Legal scholar Robert Post says publication of Muhammad cartoons, while ‘a provocative act,’ should be protected
| 21 March 2007
Carsten Juste, the Danish newspaper editor who inflamed parts of the Muslim world by publishing 12 cartoons of the prophet Muhammad in September 2005, offered this mea culpa to The New York Times the following January: “If I had known that the lives of Danish soldiers and civilians would be threatened, if I had known that, as my finger hovered one centimeter above the send button for publishing the drawings, would I have hit it? No. No responsible editor would have done.”
In fact, the consequences of pressing that button transcended mere threats: Beyond a fatwa on the cartoonists themselves, firings and even jailings of editors who chose to reprint their work, and the forced resignation of government ministers in Italy and Sweden, more than 100 people worldwide were killed in riots triggered by what some Islamic leaders called an outrage against their religion. Even in the United States, home of the First Amendment, most major news outlets declined to run the cartoons, either on ethical grounds or for fear of contributing to further violence.
Returning to campus last week as this year’s Una’s Lecturer, former Boalt Hall professor Robert Post, now David Boies Professor of Law at Yale University, said that while the decision to publish the cartoons was “in part a provocative act,” the cartoons themselves are “rather far, legally, from hate speech,” and thus deserving of protection under the laws of a democracy — including those in Europe, where the legal questions proved less cut-and-dried than they were here.
Whether one agrees or disagrees with the decision to publish such images — or any speech deemed offensive by members of religious groups — the question he hoped to address, Post said, is “how the law ought to respond to this outrage.”
Post, whose talk fell on the same night as cosmologist Stephen Hawking’s sold-out performance at Zellerbach Hall, told a smaller but no less engaged audience that while he teaches law, “my love has always been the humanities.” (This year’s Una’s Lecture was presented in conjunction with the Townsend Center’s “Forum on the Humanities and the Public World.”) Indeed, much of his presentation featured slides of visual images — including the 12 cartoons at the heart of the controversy — and quotes from an analysis of the cartoons by Art Spiegelman, author of the graphic novel Maus, whose June 2006 piece in Harper’s Magazine assigned the images grades of one to four bombs in what he termed the “fatwa bomb meter.”
“The Jyllands-Posten — a newspaper with a history of anti-immigrant bias — seemed somewhat disingenuous when it wrapped itself in the mantle of free speech to invite cartoonists to throw pies at the face of Muhammad,” Spiegelman wrote. But he called most of the cartoons “banal and inoffensive,” and charged U.S. news outlets that refused to show them with “political correctness that smelled of hypocrisy and fear.”
As Post recounted, the genesis of the controversy was a complaint from the author of a biography of Muhammad, who said he was unable to find anyone willing to illustrate his book. That led the arts editor of the Danish paper to issue invitations to the Danish Cartoon Society to submit their visions of the man considered to be Islam’s founder.
In Post’s aesthetic judgment, the results ranged from “anodyne” to “a little bizarre.” By all accounts, the most explosive of the images featured a bearded figure — presumably meant to represent Muhammad — with a bomb for a turban. Spiegelman gave it a three-bombs rating, calling it “hackneyed.”
In the paper on which he based his lecture, Post himself deemed the cartoons “certainly a good deal less vicious and racist than the anti-Semitic cartoons that routinely appear in the Arab press.” During his presentation he offered selections from a contest held in Iran in the wake of the controversy to lampoon the Nazi Holocaust.
Iran’s response, he said, was intended to show the hypocrisy of those who defended the publication of anti-Muslim images. But while it’s true that a few European countries — notably France and Germany — outlaw “Holocaust denial,” most have no such prohibition. “The charge wouldn’t stick in Denmark” or in most other Western nations, he said. A number of images demonstrated the propensity of non-Muslim publications to caricature iconic figures of other religious traditions, including Judaism and Christianity.
“This theme that the secular West has a right to criticize religion — all religions, equally — becomes a major theme in the controversy,” he explained.
Pacing the front of Barrows Hall’s Lipman Room like a trial lawyer addressing a jury, Post argued the need to consider the issues raised by the cartoons’ publication “in light of a theory of democracy, and what sort of freedom of speech we need for democracy to function.”
In the United States — where the First Amendment allows most speech to be regulated only on the basis of a showing that it would cause imminent harm — there is “no issue whatever that these cartoons would be protected speech,” Post said. In Europe, by contrast, “there doesn’t have to be a clear and present danger” to warrant censorship by the state.
The difference, he suggested, is rooted in the differing roles speech plays in American and European democracies. When he was teaching in Paris last year, he said, he asked his students who they viewed as the sovereign in France. “And the answer they all gave was, ‘The nation is sovereign,'” Post reported. “No one in America would say that. They’d say the people are sovereign.”
In America, he explained, speech therefore “has to do more work” than in Europe to bind people to a government they might otherwise see as illegitimate. “I didn’t vote for this man,” Post said, referring to President Bush. “And yet he represents me.”
What he called “the legitimating function of speech” arises from Americans’ ability to identify with the government based on the premise that “the government is responding to public opinion, and we’re all free to try to influence public opinion.” While this isn’t by itself enough to ensure that we are “self-governing,” he added, it is a necessary precondition for self-governance.
The question of protection for offensive cartoons is thus “a slam dunk” in the U.S., but trickier in Europe, and especially for the European left, which believes “we have a right to blaspheme, but we don’t have the right to be racist.”
Much of the debate in Europe, he said has hinged on just that question. “Are these cartoons racist? Or are they anti-religious? And if they’re anti-religious, then of course they should be protected. And if they’re racist they should be suppressed.”
But even when speech is “likely to cause discrimination” against members of a particular religion, drawing the line between protection and suppression is “a difficult and complex issue,” Post said, adding that “the most obvious way” to decide the question is to rely on the distinction between hate speech and ordinary expression.
The cartoons published by Jyllands-Posten — and available for viewing, along with other images and background information, at www.zombietime.com/mohammed_image_archive/jyllands-posten_cartoons — are “plainly about public issues,” Post concluded, and thus constitute fair criticism, no matter how offensive some people may find them.
“They take a position on issues of public moment,” he said, “but they do not advocate discrimination or oppression or violence; they do not threaten; they do not use racist epithets or names; they do not attack individuals; they do not perpetuate an obvious untruth; they do not portray Muslims as without human dignity.”
The images, said Post, “may exacerbate stereotypes and exaggerations, but that is not the same as hate speech. That is simply the nature of most ideas.”