Yes the government should protect free speech. But that doesn’t mean it shouldn’t speak out.
- By Corey Brettschneider Corey Brettschneider is professor of political science at Brown University. He is the author of When the State Speaks, What Should It Say? How Democracies Can Protect Expression and Promote Equality.
Reactions to Innocence of Muslims, the anti-Islam video made by a Coptic Christian resident of California, have divided on two familiar lines that separate the United States from most other nations in the world. "Prohibitionists" called for free speech to be limited in the face of blasphemous or hateful expression. In the United States, the most vocal defenders of free speech, the "neutralists," have argued that the government should express no opinion about hate speech. For example, the conservative press reacted to President Obama’s condemnation of the video by calling it an apology for our rights of free expression.
Lost in these two familiar reactions, however, is a third way of thinking about free speech that lacks the flaws of prohibitionist bans and neutralist refusals to condemn even the worst hate speech. This alternative approach, which I call "democratic persuasion," protects all viewpoints, even racist and anti-religious ones, from coercion. But in my view, the protection of free speech must be combined with a strong defense of the value of equal respect. The state should use its status as an influential speaker to defend democratic values and to argue against hateful viewpoints. It is essential that the state criticize hate speech to avoid the misperception that protection means indifference or endorsement. This kind of misperception is endemic in the structure of free speech rights, which protect all viewpoints.
The State Department and the president used this third approach in their public statements and advertisements run on Pakistani television. Far from being a flawed "apology," as conservative media charged, the advertisements released by the State Department suggested how we might appeal to democratic values to condemn hate speech. This approach allows American foreign policy to articulate and explain our uniquely robust free speech tradition. The policy avoids the blunt instrument of prohibiting hate speech as well as the anemic refusal to condemn it.
Our First Amendment doctrine of "viewpoint neutrality" protects all matters of opinion on politics, religion, and philosophy from punishment. Our free speech jurisprudence allows declarations about the falsehood or truth of religious beliefs. This right of free speech respects the autonomy of citizens and their ability to decide for themselves on matters of conscience and politics. This protection is extended to all citizens based on the value of equality.
The right of free speech protects the freedom to express "blasphemous" viewpoints that may be seen as defaming or disparaging the fundamental tenets of a religion. The free exercise of religion, also a right respected in the United States, may depend partly on the freedom to assert the truth of one religion’s beliefs and to disparage assertions of another religion.
The Supreme Court, while allowing threats to be prohibited, has extended free speech to hateful viewpoints, such as those of the Ku Klux Klan and American Nazi party. The anti-Muslim video is also protected by this standard.
The video is meant to cause offense in its depictions of the Prophet Mohammed as a child molester. It combines homophobia and anti-Muslim animus in asserting that homosexuality is fundamental to Islam. In the United States, however, attempts to ban this work would be restricted on free speech grounds.
But the fact that the video is protected on free speech grounds has been confused throughout the world with the endorsement of the content of the video. This misperception that the state’s protection of an anti-Islamic video means that it endorses the video has sparked riots throughout the world. One widely circulated clip that is typical of these denunciations uses the video to suggest that democracy is inherently disrespectful to Islam, because it allows hateful anti-Islamic speech to be expressed without punishment. An impassioned critic goes so far as to suggest that disrespect of Islam is "what democracy is all about."
The confusion of protection and approval is deeply linked to the structure of our rule of viewpoint neutrality. If the government wants to condemn a message, it often does so through a ban. Government sends the message that murder is wrong by punishing murderers. We condemn racial discrimination by banning it in the workplace and in other domains. Conversely the protection of an act is often thought to signal indifference to it. For instance, the state does not ban interracial marriage, and this is taken to mean that the state does not disapprove of it. So it is not surprising that protection of the video might be wrongly thought to signal that the state condones or even approvals of it. Free speech has an "inverted structure" in that the right of free expression can protect viewpoints that are hostile to the very reasons for protecting rights. We protect Nazi speech, even though Nazism would deny free speech protection to others and even though it stands in deep opposition to the democratic value of equal respect that underlies our free speech protection.
Although the conflation between protection and approval is understandable given the inverted structure of free speech, it is a mistake to think that free speech entails government indifference to hate speech. The entire reason we protect free speech is to respect the autonomy of all citizens equally. As the legal scholar Alexander Meikljohn suggests, we protect the right of our citizens to hear all viewpoints precisely because we trust them to make good decisions in the public realm of democracy. This entails enough respect to trust that citizens can hear even the most evil viewpoints while retaining the good sense to reject them.
The basis for free speech in the democratic value of equal respect is expressed throughout the Constitution, and in particularly in our commitment to equal protection. The state has an obligation to articulate the democratic value of equal respect, which is the basis for the right of free speech, even when it allows dissent from the value as a matter of law. It rightly condemns the hate speech that it protects. And it does so often, at least implicitly. When the state "speaks" through public holidays or school curriculum it does take a side on behalf of our own liberal democratic values. We celebrate Martin Luther King Day to express the commitment to equal protection.
The Ku Klux Klan was founded in opposition to the 14th Amendment to the Constitution, which guaranteed equal protection of the law based on race. When we teach in schools the importance 14th Amendment, the government is taking a stand against the views of the Klan and other hate groups. These acts of state speech serve to clarify that while hate groups can say what they wish, the state is not indifferent to these messages. It condemns and argues against them.
The need to clarify that robust free speech commitments are compatible with condemnation of hateful viewpoints is important domestically. But it is also clearly urgent abroad. When the state "speaks" in its public diplomacy it is essential that it explain the values that underlie free speech.
Confusion about the meaning of the United State’s commitment to free speech has drastic consequences. Rioters in Pakistan appeared to believe that the American government was neutral towards or even approving of the hateful views in the video. The nation and its representatives need to explain to the world that we do not protect free speech because we are indifferent to the content of those who abuse it. We can clarify that the United States protects all viewpoints, but that it condemns those viewpoints that violate the democratic value of equal respect.
It is essential to clarify what kinds of viewpoints are rightly subject to criticism, if the United States is to successfully deliver internationally the subtle message that it protects the right to express hateful viewpoints, but criticizes their content. What precisely merits government criticism in the video? One option is to criticize it as being blasphemous.
But blasphemy is the wrong frame of criticism. Our free speech and religious freedom traditions require that the state not take a position on which religions are false and which are true. That is the core idea of our ban on the establishment of religion. But blasphemy takes a side in disputes between religions. This is not a perspective that we can endorse. Citizens must not only be free from coercion but also free from state criticism if they assert the truth of one religion and the falsity of others.
The content of Innocence of Muslims is not merely about asserting the "falsity" of Islam and the truth of another religion. Instead, it is filled with hostility towards the Muslim people as child molesters. It is analogous to the famous blood libel, myths about Jewish ritual used to slander the Jewish people as a whole. The blood libel is anti-Semitic hate speech masked as criticism of religious practice. Similarly, Innocence of Muslims claims to criticize religious practice but it actually aims to disparage the Muslim people. The video should be regarded as a form of hate speech against Muslims.
The United States government should articulate why our tradition of free speech and religious freedom is founded upon an ideal of equal respect. That ideal is violated by the anti-Muslim video. The government has a duty to articulate why the right to free speech is protected in the case of the video, even though it condemns the video’s message. This can clarify for an international audience that the state’s protection of hateful expression does not imply approval of the content of that expression.
The State Department adopted this response when it aired ads in Pakistan to quell riots there. The videos show President Obama and Hillary Clinton giving an official defense of our free speech traditions while condemning the video. They took neither a neutralist nor a prohibitionist approach to hate speech, but a third approach: "democratic persuasion." They defended free speech protection for the videos. Yet they made use of state speech to clarify that the protection does not imply approval or indifference towards the message in the video. Instead, they articulated that protection of the right of free speech was based on the value of equal respect. They clarified that the same values that lead us to protect hate speech also can lead us to condemn it.
With the lens of this third view of "democratic persuasion," we can see the State Department ads as a principled defense of democratic values, and as neither an apology nor a pragmatic concession to the need to quell the riots. Of course the violence abroad provided an impetus for these advertisements. But rightly understood, the aim to protect and criticize hate speech should be a broader part of United States public diplomacy beyond the specific commercials run in Pakistan. Such a policy of democratic persuasion would articulate why we defend free speech, while condemning hateful expression.