Saturday, October 24, 2009

Fighting Words

As recently as 1949 it was illegal in some US jurisdictions to insult a fellow citizen. In Chaplinksy v. New Hamphire, the Court unanimously upheld that the town of Rochester, New Hampshire could arrest a sidewalk preacher under a statute prohibiting the utterance of "any offensive, derisive or annoying word to anyone who is lawfully in any street or public place...or to call him by an offensive or derisive name." This was a landmark test of what is sometimes known as the "fighting words doctrine," which limits speech that may "reasonably incite the average person to retaliate."

Subsequent test cases in 1969, 1972, 1992, and 1999, have narrowed the doctrine nearly out of existence. (It is worth noting that in most cases the statutes were meant, in theory or practice, to restrict opprobrium directed at police officers). The fighting words doctrine is rarely applied today, even more rarely upheld, and the tenor of speech most of us encounter in our daily lives just 61 years after Chaplinsky is testimony to a rapidly changing standard of what "opprobrium" is, and how much of it, if any, constitutes "incitement."

Nevertheless, the doctrine does point to an important distinction between the form and content of speech, one also indicated by numerous laws, still on the books, against "disturbing the peace." What are we to do with those? The concept seems quaint and Mayberryish today, but is it totally deprecated? It is certainly not an abridgement of protected speech that my neighbor cannot play loud music outside my window late at night, for example, whetever its merits.

When the disruption is measured in opprobrium rather than decibels, US case law sets the bar very high. In 2003 the high court ruled that public cross burning is only a crime if it can be shown that its intent was to intimidate. (Imagine, by contrast, if I could not get my neighbor to turn down his music unless I could prove he was playing it with ill-intent.)

The fighting words doctrine is based on the presumption that there is something inherently disruptive about being provoked; that being insulted or challenged to a fight breaches a personal "peace" or integrity in the same way that loud noise or bright lights do, as a kind of assault. Such notions trace back to our "honor culture" roots dating from time immemorial. This does not square well with our modern sense of ourselves as creatures of reason, raised on the maxim that "words many never hurt me," who have finally supplanted the code of honor with the code of law. But it was a mere 10 generations ago that Alexander Hamilton, "founding father" of the world's first modern democracy, was killed by Vice President Aaron Burr over the defense of his honor. Just 42 years ago, in the year of my birth, two French members of Parliament "settled" an insult with their rapiers (neither was seriously hurt.) The "winner" was a socialist.

Can we, who in living memory banned Lolita and Lady Chatterly's Lover, criminalized personal insults in the public square, and even settled scores at the point of a sword really afford to be cavalier about who can, and who cannot "take a joke"? More than once I have seen the remark (most often in blog comments) that the recent attack on Kurt Westergaard's life proves he was onto something when he implied Muslims were violent in his cartoon. This (if it were true) would present serious problems for the free speech defense, which relies on a common agreement that words are not harmful, that honor is subservient to free expression--an agreement we were not expected to have made in the West just 60 short years ago.

Indeed, race-baiting is an age-old justification for bigotry. The undisputed masters of it were the Nazis, but we shouldn't use the extremity of the example to pretend that any of us are not capable of it (which is, after all, just a more subtle version of race baiting, as Will Self recently observed).

If I am perceived as going back on my earlier words that Kurt Westergaard was not to blame for the attack on his life, let me re-affirm that he is not. No mechanism of incitement that I am aware of takes 3 years to percolate, for one thing. And even if the attacker's response had been instantaneous, he is just as responsible for understanding that a code of honor (if it was this that motivated him, and not, as seems more likely, an organized attempt at sowing terror and intimidation) does not obtain in Denmark. We live in more sophisticated times than that.

Rather I am trying to draw out the possibility, which I find very plausible, that free speech and rule of law are a rationalization in this case for a type of combat that is being carried out in a much more atavistic idiom, with the intent not (primarily) to criticize, but to retaliate and shame. Such an interpretation would not weaken the protections of speech and safety Westergaard enjoys as a Danish citzen, but it might provide a more honest look at the dynamics of the tensions between the Islamic world and secular modernity.

I'll close with a quote from Talel Asad from a paper I have earlier cited:
The problem of blasphemy... is a European obsession. For a secular society that doesn’t acknowledge the existence of such a thing as blasphemy it is quite remarkable how much public discourse there is about it – and about those who complain of it or claim to be affronted by it. Quite remarkable, too, is the obsessive need to repeat again and again the words and images that secularists think will be regarded as blasphemy. Who, one might wonder, are these defenders of worldly criticism trying to convince? It is too simple, I think, to claim – as some Danish commentators have done – that the publication of the cartoons merely sought to overcome the crippling fear that Europeans had of criticizing Muslims. But there is certainly something complicated going on beyond the courageous demonstration of political freedom, something that has to do with the attempt at re-assuring the limitless self.


Liberal Europeans have repeatedly said that modernity – their modernity – consists precisely in the continuous re-creation of individual experience and political-economic futures through the exercise of auto-critique, yet in the case of their relationship to European Muslims a limit seems to have been reached, a limit that is insupportable. Their conception of criticism is motivated by the dark face of religion, ours by secular debate, democratic openness, and joyous satire; their anger undermines freedom, ours informs its defense; they seek to impose limits (in the idea of blasphemy), we overcome them (by secular critique).

Sunday, October 11, 2009

On Umbrage, Part 3: Blasphemy

This is the concluding post in a 3-part series. Read Part 1, and Part 2.

“What is Blasphemy Today?” is the question of the week at Andrew Brown's CiF Belief site at The Guardian. In the gloss is a question that has lay beneath the surface in my last two posts (and that came up for air in comments). Brown writes:
Civilization seems to depend on a balance between unwillingness to take offense and reluctance gratuitously to give it. But where do we draw the line?
Unfortunately I think that a word like blasphemy, with all its archaic, pre-modern connotations, acts as a signal that the issue is one we don't really have to take seriously: Modernism has outgrown blasphemy; the rest of the world will catch up if they want to participate in Western civilization. The problem is that blasphemy is actually a very inadequate word to describe the issue, because it seems to imply a special privilege for religious adherents. Why, ask secularists, should the religious have a special protection of speech unavailable to the rest of us? Modernity is about the leveling of the playing field, and giving up outre notions of blasphemy we argue, is the price of admission.

But it is important to recognize that in the wake of the Danish Muhammad cartoons the word blasphemy was not introduced into discussion by those Muslims said to take offense, but by the Western press. According to an analysis by anthropologist Talel Asad1, the Islamic words most commonly translated as blasphemy (tajd_f, meaning to scoff at God's bounty, kufr, meaning unbelief, ridda, meaning apotasy, and ilh_d, meaning heresy) do not in fact apply to non-believers, and were not used by Arabic speakers in response to the Danish cartoons. Those that were used conveyed the type of secular offense we might feel when we or someone we love is slandered or sullied. Is_'ah, for example, which means "insult," is the word that was used by the World Union of Muslim Scholars in their complaint.

Our English word blasphemy has the Greek root blasphemeo, "to injure a reputation." We also get our word “blame” from this root. It is essentially a synonym with “slander,” a word with Latin roots. The reason one has ecclesiastical connotations and the other does not, has mostly to do with historical vicissitudes, similar to the ones that gave us the Saxon words “pig” and “cow” for livestock, and the French words “bacon” and “beef” for the same animals on our plates.

If we rephrase the question, then, “What is Slander, or Defamation Today?” we get a much more straightforward answer. Certain kinds of defamation, such as libel, are actionable by law in secular modern society. Others have less formal recourse, like the demand for an apology after an ad hominem attack. They are hardly foreign, outmoded concepts. We negotiate them daily. And, crucially, free speech is not an adequate defense for their violation.

Here we come up against the problem cited above. How can we simultaneously employ critique in the service of our values, like justice, freedom, and truth, while simultaneously denying it access to our highest (most sacred) places of value? How can we “rationalize” our highest values without exposing them to criticism--even mockery, if necessary? And yet, how can we perpetuate their value without protecting them from such assaults?

Intellectually, the problem seems silly. The truth always survives scrutiny, no worse for wear. If a thing of value cannot survive criticism, it never was meant to be exalted. But not all criticism is created equal. Generally speaking, it cannot be too personal. I can perhaps critique broad ideas of female sexuality in a painting or photograph. But if I want to make the “statement” that I think your sister is a slut by painting a lewd billboard of her across from your house, I have crossed from critique into defamation, by moving from the abstract to the particular.

To atheists and other secularists, "god" is an idea, a concept. To the religious, He, She, or It, is a relation of value. In the former context no real defamation is possible, just as one cannot defame in any visceral way the idea of democracy or equal rights (though one can infringe the rights of certain groups or individuals.) In the latter, can we imagine that critique may feel personal in the same way that it does in the case of the slander of our sister, or other loved one? We have to consider that some critiques run the risk of feeling like infringements, of in fact being infringements. However much we may disagree with the concept of copyright protection, for example, freedom of expression does not permit us to critique it by breaching it. If we want to criticize the taboo against child pornography, we are not permitted to do so by depicting it. We must adopt other modes of argument to make our point.

By calling the infringement “blasphemy,” however, we detach the realm of the religious from the kind of secular protections we take for granted. Blasphemy has no standing in secular modernity; its infringement thereby has no meaning. Ironically, the case against blasphemy often tries to cast it as a “special right,” since religious relations of value are not shared universally across cultures. We can fruitfully compare this to the attempts by religious conservatives to cast gay rights (the right to marry, the right not to be discriminated against in work or housing) as likewise“special,” because not normative.

Here for example, is Ophelia Benson, with a solicited response to the question raised this week at CiF Belief. Blasphemy, writes Benson, is a “privilege,” and an unjustified one at that.
Notions of blasphemy operate to keep religions shielded from questioning and criticism, and that's a frankly terrible arrangement. Religions are human institutions that make enormous, searching, pervasive demands on their members, backed up by the putative authority of a god or gods. This is the very last sort of institution that should be immune to criticism. (my emphasis)
Apart from the reference to the authority of gods, this could be a discussion of any number of human institutions: banks, congresses, universities, armed services, the UN. While granting that divine authority often serves to stifle dissent, we still need to ask if the kind of “shielding” this promotes is really so unique. Thomas Jefferson itemized in the Declaration of Independence a number of self-evident truths that are just as hard to refute though they don't resort to specifically divine provenance. On what grounds do you refute the "self-evident"? And the institution of criticism itself is famously immune to criticism itself, being about as subject to evaluation by such means as Epimenides (the Cretan)'s statement that “all Cretans are Liars.” Criticizing criticism is like, in Julian Jaynes' image, shining a flashlight in a dark room in search of an unilluminated spot.

It would be more accurate to say that religions have no more or less right to be criticized than other human institutions. But as we saw with Russell Blackford's remarks, there runs a sentiment that religious speech is objectively less valuable than other forms. The term Blackford used was “the right to be suspicious of religion,” which in a free society shouldn't rank any higher (or lower) than the right to be suspicious of one's corn flakes. But with secular modernity comes a self-affirming bias just as powerful as the ecclesiastical biases it usurped. Benson's version of the phrase, which she uttered to me in a pleasingly civil exchange in comments, was that the experience of taking offense “is trumped by the need to criticize religion.” (my emphasis)

What seems to have creeped in here is the implication that free speech protections are justified not by the speech act itself, but by the consequences of that speech. Criticism of religion, then, has a double warrant, firstly on grounds of freedom of expression, and secondly on grounds of its probative value. But this is troubling. If we begin to add the criterion that certain types of speech are good for us, we embark on a whole new program of censorship. Suddenly the more noble speech (from a certain point of view) like criticism of religion has more of a privilege to expression, ceteris paribus, than ignoble speech, like the Nazis marching in Skokie, or whatever most recent terrible thing some bishop or ayatollah has said. In this scheme, the spirit of freedom of expression has been abandoned. (Andrew Brown chronicles just such a double standard in action, here.)

It may be every bit as true as we hear it from Ophelia Benson and Russell Blackford that religion is backward and oppressive and antagonistic to the ethos of secular modern society. It may have no other redeeming values. But modernity cannot simultaneously take the position that free expression is a universal right, and at the same time promote a hierarchy of value for that expression. This means that when it comes time to evaluate the competing claims of freedom of speech and the right to property (as with copyright), or propriety (as with libel), or privacy, or the right to a fair trial, or select others, that standards as similar as possible to one another be applied. We don't peremptorily dismiss concerns that might be closely analogous to our own by deprecating them as archaic, and then congratulate ourselves for defending liberal doctrines of fairness and equality. That would be downright medieval.

1These observations, and others inspiring my comments here, are taken from his 2006 paper, "Reflections on Blasphemy and Secular Criticism" which was published in the 2008 anthology Religion: Beyond a Concept (Hent de Vries, ed.)

Saturday, October 10, 2009

On Umbrage, Part 2

If we imagine for a moment that an international newspaper had published cartoons in 2005 depicting Obama--or Mandela--with a bone in his nose, Angela Merkel as a warted witch, or Abe Foxman as Shylock, most of us would have little trouble accepting the warrant for an apology by the editor without feeling that we were compromising our commitment to free expression.

This is not an especially original point, but it serves a solid place to stand when asking why we should specifically privilege, as Russell Blackford suggests, a right to "suspicion of religion:"
People in Western democracies (or, arguably, anywhere else) should have every right to be suspicious of religion, or of a particular religion, and the right to express their suspicion in whatever form they find most natural - including by way of satire or mockery. They should then have the right to stick to their guns and refuse to apologise, even if somebody takes offence.


[Holm] would do better to stand up for the right of Danes such as Westergaard to be suspicious of religion - and to express it openly if it's what they feel.
If Danes, or any of us, have a "right to be suspicious" of religion, it is only as a particular instance of the right to believe (or feel) whatever we like. It is not any more intrinsically noble than the right to be suspicious of foreigners, or infidels; of Communists, or gays, or anyone different from oneself. This is the bargain of pluralistic modernity: such rights are universal, and substitutable. What we allow to one we must allow to all, however heinous to our sensibilities.

Closely associated with the right to belief is the right to expression, though the transition between them is marked by certain restrictions, depending on the jurisdiction. In most cases, copyright infringement, child pornography and incitement to violence are not allowed in expression, though they cannot be dislodged from private belief.

But there is, in the democratic modernist tradition, no specific appeal to "suspicion" that allows us to defend some offensive remarks and condemn others. If suspicion is our warrant, then it applies as equally to the paranoid schizophrenic as to the anti-religious secularist. The attitude that holding Muhammad in piety as a prophet directly leads to acts of terrorism is not distinguishable from the attitude that that black skin correlates to barbarity or low IQ, homosexuality to promiscuity, or gypsy "blood" to thievery.

So it is too with the "right to offend" which often comes up alongside this topic. We all have it, and it cannot be taken away. But neither can it be selectively applied to our pet biases. We have no greater right to offend than the worst among us. I've fought in my share of flame wars, and don't have enough hairs on my head to count the number of times one disputant has asked another to "take back" some ad hominem remark. Often enough the request comes from the same people who now deny those offended by the Muhammad cartoons any such claim.

The truth is that none of us, aside from possibly a few random sociopaths, really believes that civility must always take a back seat to the right to expression. We all want to be treated with respect, and while we tolerate breaches in the observance just to get through the day in a society of imperfect persons, we also all have a breaking point, where we must finally insist on a shred of dignity. You may be suspicious of my breaking point, and I yours. Perhaps you're faking, to get ahead in the argument, or perhaps I am just impossibly over-sensitive. But what a lie it would be to pretend that beneath such deceits lurks no actual meaningful capacity for offense or humiliation.

Of course we have the right to "stick to our guns" and refuse to apologize when we have offended someone. Some amount of offense is unquestionably a good thing, especially if it leads to greater reflection and understanding, as with satire. But here we can take some inspiration from the apology's etymological forebear, the apologia, which sidesteps blame for the umbrage taken, in order to try to improve understanding of the intention. Here's New Yorker editor David Remnick in a Huffington Post interview just after the "fist bump" cover in 2008:
Normally I'd want the work to speak for itself — normally I'd not want to explain jokes, or short stories, or a piece of non-fiction that we publish — people always read things the way they're going to read them. In this case, since I see that it's stirred the pot somewhat, and some people have misinterpreted it very quickly, I'm talking to you. The image tries to be as clear a possible the title tries to make sure of that.


I respect people's reactions — I'm just trying to as calmly and as clearly as possible talk about what this image means and what it was intended to mean and what I think most people will see — when they think it through — that it means. The fact is, it's not a satire about Obama - it's a satire about the distortions and misconceptions and prejudices about Obama.
New Statesman editor Peter Wilby, in responding to a highly criticized 2002 cover, rightly saw the perception of antisemitism as an obstacle to the editorial remarks his magazine had intended:
We (or, more precisely, I) got it wrong. The cover was not intended to be anti-Semitic; the New Statesman is vigorously opposed to racism in all its forms. But it used images and words in such a way as to create unwittingly the impression that the New Statesman was following an anti-Semitic tradition that sees the Jews as a conspiracy piercing the heart of the nation. I doubt very much that one single person was provoked into hatred of Jews by our cover. But I accept that a few anti-Semites (as some comments on our website, quickly removed, suggested) took aid and comfort when it appeared that their prejudices were shared by a magazine of authority and standing. Moreover, the cover upset very many Jews, who are right to feel that, in the fight against anti-Semitism in particular and racism in general, this magazine ought to be on their side.(My emphasis)
In October 2009, Kurt Westergaard, too, tried to effect a sort of apologia, but note the difference in tone:
My cartoon was construed as an attempt to hurt the feelings of every Muslim in the world. That was never my intention. My picture was an attempt to expose those fanatics who have justified a great number of bombings, murders and other atrocities with reference to the sayings of their prophet. If many Muslims thought that their religion did not condone such acts, they might have stood up and declared that the men of violence had misrepresented the true meaning of Islam. Very few of them did so. (my emphasis)
This bears a passing resemblance to the defense, in having perpetuated a stereotype, that one was only trying to make a point about some Jews, or some blacks, though the stereotype itself makes no such distinction. Westergaard cannot stop himself, in the bolded passage from calling out those he has offended for not differentiating themselves enough from terrorists. Who's "blaming the victim" now? In fact his langauge ("if... /they might...") seems to betray a suspicion that despite their protest, "many Muslims" do condone terrorist acts in the name of Islam, despite his earlier insistence that he was editorializing only about "fanatics."

It is probable that Westergaard is just confused, and has not fully worked out his thoughts and feelings about Muslims. My intention here is not to take him to task for that, but to ask if civility and free speech are really at such odds that we must pit them against each other in a zero-sum contest. Is it not possible to condemn specific expressions, and even ask for their retraction, without being accused of censorship? Are there not certain things that should not have been said, regardless of our right to say them? If we cannot discuss these things in hindsight, then it will be all that much more difficult to discuss them in foresight, leaving us in the position of having to compulsively say everything that we are able, without evaluating our own motives, and any possible consequences.

Tuesday, October 06, 2009

On Umbrage

I agree with Russell Blackford that journalist Nancy Graham Holm is wrong to put the blame on Danish cartoonist Kurt Westergaard for the attempt on his life last week. The attempted murderer had recourse to every bit as much free will as Westergaard did when drawing the cartoon, however much that may be. The law protects Westergaard's free speech, and rightly so, and there is no provision to justify his attacker's assault, which was coolly premeditated.

However, I think that the explicit analogy Russell (and his commenters) make to other "innocent" victims of assault paints a distorted picture of the dynamics of the Jyllands-Posten affair.

It is a fact of the world that we in Western democracies share it with hundreds of millions in honor societies who are in direct dialogue and communication with us through globalized media, though the conversation tends to be fairly one-sided. This is perhaps to be deplored, especially the last part. But are we doing all we can to communicate why it is to be deplored? The appeals to free speech that pertain to this conflict generally presume it is self-evident, as it is many of us. It is less so to those who did not grow up praising its virtues.

In Islam and Democracy, Fatima Mernessi writes of a deep distrust of Western Democracy in Arab societies, conjuring as it does memories of the Kharijite "seceders" of the early Caliphate. The Kharijites bore many superficial resemblances to the revolutionaries of Jacobin France and Colonial America, advocating, often through violent means, the right of the people to oppose unjust or corrupt rule. Unlike the revolutionaries of America and France (and so many others that followed), the Kharijites were on the wrong side of history. As a result, the word "Kharijite" has the same connotations through most of the Arab-speaking world that anarchist or vigilante does in Western lands. (If we want to relate to these sentiments we can easily recall our own trials with secessionist movements and so-called "states rights." Establishing what "the people" want in a democratic society has never been easy to define, or apply.)

Western Democracy is, of course, not a very accurate analogy to Kharijism, which had very little to do with Droits des Hommes and human rights, generally. But the association persists, perhaps helped along by the fact that, historically, Western Democracies have been reluctant to promote those same values outside their borders as within. Declarations of "universal human rights" are bound to sound more hollow in the ears of those who remember that it was a Western "Democracy" that carved up the Ottoman Empire into client states, another that installed the Shah of Iran. Paraphrasing their uneasy neighbors, it might be an understandable question to ask about democracy, what's in it for the Arabs?

There's a good answer to that question. But has it been given? This is a separate issue from whether Westergaard had a right to publish his cartoon, as of course he did. Westergaard was not the cause, in some deterministic way, of the attempt on his life. But neither does he exist entirely removed from the web of causation that led to it. Singling out only free speech concerns, as Blackford does in his piece (and as Hitchens does, here) evades a consideration of the great and ongoing conflict of which the Jylland-Postens affair was a symptom. This conflict has less to do with religion, generally, or with specific religions, than it does with competing definitions of what is, and should be, held sacred.

This is a complex context which Westergaard does not engage by going on speaking tours about the Muhammad cartoon affair with the rather self-congratulatory message that "Muslims need to develop a sense of humor." Perhaps they do. But is there no part of us that can sympathize with the tendency to take umbrage? (I speak here of only a civil, lawful umbrage). Blackford spends a few sentences expressing empathy for Westgaard's 5-year old granddaughter who was present at the time of the attack. In doing so he appeals to our universal sense that there is something sacred about innocence and childhood that needs to be protected. It is not difficult to imagine, if we wish, a cartoon which would depict a violation of those values. It is harder to imagine any newspaper running them. It is harder still to imagine that any of Westergaard's defenders would appreciate being told they have no right to be offended by such depictions.

It detracts nothing from the virtue of free speech to point out that in every society it must be contextualized; it must have limits. These limits are not easy to proscribe, and I don't argue here that any should have been applied to censor the Jyllands-Posten cartoons. I merely wish to point out that to some readers in and outside Denmark, some of these cartoons constituted the same proportion of offense as the worst things we can imagine being printed or broadcast, and which are in fact commonly regulated in Democracies, if not altogether banned, for the common good. Blasphemy is not a subspecies of obscenity in our dominant culture, but to many others it remains one, and we don't improve our understanding of the problems we face in trying to expand and enlarge the protection of human rights by pretending this is not so.

Nancy Graham Holm makes this point clumsily in her Guardian article, along the way appearing to unjustly blame Westergaard for the attempt on his life, and needlessly characterizing Danes as generally bigoted toward religious Muslims. But her argument is not totally without merit. It is true that "intentional humiliation is an aggressive act," and whether or not it is defensible by law is not our only concern when considering how to promote greater harmony and human rights not just in our own privileged enclaves, but worldwide.