Free expression and mob rule

An allegedly anti-Islam trailer has reopened the debate on where the limits to freedom of expression should be. While the movie “Innocence of Muslims” that depicts Mohammad as a fraud, a womanizer and a pedophile has had a very limited release, it is the film’s trailer uploaded on YouTube that has caused massive unrest in Islamic societies. The unrest appears to have subsided, but at its peak, it claimed the life of no less than the US ambassador to Libya. And already, international media groups have expressed alarm that the decision of YouTube and Google to ban the trailer in certain countries, obviously in response to the outcry against it, is a “slippery slope” as far as freedom of expression is concerned. Others, though, have expressed the view that expression that prods members of a religious group to violent reaction should not be protected by freedom of expression.

While the outcry against the trailer is unprecedented in terms of the violence it has elicited, the debate on where the boundaries of expression lie is not new. In the United States, a member of Jehovah’s Witnesses who addressed a police officer as a “Goddamned racketeer” and “a damned fascist” was found guilty of violating a New Hampshire statute penalizing hate speech. In Chaplinsky v. New Hampshire, the US Supreme Court declared: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include x x x insulting or ‘fighting’ words, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

That Chaplinsky is legal basis for penalizing hate speech is disputed. Prof. Fredrick Schauer of the University of Virginia Law School argues: “In contrast to this international consensus that various forms of hate speech need to be prohibited by law and that such prohibition creates no or few free speech issues, the United States remains steadfastly committed to the opposite view. … all such speech remains constitutionally protected.”

As if to validate this view, the US Supreme Court in the subsequent case of Hustler v. Falwell appeared to have downplayed its own ruling in Chaplinsky: “Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.”

In the discourse on whether or not hate speech should be accorded protection, effort is exerted to uphold freedom of expression to the fullest degree possible. As explained by the US Supreme Court: “At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a ‘false’ idea. As Justice Holmes wrote, ‘When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market…’”

In fact, freedom of expression extends even to offensive speech: “The fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.”

This is why, although the death of Ambassador J. Christopher Stevens is to be condemned as an act of barbarity, he did not die in vain. He died as a symbol of a freedom that has made democracy worldwide possible. He died in the hands of those who are bereft of both capacity and the will to compete in the free market of ideas.

But is not inciting against a religion equally an affront on freedom of religion?

Certainly not. In our constitutional tradition, freedom of religion consists of two negative state obligations: not to endorse a religion, referred to as the nonestablishment clause; and not to interfere with its free exercise. Were the state to prohibit the showing of a film clip because it would offend a religious group, this is tantamount to endorsement of a religion which is prohibited. In any case, even caustic attacks against a religion are protected speech. Said the Philippine Supreme Court in INC v. CA: “In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.”

Without a doubt, Muslims must have a reason to be bitter about a film that they see as an affront to their most important religious figure. But the remedy in a democratic society is not to ban such a film, but for Muslims to prove in both word and deed that the affront is apparent and real. Certainly, the resort to mob rule is not the means to prevail in the free marketplace of ideas.

Harry Roque teaches constitutional and international Law at the University of the Philippines College of Law. He is also president of Media Defense Southeast Asia, a group of lawyers that defends the media and espouses freedom of expression.