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Frenemies of Free Speech

The damage that benevolent censors do.

Mar 21, 2011, Vol. 16, No. 26 • By SAM SCHULMAN
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This weekend is the anniversary of the first truly liberal attempt to prevent hatred by restricting free speech. On March 15, 1939, Denmark made it a criminal act to spread “false rumors or accusations” in order to incite “hatred against a group of the Danish population because of its creed, race, or nationality”—with a fine for those who did so in speech and detention or prison for those who did so in print or broadcasts. The law was designed to hamper the activities of Danish Nazi sympathizers. On May 31 the same year, Denmark made itself even more secure against Nazism by signing a non-aggression pact with Germany. Less than a year later, Hitler initiated the six-hour conquest of Denmark by putting an armored battalion on the regular ferryboat from Rostock to Denmark. The treaty didn’t stop him, nor did the fear of feloniously violating Section 266b of the Danish Penal Code by inciting hatred against Jews and Communists.

Frenemies of Free Speech


The German Army packed its bags in 1945, but Section 266b remains in force, much modernized (it now applies to hatred of any group, not just Danes, and prohibits insults to sexual identity), a standing rebuke to what Europeans call “the American version” of free speech: freedom to speak unconstrained by restrictions against “hate,” against insulting or offending individuals or groups, and without special protection for specific religions (Islam), races, or historical facts. In 2011 so far, American-style free speech has been widely condemned (for the Tucson mass murder, notably), though it has also had moments of popularity, particularly since the Arab revolutions began in Tunisia, and again with the madcap activities of public employee unions in Wisconsin. Even Tom Friedman took a holiday from his admiration for Chinese autocracy to celebrate the Twitter revolutions.

But “the European version” of free speech, if we may call it that, soldiers on doggedly. Courts in Austria, Denmark, and France have this year convicted journalists and political volunteers (none of them neo-Nazis) of hate-speech crimes, which generally took the form of making observations about the frequency of certain violent crimes among immigrant groups in Denmark and France, and in Austria about the respectability of the historical Muhammad. Fashion designer John Galliano may soon go on trial in France for racial insults uttered in a Paris bar. There is no doubt among European liberals that “hate speech” must remain restricted in this fashion. After all, as a columnist in the Netherlands’ NRC Handelsblad explained, “everyone knows it’s wrong to insult someone’s race or religion. So why shouldn’t it be a crime as well?” 

A special focus of the war against American-style free speech is the campaign to stigmatize critical discussion of Islam as Islamophobia. Anti-anti-Islamists, as Lee Smith terms Western apologists for Islamism, present a hydra-headed definition of Islamophobic speech. In New York, regarding it as in poor taste to build a mosque on the site of the 9/11 attacks is Islamophobia. In Sweden, Islamophobes betray themselves by suggesting that the suicide bomber who tried to commit mass murder in Stockholm was an Islamist. In Britain, Conservative party chief Baroness Warsi declared that the mark of Islamophobia is to distinguish between moderate and extremist Muslims (a distinction that she is famous for having made herself in a plucky BBC interview filmed just after she was egged by extremist Muslims in Novemer 2009).

The lesson is that believers in free speech should keep their opinions to themselves. Simon Jenkins wrote that freedom of speech itself, not the man who pulled the trigger, was the real culprit in the Tucson murders: “Language that might not disturb a balanced mind” can “clearly stimulate and legitimize an unbalanced one.” Thinking at all about Islam, in its rich variety of cultural and religious expression, is not only an insult, but tantamount to shouting “pedophile” in a playground. As a Norwegian anti-terror expert told the press, “Islamophobia leads to discrimination that may lead to terrorism.” 

It’s no wonder that so many in Europe believe in the notion of “good censorship”—and are willing to prescribe it to us. The European chattering classes believe that it is easy to draft sensible limits on free speech in the interest of civility, tolerance, peace, and civilization. And it may seem to the publics in European countries that silencing and even imprisoning a few journalists and center-right politicians will be worth it if it attains social cohesion. They will never really know, since European national publics no longer have the power to decide on such matters—limitations on freedom of expression come increasingly from EU directives and court decisions. But the notion that speech could be limited in a benevolent way has a history that goes back a century before Denmark’s 1939 experiment, and in two little known but dramatic instances failed in ways that are spectacularly ugly—and still have consequences today.

What did happen when “good censors” went to work in British India and antebellum America? Enormous political impact and dire consequences. These two little-known examples took place almost simultaneously, in the mid-1830s, at opposite ends of the world. And both were attempts to deal responsibly with horribly difficult questions of politics, race, and religion.

In 1837, the great liberal polymath Lord Macaulay and two colleagues in Calcutta drafted an entirely new Penal Code for British India. It was designed to replace at one stroke the existing criminal law, which was largely a hodgepodge of old laws from the previous Mughal regime, and was finally adopted in 1860. Macaulay’s work not only survived the entire period of British rule, but has survived independence to become the penal code of India and Pakistan alike. One section in particular has become a cause of great strife in 21st-century Pakistan: Macaulay’s decision to regulate and criminalize insults to religion became the core of Pakistan’s notorious “blasphemy laws” (which politicians currying favor with religious parties made much more stringent beginning in the 1970s). 

In January of this year, Salman Taseer, the governor of Pakistan’s Punjab Province, was assassinated for proposing a humanitarian modification to the blasphemy laws—which might have spared the life of a Christian woman, Aasia Bibi, whose arrest had become an international cause célèbre. Last week, the controversy claimed another victim, Shahbaz Bhatti, the sole Christian member of the government and an advocate of reforming the blasphemy law. He was gunned down while driving in Islamabad. Much of Pakistan’s population, major media figures, and most of the opposition parties celebrated Taseer’s assassination and made or tolerated threats against anyone who would dare touch the laws. Bhatti knew he was courting his own death by accepting the dare.

Starting in 1835, another group of well-meaning liberals—politicians, intellectuals, and businessmen in Northern states—undertook a campaign against abolitionism in order to placate their Southern political and business partners. Hardly defenders of slavery, these “anti-antislavery agitators” are the true ancestors of the “anti-anti-Communists” of the 1950s and of today’s “anti-anti-Islamists.”

Macaulay was motivated by the need to promote tolerance in a country shared by a few thousand European Christians, millions of Muslims, and, as Macaulay put it, “tens of millions of Hindus strongly attached to doctrines and rites which Christians and Mahomedans join in reprobating.” While Mughal law protected Islam alone against insult (and did so haphazardly), Macaulay’s code gave people of any faith protection from having their “religious feelings” wounded—by words, gestures, trespass, and destruction of property. Macaulay was confident that magistrates would apply the law only to deliberate, malicious, and considered insults—not passing observations or anything said in the heat of religious dispute in defense of one’s own religion. Good jurists would ensure that the subjective impression of the injured party would never define the crime of blasphemy (which is precisely how the modern-day European hate speech laws do operate).

The American experience was rather more complicated. Antislavery sentiment had been widespread in the South as well as the North as recently as the 1820s, when the South still had hundreds of antislavery committees. Southern authorities cracked down and eliminated these associations, and in 1835 began a concerted campaign on the Northern great and good. The campaign on the part of what abolitionists later called “the Slave Power” exerted “coercive pressure on freedom of expression in spite of the enshrinement, in the Constitution’s First Amendment, of a foundational right to speak.” It “used legislation and bullying to stifle agitation against the South’s labor regime, portraying debate on the subject as a threat to the Union’s survival. An ideological cordon sanitaire was erected along the Mason-Dixon line, but the campaign did not relent at the region’s borders; it extended throughout the country. .  .  . Although the assault on free speech specifically targeted abolitionist protest, it was meant to have a chilling effect on all discourse,” including “literary and speculative discourse”—and, according to Michael T. Gilmore, author of The War on Words: Slavery, Race and Free Speech in American Literature, from which these passages are drawn, it did.

Gilmore’s astonishing book is not history but lit crit, and finds a strong current of self-censorship running through the literature of the 19th century. He argues that the North’s appeasement of the Slave Power up to the eve of the Civil War, and of White Supremacy after Reconstruction, deformed even the greatest writers of the century, from Emerson and Hawthorne to Twain and -Howells. (Gilmore’s “Slave Power” theory has been argued by a line of historians which includes Russel B. Nye, Leonard L. Richards, David Grimsted, and Michael Kent Curtis—and disputed by a formidable antagonist, David Brion Davis.)

Gilmore’s argument is engagé, and he writes with impeccable bien-pensant convictions. He says that the “perilous state of civil liberties under the Bush administration” helped to inspire War on Words, and its title is an homage to Pablo Neruda, the Chilean poet who played Walt Whitman to Stalin’s Lincoln and refused to challenge the Soviet policy of silencing writers like Pasternak and Brodsky. Gilmore’s academic New Left sensibility permits him the radical’s pleasure of admiring energetic and vital slavery supporters like Senator John C. Calhoun of South Carolina and John Randolph of Roanoke, and sharing their contempt for the Northern liberals who tried to appease the South by silencing Northern abolitionists. The list of Northern appeasers includes surprising figures like the Unitarian minister William Ellery Channing, who “attacked abolitionists in graceful language without reading their work,” deploring urbanely how the abolitionists “exaggerated slavery’s evil and painted the master as monster” (in the words of David Grimsted), without bothering to learn very much either about slavery or abolitionism.

The campaign against freedom of speech by Northern antislavery activists began in 1835 with lawfare, violence, and what today would be called BDS: boycotts, divestment, and sanctions. Responding to Southern pressure, Northern leaders held anti-abolitionist meetings in major cities from Portland, Maine, to Philadelphia; landlords who rented space to abolitionist meetings were boycotted. Pro-slavery mobs supported the lawfare campaign with threats and attacks, culminating in the mob murder of an Illinois editor. Arguably, the first victims of lynchings were not black slaves and freemen but white abolitionists. As a Richmond newspaper observed with contemptuous accuracy in 1836: “Depend upon it—the Northern people will never sacrifice their present lucrative trade with the South, so long as the hanging of a few thousands will prevent it.” 

The North bowed to economic pressure and the threat of violence from the South. Without actually legislating against the First Amendment (as many Southern states had done), authorities and civic leaders in the North made speaking out against slavery practically impossible. In 1836, the upstate New York abolitionist Alvan Stewart wrote that an abolitionist is perfectly free to denounce slavery “in the silent chambers of his own heart, but must not discuss it in public, as it may then provoke a syllogism of feathers, or a deduction of tar.”

Southern states were ingenious wagers of lawfare, inventing many devices still used today against freedom of speech in Europe and Canada and advocated by improvers of freedom of speech elsewhere. It was Senator Calhoun, not an anti-imperialist student leader or a Church of England bishop, who argued that speech that hurt feelings should be banned. Anyone who criticized slavery “libeled the South and inflicted emotional injury” and made “reflections injurious to the feelings of himself, and those with whom he was connected” in “highly reprehensible” language. Speaking in favor of the infamous gag rule passed by the House in 1836, which would gut the constitutional right to petition the government if slavery was the subject of the petition, Calhoun (who wanted the same rule in the Senate) denounced hate speech with a passion that any NGO spokesperson might envy. Brandishing a petition that called slaveholders pirates dealing in human flesh, Calhoun denounced its blatant Carolinaphobia: “Strange language! Piracy and butchery? We must not permit those we represent to be thus insulted.”

The war against free speech ebbed and flowed with other issues: the Missouri Compromise and the Kansas-Nebraska Act. But the high water mark came with John Brown’s raid on Harper’s Ferry in October 1859. -Harper’s Ferry inspired the Democrats to invent a strategy I wrongly thought Dick Morris had devised in 1995 after the Oklahoma City bombing: blame Republicans for the violent act of a madman with whom they had nothing to do. Illinois senator Stephen A. Douglas put it with a bluntness which anticipates a Paul Krugman column: “The Harpers Ferry crime was the natural, logical, inevitable result of the doctrines and the teachings of the Republican Party, as explained and enforced in their platform, their partisan presses, their pamphlets and books, and especially in the speeches of their leaders in and out of Congress.”

John Brown was arrested, interrogated, tried, and executed (in a very efficient six weeks). But this did not satisfy the anti-hate speech crowd. Douglas insisted that those who thought slavery was wrong—and thus had created the atmosphere of violence that stimulated and disturbed Brown’s mind—must “repudiate and denounce the doctrines and teachings which produced the act.” Three months after Harper’s Ferry, Douglas proposed a new Sedition Law that would not merely ban slaveholder-phobic speech, but criminalize antislavery sentiment.

Douglas’s outrageous Sedition Law proposals provoked Lincoln’s great Cooper Union speech (a speech so grand that Garry Wills thinks it comparable to candidate Obama’s famous Philadelphia speech about race and Reverend Jeremiah Wright). Lincoln described how prudent restraint of speech easily leads to criminalization of thought. What did Douglas want, Lincoln asked? Opponents of slavery must 

cease to call slavery wrong, and join [the Southern people] in calling it right. And this must be done thoroughly, done in acts as well as in words. Silence will not be tolerated; we must place ourselves avowedly with them. Senator Douglas’ new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our free-state constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us. .  .  . They will continue to accuse us of doing, until we cease saying.

The lesson is that when ideas are truly in conflict, the effort to soften the stark disputes by preventing antagonists even from describing their ideas with candor and honesty is hopeless—and makes things worse. The effort to make Northern speech conform to Southern feelings did not succeed—it merely provoked the South and its supporters to raise their standard for civil speech, until speech and the ideas behind it had to conform exactly with their own belief in slavery. Controlling speech did not control the conflict, as the proponents of hate speech believed it would, any more than the Weimar Republic’s constraints on the expression of anti-Semitism prevented the triumph of an anti-Semitic party in Germany—nor, as I argued in these pages recently, has banning Holocaust denial in Europe eradicated Holocaust denial or promoted philo-Semitism. 

The fate of the blasphemy law in Pakistan, designed by a pioneer of modern thought specifically to promote tolerance, is similar. Pakistan’s religious majority has adopted Salman Taseer’s admitted assassin Qadri as a national hero. The Lahore bar, which two years ago engineered the “Black Revolution” that drove President Musharraf from office, showered the killer with flower petals, and—more shocking—offered him free legal representation. Magistrates and policemen dealing with him are threatened if they treat him as a suspect. The blasphemy law itself has become an idol. Some Pakistanis argue that reverence for the blasphemy law has enabled one strand of Islam to drive out all others: Although the occasional Christian or Hindu defendant gets the publicity, the overwhelming majority of victims of the extrajudicial punishments that take place in its name are themselves Muslim (like Taseer). As the Pakistani-American writer Omar Ali explains, the blasphemy laws are popular because they give 

the message that anything and everything can become blasphemy, and once the accusation is made, the accused is done for. It doesn’t matter what happens in court. .  .  . Any court that lets off a blasphemer can itself be accused of blasphemy. Anyone who suggests the law is open to misuse is guilty of blasphemy. .  .  . With this weapon in place, anyone opposing the mullahs and their version of Islam can be accused of blasphemy. The law is there to intimidate and to take away the public space from liberal forces (and not just secular liberal forces, even a mildly liberal interpreter of very orthodox Islam like Javed Ghamdi has had to leave the country).

There is another point to be made here, an embarrassing one. When threatened by violence, cowards (like me) respond by throwing freedom of speech overboard. The South defended slavery with far greater passion and earnestness than the North disapproved of it. The freedom with which modern Westerners speak of various subjects has a direct relationship to the level of discomfort we feel. A cosmopolitan liberal like Ian Buruma feels perfectly comfortable teasing Ayaan Hirsi Ali about her naïve admiration for the Enlightenment; no one would advise him to give lectures about tolerance to the Islamists who tormented her physically in Africa and threatened her life in Holland. You may recognize Buruma’s unpleasantly patronizing tone if you read his spiritual predecessor, William Ellery Channing, urbanely admonishing the abolitionist William Lloyd Garrison about the crudity of his antislavery rhetoric at a time when Garrison’s neck was coveted by every lynch-gang on either side of the Mason-Dixon line.

Those in the West who want to limit free speech feel physically safe and morally superior. Professor Talal Asad of CUNY has published a book about the “supposed stand-off between Islam and liberal democratic values” which inquires “into the evaluative frameworks at stake” in understanding the conflict between blasphemy and free speech (Is Critique Secular? Blasphemy, Injury & Free Speech). Asad gets Omar Ali’s goat, because he is “a Westernized postmodern thinker, safely ensconced in New York and thoroughly immersed in the categories and arguments of the Western academy.” Intellectuals in Pakistan who care to inquire into the evaluative framework of the blasphemy regime don’t have it so easy. Just after the -Taseer assassination, the great physicist and peace advocate Pervez Hoodbhoy appeared on a popular Pakistani talk show, which was taped in front of a college-student audience. Hoodbhoy described the proceedings:


The response? Not a single clap for me. Thunderous applause whenever my opponents called for death for blasphemers. And loud cheers for Qadri. When I directly addressed Sialvi [a moderate cleric from the Barelvi sect to which Qadri belongs] and said he had Salman Taseer’s blood on his hands, he exclaimed “How I wish I had done it!”

Fear of violence—and the desire to limit violence to those already subject to it—is what really inspires the movement to restrict free speech. If we say nothing, then Islamists will concentrate their efforts on dissenting Muslims like Hirsi Ali; Southern slaveowners will cultivate their plantations. The New York Times’s Robert Wright admits this with admirable candor when he pleads for the suppression of “Islamophobia”: “As Islamophobia grows, it alienates Muslims, raising the risk of homegrown terrorism—and homegrown terrorism heightens the Islamophobia, which alienates more Muslims, and so on: a vicious circle that could carry America into the abyss.” If only avoiding the abyss were as easy as sustaining abysses in faraway countries. Unfortunately, history shows us the opposite. The efforts of Macaulay and the Northern moderates to avoid offensive speech led inexorably at least to the brink of tyranny, a brink over which many despairing Pakistani moderates think it will lead their country in no more than five or ten years. 

Just as bad, these restrictions on free speech exacerbated conflict by forcing antagonists into dishonest positions. Because they were spared disagreement, the members of the injured party became ever more convinced of their righteousness, while those who suppressed the speech of their fellow-believers forgot their own convictions. The faults of each side were amplified, not moderated. Each side knew that the other was lying. Compromise or even peaceful coexistence became less, not more likely.

In suppressing speech, we begin, honestly enough, as cowards, but become falsely convinced of our own virtue. The poststructuralists and the NGOs tell us that through self-censorship of our real beliefs, we become better human beings than we really are. But to those for whose sake we self-censor, we begin to seem even worse than we really are. All censorship—particularly self-censorship driven by fear—creates hatred and contempt for the censors. How can they whose feelings we are trying not to hurt possibly regard us? Certainly as weaklings, but also as weaklings with a secret sense of our own superiority. We cherish our freedoms, but think they are too good for others. 

An enthusiastic defender of slavery, John Randolph of Roanoke, showed us exactly how the self-censors deserve to be regarded in a wonderfully contemptuous description of the Northern Democrats who voted for the Southern interest on the Missouri bill of 1820. “They were scared at their own dough faces—we had them! .  .  . We could have had [any number of] these men, whose conscience, and morality, and religion, extend to thirty-six degrees and thirty minutes north latitude.” Restricting free speech is no more than an attempt to draw a new Mason-Dixon line behind which we protect our own political virtue, while withholding it from others. And it will be about as useful a way to create social harmony as Section 266b was at keeping “denigrators of national origins” out of Denmark on April 9, 1940.

Sam Schulman wrote about Holocaust education in our January 3 issue.

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