Saturday, March 25, 2006
Liberalism is My God, and Dworkin is its Prophet
I reprint here a short essay by Ronald Dworkin on the subject of the Danish cartoons of Muhammad. Since the piece is available free online at the link shown above, and this is not a commercial site, I assume I am not committing any copyright infringement - but it is more convenient if I reprint it. The title is not too exaggerated. In fact, I have never read anything by Ronald Dworkin with which I have not agreed. This piece is not his best reasoned, perhaps - it's much shorter than his usual writings - but in essence I think it is quite correct. At the end, I will add a note of my own.
The Right to Ridicule
By Ronald Dworkin
The British and most of the American press have been right, on balance, not to republish the Danish cartoons that millions of furious Muslims protested against in violent and terrible destruction around the world. Reprinting would very likely have meant—and could still mean—more people killed and more property destroyed. It would have caused many British and American Muslims great pain because they would have been told by other Muslims that the publication was intended to show contempt for their religion, and though that perception would in most cases have been inaccurate and unjustified, the pain would nevertheless have been genuine. True, readers and viewers who have been following the story might well have wanted to judge the cartoons' impact, humor, and offensiveness for themselves, and the press might therefore have felt some responsibility to provide that opportunity. But the public does not have a right to read or see whatever it wants no matter what the cost, and the cartoons are in any case widely available on the Internet.
Sometimes the press's self-censorship means the loss of significant information, argument, literature, or art, but not in this case. Not publishing may seem to give a victory to the fanatics and authorities who instigated the violent protests against them and therefore incite them to similar tactics in the future. But there is strong evidence that the wave of rioting and destruction—suddenly, four months after the cartoons were first published —was orchestrated by Muslim leaders in Denmark and in the Middle East for larger political reasons. If that analysis is correct, then keeping the issue boiling by fresh republications would actually serve the interests of those responsible and reward their strategies of encouraging violence.
There is a real danger, however, that the decision of the British and American press not to publish, though wise, will be wrongly taken as an endorsement of the widely held opinion that freedom of speech has limits, that it must be balanced against the virtues of "multiculturalism," and that the Blair government was right after all to propose that it be made a crime to publish anything "abusive or insulting" to a religious group.
Freedom of speech is not just a special and distinctive emblem of Western culture that might be generously abridged or qualified as a measure of respect for other cultures that reject it, the way a crescent or menorah might be added to a Christian religious display. Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be.
Ridicule is a distinct kind of expression; its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended. That is why cartoons and other forms of ridicule have for centuries, even when illegal, been among the most important weapons of both noble and wicked political movements.
So in a democracy no one, however powerful or impotent, can have a right not to be insulted or offended. That principle is of particular importance in a nation that strives for racial and ethnic fairness. If weak or unpopular minorities wish to be protected from economic or legal discrimination by law—if they wish laws enacted that prohibit discrimination against them in employment, for instance—then they must be willing to tolerate whatever insults or ridicule people who oppose such legislation wish to offer to their fellow voters, because only a community that permits such insult as part of public debate may legitimately adopt such laws. If we expect bigots to accept the verdict of the majority once the majority has spoken, then we must permit them to express their bigotry in the process whose verdict we ask them to accept. Whatever multiculturalism means—whatever it means to call for increased "respect" for all citizens and groups—these virtues would be self-defeating if they were thought to justify official censorship.
Muslims who are outraged by the Danish cartoons note that in several European countries it is a crime publicly to deny, as the president of Iran has denied, that the Holocaust ever took place. They say that Western concern for free speech is therefore only self-serving hypocrisy, and they have a point. But of course the remedy is not to make the compromise of democratic legitimacy even greater than it already is but to work toward a new understanding of the European Convention on Human Rights that would strike down the Holocaust-denial law and similar laws across Europe for what they are: violations of the freedom of speech that that convention demands.
It is often said that religion is special, because people's religious convictions are so central to their personalities that they should not be asked to tolerate ridicule of their beliefs, and because they might feel a religious duty to strike back at what they take to be sacrilege. Britain has apparently embraced that view because it retains the crime of blasphemy, though only for insults to Christianity. But we cannot make an exception for religious insult if we want to use law to protect the free exercise of religion in other ways. If we want to forbid the police from profiling people who look or dress like Muslims for special searches, for example, we cannot also forbid people from opposing that policy by claiming, in cartoons or otherwise, that Islam is committed to terrorism, however misguided we think that opinion is. Certainly we should criticize the judgment and taste of such people. But religion must observe the principles of democracy, not the other way around. No religion can be permitted to legislate for everyone about what can or cannot be drawn any more than it can legislate about what may or may not be eaten. No one's religious convictions can be thought to trump the freedom that makes democracy possible.
My addendum has to do with the question of Holocaust denial. In Canada, this issue has been tested. In the Zundel case, the Supreme Court held that the criminal offence of "spreading false news" was an unjustifiable violation of the freedom of expression guaranteed by our Charter of Rights, and declared it of no force and effect. So, it is permissible here to deny the Holocaust, as Zundel did, even if you know that to be false. Of course, in Germany and other European countries, it is an offence, and Zundel in fact has been charged with that offence there for the same conduct as he engaged in here. (As I write, he is, I believe, still on trial; but he may already have been convicted. The English historian David Irving was also recently convicted.)
But this is not the proper analogy to the cartoons. To deny the Holocaust is to distort the historical record - indeed, to tell lies. The equivalent in this context would be to declare that Muhammad as a person never existed, that he was an invention of later commentators. And the answer to such a claim, just as the answer to a claim that the Holocaust never happened, is to point to the historical record - extensive, in the case of the Holocaust - to disprove the false claim.
On the other hand, we also have in Canada the offence of "wilful promotion of hatred", contrary to s. 319(2) of the Criminal Code. Its constitutionality was upheld in the case of Keegstra. It requires (a) wilfully; (b) promoting hatred; (c) against any identifiable group; (c) by communicating statements; (d) other than in private communication. [These letters are not in the section; I have added them for explanatory purposes.] "Wilfully" means that the accused have the intention to cause the prohibited consequence. By s. 319(3), there are four defences to this crime: (a) that the statements are true, the onus to prove this being on the accused; (b) that they were a good faith attempt to establish an opinion on a religious subject or an opinion based on a belief in a religious text; (c) that they were relevant to a subject of public interest, discussion was in the public interest, and the accused on reasonable grounds believed them to be true; and (d) good faith irony [my wording]. The definitions of "communicating" and "statements" are broad. The definition of "identifiable group" in s. 318 is adopted: "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation." A prosecution under s. 319(2) may not be instituted without the consent of the Attorney General of the province.
Note, as an aside, that the second defence gives special protection to religious views. For example - and I think that Parliament had this example specifically in mind - if a Christian fundamentalist were to say that homosexuals were evil and deserved to go to Hell because the Bible condemns sodomy, and if he honestly believed this, he could not be convicted - even if he knew that by saying this he was promoting hatred against homosexuals.
Would publication of the Danish cartoons in Canada be punishable as a crime, even assuming a malicious intent on the part of the publisher? Clearly not; and in fact Ezra Levant, who published them in the Weekly Standard in Alberta, was not prosecuted for it. For one thing, the meaning of the "statements" is not entirely clear. What is clear, in my view, is that the cartoons - and the meaning of a cartoon is usually subject to interpretation - are not saying that Muhammad was a terrorist. What some of them seemed to say is that currently, Islam (represented by Muhammad, its symbol) has been hijacked by terrorists; or that radical or fundamentalist Islam is inherently violent. I think a person might reasonably hold the latter view; and there is no doubt that this opinion is a subject of public interest, and discussion of it is in the public interest.
What of the fact that the cartoons depicted an image of Muhammad, and that this is contrary to orthodox Islam and offensive per se to Muslims? Tough. That's their religion, and they can censure other Muslims who break that rule. They certainly can't tell non-Muslims not to do it, any more than a Jew can tell gentiles that they can't eat pork because her religion tells her not to. But what if I draw Muhammad just to offend you, a Muslim? Okay, I've offended you. That's not the same thing by any means as promoting hatred against you.
What would be? Well, if I were to suggest that Muslims were by nature a vile, depraved lot of people, uncivilized, naturally prone to violence, incapable of governing themselves or modernizing - and if I said this to encourage other people to hold them in contempt (it's hard to imagine why else I would say all of that) - I think this would qualify. Likewise, if I were to say not merely that the Holocaust didn't happen, but that "the Jews" fabricated it in order to get reparations and make the West feel guilty so that they would look the other way when the Jews ran roughshod over the Palestinians and created the State of Israel - I think this would qualify.
But even here we must be careful. We might all agree that the former parts of those two statements are outrageous and deserving of punishment, and yet we might also feel that the latter parts are political opinions worth debating - even if they are grossly offensive to their subjects. It then becomes a question of balancing harms and benefits, and it's not an easy exercise. On the whole, it's probably better in most cases to err on the side of licence, of allowing a very wide range of permissible public speech.
But on the question of ridicule, there is no question. If I want to draw the Emperor with no clothes, or Jesus in a bustiere, or Muhammad with a bomb on his head, or Moses as a pawnbroker, I should be allowed to do so. And if you don't like it, too bad.
The Right to Ridicule
By Ronald Dworkin
The British and most of the American press have been right, on balance, not to republish the Danish cartoons that millions of furious Muslims protested against in violent and terrible destruction around the world. Reprinting would very likely have meant—and could still mean—more people killed and more property destroyed. It would have caused many British and American Muslims great pain because they would have been told by other Muslims that the publication was intended to show contempt for their religion, and though that perception would in most cases have been inaccurate and unjustified, the pain would nevertheless have been genuine. True, readers and viewers who have been following the story might well have wanted to judge the cartoons' impact, humor, and offensiveness for themselves, and the press might therefore have felt some responsibility to provide that opportunity. But the public does not have a right to read or see whatever it wants no matter what the cost, and the cartoons are in any case widely available on the Internet.
Sometimes the press's self-censorship means the loss of significant information, argument, literature, or art, but not in this case. Not publishing may seem to give a victory to the fanatics and authorities who instigated the violent protests against them and therefore incite them to similar tactics in the future. But there is strong evidence that the wave of rioting and destruction—suddenly, four months after the cartoons were first published —was orchestrated by Muslim leaders in Denmark and in the Middle East for larger political reasons. If that analysis is correct, then keeping the issue boiling by fresh republications would actually serve the interests of those responsible and reward their strategies of encouraging violence.
There is a real danger, however, that the decision of the British and American press not to publish, though wise, will be wrongly taken as an endorsement of the widely held opinion that freedom of speech has limits, that it must be balanced against the virtues of "multiculturalism," and that the Blair government was right after all to propose that it be made a crime to publish anything "abusive or insulting" to a religious group.
Freedom of speech is not just a special and distinctive emblem of Western culture that might be generously abridged or qualified as a measure of respect for other cultures that reject it, the way a crescent or menorah might be added to a Christian religious display. Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be.
Ridicule is a distinct kind of expression; its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended. That is why cartoons and other forms of ridicule have for centuries, even when illegal, been among the most important weapons of both noble and wicked political movements.
So in a democracy no one, however powerful or impotent, can have a right not to be insulted or offended. That principle is of particular importance in a nation that strives for racial and ethnic fairness. If weak or unpopular minorities wish to be protected from economic or legal discrimination by law—if they wish laws enacted that prohibit discrimination against them in employment, for instance—then they must be willing to tolerate whatever insults or ridicule people who oppose such legislation wish to offer to their fellow voters, because only a community that permits such insult as part of public debate may legitimately adopt such laws. If we expect bigots to accept the verdict of the majority once the majority has spoken, then we must permit them to express their bigotry in the process whose verdict we ask them to accept. Whatever multiculturalism means—whatever it means to call for increased "respect" for all citizens and groups—these virtues would be self-defeating if they were thought to justify official censorship.
Muslims who are outraged by the Danish cartoons note that in several European countries it is a crime publicly to deny, as the president of Iran has denied, that the Holocaust ever took place. They say that Western concern for free speech is therefore only self-serving hypocrisy, and they have a point. But of course the remedy is not to make the compromise of democratic legitimacy even greater than it already is but to work toward a new understanding of the European Convention on Human Rights that would strike down the Holocaust-denial law and similar laws across Europe for what they are: violations of the freedom of speech that that convention demands.
It is often said that religion is special, because people's religious convictions are so central to their personalities that they should not be asked to tolerate ridicule of their beliefs, and because they might feel a religious duty to strike back at what they take to be sacrilege. Britain has apparently embraced that view because it retains the crime of blasphemy, though only for insults to Christianity. But we cannot make an exception for religious insult if we want to use law to protect the free exercise of religion in other ways. If we want to forbid the police from profiling people who look or dress like Muslims for special searches, for example, we cannot also forbid people from opposing that policy by claiming, in cartoons or otherwise, that Islam is committed to terrorism, however misguided we think that opinion is. Certainly we should criticize the judgment and taste of such people. But religion must observe the principles of democracy, not the other way around. No religion can be permitted to legislate for everyone about what can or cannot be drawn any more than it can legislate about what may or may not be eaten. No one's religious convictions can be thought to trump the freedom that makes democracy possible.
My addendum has to do with the question of Holocaust denial. In Canada, this issue has been tested. In the Zundel case, the Supreme Court held that the criminal offence of "spreading false news" was an unjustifiable violation of the freedom of expression guaranteed by our Charter of Rights, and declared it of no force and effect. So, it is permissible here to deny the Holocaust, as Zundel did, even if you know that to be false. Of course, in Germany and other European countries, it is an offence, and Zundel in fact has been charged with that offence there for the same conduct as he engaged in here. (As I write, he is, I believe, still on trial; but he may already have been convicted. The English historian David Irving was also recently convicted.)
But this is not the proper analogy to the cartoons. To deny the Holocaust is to distort the historical record - indeed, to tell lies. The equivalent in this context would be to declare that Muhammad as a person never existed, that he was an invention of later commentators. And the answer to such a claim, just as the answer to a claim that the Holocaust never happened, is to point to the historical record - extensive, in the case of the Holocaust - to disprove the false claim.
On the other hand, we also have in Canada the offence of "wilful promotion of hatred", contrary to s. 319(2) of the Criminal Code. Its constitutionality was upheld in the case of Keegstra. It requires (a) wilfully; (b) promoting hatred; (c) against any identifiable group; (c) by communicating statements; (d) other than in private communication. [These letters are not in the section; I have added them for explanatory purposes.] "Wilfully" means that the accused have the intention to cause the prohibited consequence. By s. 319(3), there are four defences to this crime: (a) that the statements are true, the onus to prove this being on the accused; (b) that they were a good faith attempt to establish an opinion on a religious subject or an opinion based on a belief in a religious text; (c) that they were relevant to a subject of public interest, discussion was in the public interest, and the accused on reasonable grounds believed them to be true; and (d) good faith irony [my wording]. The definitions of "communicating" and "statements" are broad. The definition of "identifiable group" in s. 318 is adopted: "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation." A prosecution under s. 319(2) may not be instituted without the consent of the Attorney General of the province.
Note, as an aside, that the second defence gives special protection to religious views. For example - and I think that Parliament had this example specifically in mind - if a Christian fundamentalist were to say that homosexuals were evil and deserved to go to Hell because the Bible condemns sodomy, and if he honestly believed this, he could not be convicted - even if he knew that by saying this he was promoting hatred against homosexuals.
Would publication of the Danish cartoons in Canada be punishable as a crime, even assuming a malicious intent on the part of the publisher? Clearly not; and in fact Ezra Levant, who published them in the Weekly Standard in Alberta, was not prosecuted for it. For one thing, the meaning of the "statements" is not entirely clear. What is clear, in my view, is that the cartoons - and the meaning of a cartoon is usually subject to interpretation - are not saying that Muhammad was a terrorist. What some of them seemed to say is that currently, Islam (represented by Muhammad, its symbol) has been hijacked by terrorists; or that radical or fundamentalist Islam is inherently violent. I think a person might reasonably hold the latter view; and there is no doubt that this opinion is a subject of public interest, and discussion of it is in the public interest.
What of the fact that the cartoons depicted an image of Muhammad, and that this is contrary to orthodox Islam and offensive per se to Muslims? Tough. That's their religion, and they can censure other Muslims who break that rule. They certainly can't tell non-Muslims not to do it, any more than a Jew can tell gentiles that they can't eat pork because her religion tells her not to. But what if I draw Muhammad just to offend you, a Muslim? Okay, I've offended you. That's not the same thing by any means as promoting hatred against you.
What would be? Well, if I were to suggest that Muslims were by nature a vile, depraved lot of people, uncivilized, naturally prone to violence, incapable of governing themselves or modernizing - and if I said this to encourage other people to hold them in contempt (it's hard to imagine why else I would say all of that) - I think this would qualify. Likewise, if I were to say not merely that the Holocaust didn't happen, but that "the Jews" fabricated it in order to get reparations and make the West feel guilty so that they would look the other way when the Jews ran roughshod over the Palestinians and created the State of Israel - I think this would qualify.
But even here we must be careful. We might all agree that the former parts of those two statements are outrageous and deserving of punishment, and yet we might also feel that the latter parts are political opinions worth debating - even if they are grossly offensive to their subjects. It then becomes a question of balancing harms and benefits, and it's not an easy exercise. On the whole, it's probably better in most cases to err on the side of licence, of allowing a very wide range of permissible public speech.
But on the question of ridicule, there is no question. If I want to draw the Emperor with no clothes, or Jesus in a bustiere, or Muhammad with a bomb on his head, or Moses as a pawnbroker, I should be allowed to do so. And if you don't like it, too bad.
# posted by Stephen @ 9:51 p.m. 
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Sorry, for some reason the link does not appear in the main text. Here it is:
http://www.nybooks.com/articles/18811.
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