Posted tagged ‘Je Suis Charlie’

Offense, Speech, Redress

January 7, 2015

In the thread below yesterday’s post on the shootings in Paris in its Balloon Juice version, a … lively … discussion broke out around various forms of the question of provocation.  No one, I think, suggested that the murders were anything but grotesque, an expression of evil.  But several people noted that they weren’t surprised that the atrocity occurred, given the known impact of the sort of satire in which Charlie Hebdu traded.

That evoked discussion — and sharp disagreement — about the duty of respect, especially to minority views or senses of identity.  (I’m paraphrasing and drastically shrinking the discussion here.  Feel free to correct, demur, dismiss in the comments.)

My view is pretty simple.  The price to pay for living in an open society is suffering the existence and the independence of those who drive you crazy.  Sort of like being the parent of a teenager.

But I digress.

Bluntly:  the appropriate response to speech that pisses you off is speech.  Nothing else.  I am a cultural relativist in my daily work. (What is a historian, even or especially a popular historian like myself, but someone who tries to grasp that foreign country, the past, in its own terms as well as in our own time’s?)

But that relativism has limits.  It commands empathy, sympathy, the effort to understand; it does not require, or even permit any veto on thought or behavior based on the cultural demands of one group over another.

That’s why anti-abortion groups become terrorists when they shoot clinic workers.  That’s why those who provide public accommodations — bakers, for example — no more get to choose to deny a gay couple a wedding cake than they would an African American one.  And so on.

So, no.  I don’t have a lot of sympathy for the contextualization of the murder of foul mouthed, blasphemous satirists as an extreme (and — everyone agreed on this — utterly unacceptable) extension of genuine grievances.  Even if it is true that France treats its former-colonial Muslim population culpably wretchedly.  Speech is speech.  Murder is murder.  The former never ameliorates, much less excuses guilt for the latter.  It doesn’t, really, even make it comprehensible.  Those who kill over cartoons (or use a cartoon as a pretext for a killing for other ends) are neither sembables or frères

That thought is what, earlier today, led me back to one of the monuments of 2oth century American jurisprudence.  It’s only surprising that the William Rehnquist wrote the opinion in Hustler Magazine v. Falwell in light of the current debasement of the Supreme Court.  I can actually remember when the party identification of the appointing President was not a wholly reliable guide to where opinions would land.

The issue in dispute in Hustler v. Falwell was whether or not the egregious preacher was entitled to damages for emotional suffering imposed by Hustler’s publication of a mock advertisement that showed a drunken Falwell having sex with his mother in an outhouse.

As Rehnquist wrote,

There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above [works by Thomas Nast and others], and a rather poor relation at that.

Boss_Tweed,_Nast

Nonetheless, crappy, nasty, or downright mean political speech is still vital, Rehnquist and a unanimous Supreme Court (Fat Tony included!) agreed, to the point that the no-doubt sincerely pissed off Falwell had to suck it up:

If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.

Rehnquist was hardly my beau-ideal of a jurist.  But he was always strong on the first amendment.  And in this  opinion, he nailed the essence of what freedom of speech means and requires from a society that values and trusts itself:

France isn’t the US.  I can imagine a different view of what might constitute shouting “Fire!” in a crowded theater if one were in Lebanon, say, rather than the Bronx — or the Marais.  But the underlying theme in the Hustler v. Falwell opinion talllies with the way I believe free societies would choose to live.

It remains vital to have enough sympathy to be able to recognize genuine pain evoked carelessly or deliberately by speech.  It’s an important part of living well to model the best definition I’ve heard for what it means to be a gentleman:  someone who never insults another person unintentionally.

But granting the reality of grievance in the face of either deliberate or ignorant disdain, still Rehnquist had it right:

 

“[T]he 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.

Amen and amen.

The full text of the opinion follows below the jump.

Image:  Thomas Nast, Boss Tweed, before 1871.

(more…)

Advertisements