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The ulnar outer edges of freedom of speech

Because formal rights are created – they do not grow from the ground or fall from the sky – they are fragile.


[the caricatures] Rights are created collectively. Sweat and tears flow when they occur. Some rights – human rights – we can think of as inextricably linked to being human. Yet it is certain women and men in given places, at given times, who have formulated them and given them their form. Some of these produced rights become obsolete, others live a long time. Some are the few who want it (the right to gay marriage), others there are many who want to join (the right to practice their religion without being persecuted). All of them have been created over time, when they are formulated as rights, and they have usually been created through struggle.

History shows that rights must be treated carefully. They can deteriorate or be abused. Then they can be the source of exactly what they want to prevent.

The events of the last few days have made some of this visible: Despite the fact that our dear and fundamental freedom of expression is clear and convincing at its core, we find a woolly no man's land on the edge of it. It is something very special to invoke the right to freedom of expression in these border areas – a no-man's land where the rules of action are not crystal clear, and where those who interact can bring with them very different concepts of what the rules of action are.

Old battle.

When Catholic artists caricature Jesus – and they often do – it is acknowledged that they have this right, even when they are severely criticized, and even if some governments react. The US government did this in one case. Financial support given to such an artist and to the gallery showing his works of art was withdrawn. However, these are Christians who criticize, and even attack, other Christians. It is an old battle among enemies who know each other. Is this different from the use of racist formulations from whites to blacks and from Christians to Jews? In the United States, a delicate and often problematic boundary is drawn between utterances that must be free, and utterances that can be called hate speech. The background for this border crossing lies in the United States' past as a slave-based economy, and the country's current status as a racist society in which African Americans are still second-class citizens. I accept this border crossing, and I think it is crucial, perhaps especially in situations where there are ethnic differences in latent or open conflict.

Let's move on.

The sophisticated magazine The New Yorker, which is read by a sophisticated audience, published on its front page a caricature as "nonsense" – an ambiguous term in such cases – with a specific Jewish custom. The reaction in New York was both quick and sharp, and the magazine was accused of anti-Semitism. When a politician in the United States or the United Kingdom makes blatantly racist statements, he or she is held accountable. Such speech is rarely seen as a use of free speech. It is seen as unacceptable hate speech. However, no one will demand to get the head of the editor of The New Yorker or the guilty politician on a platter, even if they will face condemnation in the media.

Eligible statements.

If we move on from hate speech: Are there circumstances in which extremely pressured situations and latent violence affect what is and what is not free expression? Would today's relationship to freedom of expression justify the publication of strongly anti-Semitic comics and caricatures from Hitler's time in power? The most considered answer has been to answer that Hitler's regime was not democratic or a support for freedom of expression, and that it is therefore not a sensible comparison. I agree with this. What about the anti-Zionist attitudes espoused by a small minority of the Muslim population, who play on historical untruths about various types of Jewish conspiracies to control the banks, cause world wars, and so on? Are there free speeches and thus justified? In this case, the most well-considered answer has been no, because it is well known that there is no basis for these accusations. I would also agree with this. What about the much-criticized and condemned decision of the American Civil Liberties Union (ACLU), which supported a demand by a neo-Nazi organization to hold a public demonstration in a small Indian town? I would agree that the ACLU was right to invoke the formal right to freedom of expression, as was done in the newspapers that published the cartoons.

What are the woolly fringes of the fundamental freedom of speech, those that are emerging today? They are characterized by the moments I have mentioned, but in a different mixing ratio.

It is crucial that we distinguish between the formal right on the one hand, and the conditions under which it is used on the other. This means that it is not right to invoke only the formal right, as the relevant newspapers and their supporters have done. More is needed to understand some of the confusion we are facing now. First, the political motives of the newspapers that published the cartoons. They are all right-wing newspapers. Secondly, the Bush administration, with its policies for the past four years, has carried on the fire that is the rage of the Muslim world – through the war in Iraq; and through the monitoring of Muslims, their visa applications to the United States being rejected, being arrested for no good reason, and so on. Thirdly – the international attention paid to the cartoons – which did not come when they were published in September last year – coincided with a new US-Muslim World Cup, in connection with Iran's nuclear energy development plan and how the country insists on its right to create nuclear energy. Iran has that right under the Vienna Convention. No matter how much we doubt Iran's assurances that the country has peaceful intentions, the West's decision to punish Iran provokes many – but not all – Muslims. Even more provocative in the Muslim world is the obvious double standard that the Bush administration and several European countries have also decided to develop nuclear energy. Fourth, regardless of these specific conditions, the boundary between free speech and hate speech may have been crossed in some of these drawings. The publication of a caricature of a bearded man representing Jehovah, who was pictured firing a rocket similar to those used to fire on Palestine, would make many Jews in Israel angry and offended. They would see such a caricature as a hate statement, not a free expression. These are gods that are not meant to be depicted by humans. Over the centuries, both Jews and Muslims have suffered many forms of persecution and aggression from Europeans. The Catholic Inquisition largely persecuted its own – the internal enemy. To caricature the Christian god in Europe, where the Christian faith dominates, is to caricature your own god. There is a difference there.

In Europe, governments, citizens and organizations criticize the use of freedom of expression to publish material that borders on hate speech. In the same way, many sensible voices have been heard in the Muslim world as well. They have condemned both the "hate speech" in these caricatures and the violent reactions of certain Muslim groups.

So what are we going to stop with all this? That the situation has become as tense as it is, shows that if we relate to a strict understanding of content, some of the caricatures (the god with the suicide bomb) are much closer to hate speech than free speech. Bush's declaration of a global war on terror is behind and colors the most insulting statements, so that they become another shot fired in the war. This is particularly true since all the newspapers involved are on the right, and the fact that the global war on terror is in itself a woolly war and is thus easily seen through ideological glasses. The result is a flammable mixture: hate speech in wartime. In wartime, some will respond to this as an attack, not as a free speech. And then the famous and tragic circle continues – more war becomes the answer to war. n

Sassen's new book Territory, Authority, and Rights: From Medieval to Global Assemblages was published in Princeton University Press in 2006.

Translated by Gro Stueland Skorpen

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