Freedom of expression demands prudence

A deluge of articles and comments on the Charlie Hebdo massacre provokes the question are there limits to freedom of expression? And if so, what are they?

Most people believe there is a give-and-take relationship between rights and duties. In other words, I can only assert a right as long as I recognize the duty to consider what impact for good or ill it may have on others.

If I have a right to freedom of expression, or to freedom from hate speech, then so does my neighbour. If I have a duty to uphold freedom of expression, or to denounce hate speech, then so does my neighbour. But are my neighbour and I restricted in what we can say? In “As a Muslim, I’m fed up with the hypocrisy of the free speech fundamentalists” (NewStatesman, 13 January 2015), Mehdi Hasan writes:

“None of us believes in an untrammelled right to free speech. We all agree there are always going to be lines that, for the purposes of law and order, cannot be crossed; or for the purposes of taste and decency, should not be crossed. We differ only on where those lines should be drawn.”

The right to freedom of expression is recognized by the Universal Declaration of Human Rights and by the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that, “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” The words are important. The freedom to “impart information and ideas” does not constitute a freedom to violate human dignity, to dehumanise, or to humiliate.

Crucially, Article 19 goes on to say that: “Limitations on freedom of expression must: 1) be provided by law, in sufficiently clear terms to make it foreseeable whether or not statements are permissible; 2) be directed at one of the following goals: ensuring respect of the rights or reputations of others, or protecting national security, public order, public health or public morals; and 3) be strictly necessary for the achievement of that goal, including that no suitable alternative measure exists which would be less harmful to freedom of expression.”

Consequently, every government restricts public speech to some degree. Such limitations are justified under the so-called “harm principle” articulated by John Stuart Mill in On Liberty (1859):

“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others.”

Most people agree that this is reasonable and necessary. And many feel that Charlie Hebdo trod a deliberately provocative path between satire and harmful offence. Claiming a right to offend under freedom of expression demands that the offence is not merely gratuitous, but in the public interest. It cannot be dismissed under the rubric of humour. In the light of the senseless murders of Charlie Hebdo’s staff, and knowing that grave offence had already been given on many occasions, a lot of people hoped for a more considered reply when the inevitable next issue came out. Joseph Harker in “Did Charlie Hebdo’s cover get it right? Our writers’ verdict” (The Guardian, 13 January 2015) certainly did:

“Millions of French people took to the streets at the weekend to express their unity against terror attacks, but it has taken just 48 hours to undo this spirit. Because that’s exactly what the new cover of Charlie Hebdo magazine risks doing. In depicting the prophet Muhammad it is deliberately offending the vast majority of Muslims around the world. And in caricaturing him holding a ‘Je suis Charlie’ placard, they are adding insult to injury by claiming the prophet would support the values of the magazine, which for years has been widely criticised for targeting Muslims, in particular, under the cover of free speech.”

Free-speech-graffitiThe American philosopher Joel Feinberg has argued that Mill’s “harm principle” does not provide sufficient protection against the wrongful behaviours of others, calling instead for an “offence principle”. Feinberg says that some forms of expression can be legitimately prohibited by law because they are very offensive. However, because the degree to which people may take offence varies, or may be the result of unjustified prejudice, he suggests that a number of factors need to be taken into account when applying the principle, including the extent, duration and social value of the speech or act, the ease with which it can be avoided, the motives of the perpetrator, the number of people likely to be offended, the intensity of the offence, and the general interest of the community at large.

By this reckoning, Charlie Hebdo has often been excessively offensive and, consequently, morally indefensible. To avoid misunderstanding, let’s say again that nothing justifies the murderous attack that took place on 7 January 2015. But while public discourse can be – and perhaps should be – provocative, it should not be so inflammatory as to incite hostility, discrimination and violence.

The targets of public satire are rightly the misuse of power, corruption, deceit, incompetence, arrogance, vanity, folly, and a hundred other human failings. Arguably, religion (the search for meaning and purpose in life) is exempt unless – to return to John Stuart Mill – it is being used to harm others. We need to remember that Buddhism, Christianity, Hinduism, Islam, and Judaism all have their share of fanatics and fundamentalists.

No one, least of all Voltaire (who never penned the words attributed to him), ever disapproved of something someone said and defended to the death their right to say it. Today, those who are silenced are the journalists, writers and artists trying to create a better society. What the Charlie Hebdo atrocity teaches us is not that the pen is mightier than the Kalashnikov, but that the pen must be used wisely and judiciously.

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