Freedom of Speech – a universal value?

[The essay was originally posted at New Civilization.]

Freedom of speech is the concept that one should be able to express themselves, whatever opinion they may hold. It has never existed as an absolute, and generally the various Western philosophers and thinkers who developed the concept never considered it to be unrestricted – rather most have accepted that there have to be limits upon expression, in order to protect society. Every society has red-lines – limits upon what constitutes lawful expression – and these depend upon the values of that society, contradicting the idea of a universal absolute freedom of speech.

In the West, these limits sometimes depend upon the political considerations and historical context  – for example, holocaust denial is criminalised in Germany is understood in the context of the role of Nazi Germany in the holocaust, and the fear that permitting holocaust denial would encourage or allow for far-right ideas to gain legitimacy in the society again. Another example is the French Senate bill criminalising the denial of any genocide recognised by French law, generally considered to be targeting at Turkey with respect to the manner of identification of the conflict in Armenia in 1916. In the UK – for all practical purposes it has been recently shown that denigrating soldiers is considered unlawful, with the conviction for “grossly offensive communications” applied to someone who wrote British soldiers in Afghanistan should die and go to hell. In her ruling upon the case, Judge Goodwin stated that while the law was not there to stop legitimate political opinions being strongly voiced, the test was whether what was written was “beyond the pale of what’s tolerable in our society”.

And so as part of the political considerations, societal harmony is also taken into account in restricting what is lawful speech. Other examples include libel and slander of persons,  which are forms of expression not protected by “free speech” provisions across Europe and also in the United States, though the strength of these laws vary between countries.

The United States has perhaps the most lax laws in regards to restrictions upon speech, in particular what is referred to as “hate speech”, and is seen as the most liberal advocate for “freedom of expression”, which forms part of the first amendment of their constitution, which states that Congress shall make no law abridging the freedom of speech.

However, despite the absolute language used, Constitutional courts have historically not considered that freedom of speech is absolute. For example there are restrictions for what is known as “fighting talk”, and “clear and present danger” – which is anything the court believes could incite violence at that time. Justice Frank Murphy – a Supreme Court Judge – articulated this in 1942 stating “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 the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Therefore, there is recognition even in the United States Supreme Court, that societal considerations can limit freedom of speech.

It bears repeating that the idea of Freedom of Expression developed as a doctrine in Enlightenment Europe as a means to allow people to search for the truth, and was not held to be absolute by many philosophers such as Rousseau, who feared the societal damage that would occur if there were no limits upon what and could not be said in public.

This is in contrast to contemporary views, where in France and the United States blasphemy is permitted, and though in many European countries there is legislation criminalising blasphemy, they are rarely if ever enacted. This again goes back to the historical relationship between the Church and State, and how in the pre-enlightenment era, the Church was sometimes used as a tool for stifling political dissent and critical scientific thought. As a reaction, “freedom of speech” as a doctrine which in origin was to allow room for political dissent against autocratic regimes and to allow for critical scientific thought, also embraced the right to blaspheme over time.

However, the right to blaspheme in the West does not mean that there is absolute freedom of speech. Rather – as has been shown – it simply means that the sanctified elements of religion do not constitute red-line issues for Western society, whereas personal defamation, or denial of genocide, or offending the families of British soldiers, do constitute such red-line issues. In other words, to quote Judge Goodwin, blasphemy in the West is no longer “beyond the pale of what’s tolerable in our society”.

This is important to note as often calls to freedom of speech mask political intent under claims of adherence to a proclaimed universal value which in fact doesn’t exist in any case, and is relative according to the society in question. The case of insults against Islam highlights this – a good example would be that of the Frenchman Bernard-Henri Levy who in 2006 signed a manifesto stating that “We refuse to renounce our critical spirit out of fear of being accused of ‘Islamophobia,’ an unfortunate concept which confuses criticism of Islam as a religion with stigmatisation of its believers. We plead for the universality of freedom of expression, so that a critical spirit may be exercised on all continents, against all abuses and all dogmas”.

And so there you have an impassioned plea to the mythical universal idea of an absolute, universal “Freedom of Speech” in application to criticize Islam – which in this case, given that it was signed with Salman Rushdie – is a euphemism for insulting Islam. So while Levy claimed he didn’t like the various anti-Islamic cartoons drawn in Europe, as he stated “they are a part of a democracy and the right to blasphemy is a core, key point of freedom”. And yet Levy didn’t extend this freedom to cartoons denigrating the son of Sarkozy, claiming that they had “broken the barrier that separates humor from insult and caricature from hate” in his support for the sacking and prosecution of the cartoonist in question. Accordingly Levy himself has staked out limits upon expression, and what he defines as red-line issues, according to his own sensibilities shaped by the political, cultural and historical environment he is from.

It should therefore be quite clear, that the idea of freedom of speech as a universal absolute is a myth.

Rather, there always exist legal limits to expression that may vary according to country and context, and the values held in that society define the red-lines of expression therein. The key difference in Islamic philosophy, is that the red-lines are defined by recourse to scripture – there is no recourse to a mythical “freedom of speech”, since Islam did not evolve out of the European experience of the reformation and enlightenment. In fact, in Islam political expression is considered more than a right, it is considered a duty of the Muslim to account their political leaders. And the Quran itself encourages critical thinking in issues related to science. At the same time, there are red-lines to expression – for example it is a crime to question another person’s chastity wrongly, and if such an accusation is made without presenting four eye-witnesses to any act of indecency, then the accusers are punished. Another example is the prohibition to insult God, whether that is God as believed in by the monotheistic religion – Judaism, Christianity and Islam, or whether Gods considered false by Islam – such as the idols of Hindus, in order to avoid mutual recriminations. These red-lines preserve dignity for the citizens living under Islam, and prevent societal disharmony resulting from wanton insults and denigration.

It would therefore be incorrect to state that Islam believes in Freedom of Speech, since it has already been shown that freedom of speech is a myth utilized for political purposes. Rather, the true debate is – who defines what the red-lines in society should be, and which model presents the best solution for societal harmony and well-being.

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Dr. Reza Pankhurst is a political scientist and historian, specialising in the Middle East and Islamic movements. He received his doctorate from the London School of Economics. He was a political prisoner of the previous Mubarak regime in Egypt, spending almost 4 years in jail between 2002 and 2006. His forthcoming book is entitled “The Inevitable Caliphate?” (Hurst/ Columbia University Press 2012/3) and is available at Amazon and other retailers. He can be contacted at rezapankhurst@newcivilisation.com