “I can do it and so I shall” attitude that St. John Paul II castigated in his famous 1981 message for the World Day of Peace:

[T]rue freedom is not advanced in the per missive society, which confuses freedom with licence to do anything whatever and which in the name of freedom proclaims a kind of general amorality. It is a caricature of freedom to claim that people are free to organize their lives with no reference to moral values, and to say that society does not have to ensure the protection and advancement of ethical values. Such an attitude is destructive of freedom and peace. 35

To be sure, Francis and I would disagree if he proposed that hate speech ought to have legal or disciplinary consequences. My objection to hate speech laws is that the term is vague and standardless, and the range of “easy” cases is pretty large, and the range of harder-but-nevertheless-claimed cases is enormous and extremely diverse. How can neutral rules of general application manage so broad a range of fact-patterns against so amorphous a standard? Law is a blunt instrument that deals best with clear rules, clean lines of demarcation, and fact-patterns that fit into straightforward templates. 36 There may be as many different plans for robbing a bank as there are bank buildings, but robbing a bank is a straightforward and encompassing template that legal rules can manage. “Every person who shall offend any person by hateful speech directed against the beliefs of the group to which that person belongs” isn’t. It isn’t even begging for abuse: It’s insusceptible of principled application. Think of Snyder v. Phelps: Was Westboro’s speech protected, as the majority concluded, or dickish hate-speech, as Justice Alito concluded in dissent? By what standard can law judge that sort of question? In the same way, how can law referee whether a cartoon of Muhammed is nothing but a gratuitously offensive image or whether it has some redeeming value? Well: It can’t, and for that reason it probably shouldn’t try.

But you and I can. And, again, that is Francis’ point, it seems to me. I don’t object to a social norm that looks askance at hate speech. It’s not a question of the state subjecting speech to legal limits but rather individuals subjecting speech to ethical considerations.

* * *

Reviewing a proposal to criminalize hate speech for the New York Review of Books, retired Justice John Paul Stevens concluded: “In the end, although the book does not persuade me that it would be wise to outlaw the entire category of hate speech …, [it] elegantly and convincingly advocates that our leaders should not only avoid the use of hate speech themselves, but also condemn its use by others … We should all do our best to preserve President Ford’s conception of America as a place where we can disagree without being disagreeable.” 37 I see Francis’ comments as doing little more than accepting this invitation. 

Notes:

  1. See generally Wikipedia, https://en.wikipedia.org/wiki/Charlie_Hebdo_shooting (all cited web resources as last visited Jan. 16, 2015, unless otherwise indicated).
  2. See, e.g., Anjem Choudary, People know the consequences: Opposing view, USA Today, Jan. 8, 2015, http://www.usatoday.com/story/opinion/2015/01/07/islam-allah-muslims-shariah-anjem-choudary-editorials-debates/21417461. Choudary is to be commended for his candor and USA Today for their willingness to publish it, for they have short-circuited the handwringing political correctness and and accusations of strawmen that might otherwise have hamstrung our ability to talk frankly about the causes of the attack.
  3. See Wikipedia, https://en.wikipedia.org/wiki/Depictions_of_Muhammad; cf. Caroline Alexander and Salma El Wardan, Prophet Image at U.S. Supreme Court Shows Taboos Aren’t Eternal, Bloomberg News, Jan. 26, 2014, http://www.bloomberg.com/news/2015-01-26/prophet-image-at-u-s-supreme-court-shows-taboos-aren-t-eternal.html (last visited Jan. 27, 2014).
  4. That question was resolved at the Second Council of Nicea in 787. See generally [Documents and Decrees of] The Seventh General Council (Mendham, trns. 1850).
  5. See Alice Robb, There Is No ‘Charlie Hebdo’ In America, The New Republic, Jan. 8, 2015, http://www.newrepublic.com/article/120717/charlie-hebdo-attacks-difference-between-american-and-french-satire
  6. See, e.g., Jerome Taylor, It’s Charlie Hebdo’s right to draw Muhammad, but they missed the opportunity to do something profound, The Independent, Jan. 2, 2013, http://www.independent.co.uk/voices/comment/its-charlie-hebdos-right-to-draw-muhammad-but-they-missed-the-opportunity-to-do-something-profound-8435693.html.
  7. See Wikipedia, https://en.wikipedia.org/wiki/Je_suis_Charlie; see also, e.g., Catherine Mayer, Je Suis Charlie: Crowds in London Stand With Charlie Hebdo, Time, Jan. 7, 2015, http://time.com/3658499/london-crowds-unity-charlie-hebdo; Benjamin Mullin, ‘Je Suis Charlie’: U.S. journalism organizations join Charlie Hebdo in solidarity, Poynter, Jan. 7, 2015, http://www.poynter.org/news/mediawire/311069/je-suis-charlie-u-s-journalism-organizations-join-charlie-hebdo-in-solidarity.
  8. See Jeffrey Goldberg, We are not all Charlie, The Atlantic, Jan. 8, 2015, http://www.theatlantic.com/international/archive/2015/01/we-are-not-all-charlie-hebdo-attack/384319/
  9. Joe Conason, What ‘Je Suis Charlie’ Should Mean to Us, Truthdig, Jan. 9, 2015, http://www.truthdig.com/report/item/what_je_suis_charlie_should_mean_to_us_20150109.
  10. See generally Seven reasons why people are saying ‘Je ne suis pas Charlie’, The Week, Jan. 14, 2015, http://www.theweek.co.uk/world-news/charlie-hebdo/62060/seven-reasons-why-people-are-saying-je-ne-suis-pas-charlie
  11. See, e.g., Clare Short, Charlie Hebdo – You are not allowed to say that, Faith in our Families, Jan. 8, 2015, http://faithinourfamilies.com/2015/01/08/charlie-hedbro-you-are-not-allowed-to-say-that; David Brooks, I am not Charlie Hebdo, The New York Times, Jan. 8, 2015, http://www.nytimes.com/2015/01/09/opinion/david-brooks-i-am-not-charlie-hebdo.html; see also, e.g., Scott Jaschik, Outrage Over Student’s Tweets, Inside Higher Education, Dec. 23, 2014, https://www.insidehighered.com/news/2014/12/23/debate-brandeis-over-students-twitter-comments-murder-nyc-police-officers (reporting calls for a student at Brandeis University to be expelled over a tweet expressing a lack of sympathy for the murdered NYC cops because she “hate[s] this racist fucking country”).
  12. Brendan Bordelon, ‘I AM NOT CHARLIE’: Leaked Newsroom E-mails Reveal Al Jazeera Fury over Global Support for Charlie Hebdo, National Review Online, Jan. 9, 2015, http://www.nationalreview.com/corner/396131/i-am-not-charlie-leaked-newsroom-e-mails-reveal-al-jazeera-fury-over-global-support.
  13. See, e.g., Arthur Chu, Trolls and Martyrdom: Je Ne Suis Pas Charlie, The Daily Beast, Jan. 9, 2015, http://www.thedailybeast.com/articles/2015/01/09/trolls-and-martyrdom-je-ne-suis-pas-charlie.html.
  14. Wells, Je ne suis pas Charlie: Why ‘Assholes’ can’t be Heroes, ABC Religion, Jan. 15, 2015, http://www.abc.net.au/religion/articles/2015/01/15/4162569.htm.
  15. Cross, Je ne suis pas Charlie: On the Charlie Hebdo massacre and dueling extremisms, Feministing, Jan. 8, 2014. In the United States, the Charlie massacre followed hot on the heels of a controversy in which Sony Pictures was bullied, presumptively by North Korean hackers, into scrubbing the release of a movie titled The Interview, in which two American boobs attempt to kill the dictator of North Korea, identified by his actual name and, it would appear, known (if exaggerated) idiosyncrasies. Then as now, response was divided between those who emphasized the broader principles of free speech and those who felt that the puerile, crass, worthlessness of the movie made it a poor vehicle indeed for a debate about free speech. Cross adds: “[W]hat both cases have in common is an impoverished idea of free speech that is actually anathema to a democratic society, makes idols of art that should be up for discussion, and threatens to make a mockery of the very ideals people claim to be defending now.”
  16. Francis Rocca, Pope says respect for religion should limit freedom of expression, Catholic News Service, Jan. 15, 2015, https://cnsblog.wordpress.com/2015/01/15/pope-says-respect-for-religion-should-limit-freedom-of-expression/?utm_medium=twitter&utm_source=twitterfeed
  17. Cf. Simon Dodd, The NSA programs, 3 MPA 114, 115-16 (2013) (distinguishing the existence of Congressional authority over the military from the wisdom of exercising that power).
  18. Bill Donohue, Muslims are right to be angry, Catholic League Blog, Jan. 7, 2015, http://www.catholicleague.org/muslims-right-angry.
  19. See Cohen v. California,  403 U.S. 15 (1971).
  20. Id., at 18; see, e.g., The Legacy: The Vietnam War in the American Imagination 312 (Shafer, ed. 1990).
  21. Id. (emphasis added).
  22. Philip Gourevitch, The pen vs. the gun, The New Yorker, Jan. 8, 2015, http://www.newyorker.com/culture/cultural-comment/pen-vs-gun-charlie-hebdo (last visited Jan. 27, 2014).
  23. See https://www.youtube.com/watch?v=GwycJcJ4T8op.
  24. See https://www.youtube.com/watch?v=upvZdVK913I (last visited Jan. 27, 2014).
  25. See, e.g., Steven Elbow, Negotiating the N-word: It’s pervasive in pop culture, toxic in schools, Madison, WI Capital Times, June 18, 2014, http://host.madison.com/news/local/writers/steven_elbow/negotiating-the-n-word-it-s-pervasive-in-pop-culture/article_ccc94a5a-f65c-11e3-aca3-001a4bcf887a.html; but see Andres Tardio, Chuck D Criticizes Iggy Azalea, N-Word Usage, HipHopDX.com, July 10, 2014, http://www.hiphopdx.com/index/news/id.29674/title.chuck-d-criticizes-iggy-azalea-n-word-usage-.
  26. See, e.g., Reed McConnell, Why Harvard’s Hate Speech Policies Are Necessary, The Harvard Crimson, April 18, 2012, www.thecrimson.com/article/2012/4/18/hate-speech-libertarians; Gerald Uelmen, The Price of Free Speech: Campus Hate Speech Codes, http://www.scu.edu/ethics/publications/iie/v5n2/codes.html.
  27. Compare Jared Taylor, Why We Should Ban “Hate Speech”, American Renaissance, Aug. 24, 2012, http://www.amren.com/features/2012/08/why-we-should-ban-hate-speech, with John Paul Stevens, Should Hate Speech Be Outlawed?, NY Rev. Books, June 7, 2012, http://www.nybooks.com/articles/archives/2012/jun/07/should-hate-speech-be-outlawed.
  28. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
  29. 395 U.S. 444 (1969).
  30. Cf. Roger Waters, The Bravery of Being Out of Range on Amused to Death (Columbia Records, 1992).
  31. “Forty-five states and the District of Columbia have enacted hate crime penalty-enhancement laws, many based on a model statute drafted by the Anti-Defamation League in 1981.” Indiana needs a hate crime law, Indianapolis Star, March 7, 2014, www.indystar.com/story/opinion/readers/2014/03/07/indiana-needs-a-hate-crime-law/6184417. See, e.g., 18 U.S.C. § 249(a); 720 ILCS 5/12-7.1; Mo. Rev. Stat. § 557.035.1.
  32. See, e.g., Wikipedia, https://en.wikipedia.org/wiki/Brights_movement.
  33. Graglia, Government promotion of moral issues, 31 Harv. J. L. & Pub. Pol. 69, 75 (2008).
  34. Verena Dobnik, New Yorkers Rally, Proclaim “Je Suis Charlie”, NBC 4 New York, Jan. 11, 2015, http://www.nbcnewyork.com/news/local/New-Yorkers-Rally-Proclaim-Je-Suis-Charlie-Washington-Square-Park-288156131.html.
  35. Available at http://www.vatican.va/holy_father/john_paul_ii/messages/peace/documents/hf_jp-ii_mes_19801208_xiv-world-day-for-peace_en.html.
  36. Cf. Wells, supra note __, part III.
  37. Stevens, supra note __.