Even under the relatively broad construction of freedom of speech we’re accustomed to in the United States, almost everyone up to and including Glenn Greenwald and the ACLU would agree that my right to say what I want has both legal and practical limits. I’m not allowed to make direct threats against the life of the president or other government officials, and I’m not allowed, as the conventional phrase puts it, to shout “Fire!” in a crowded theater. That sounds reasonable enough. But wait – as we have discovered this week, and as we discover over and over again, when it comes to restricting speech, the devil is in the details. What constitutes an unacceptable threat against the leadership class, and who is covered by this restriction? Does the owner of the theater (metaphorically speaking) get to determine whether or not my words have caused a panic? What if the theater is really on fire?
In the eyes of many American civil libertarians and journalists, France and other Western European nations committed a dangerous and self-destructive blunder this week with their widespread crackdown on speech perceived as condoning or supporting Islamic terrorism. Just days earlier, Paris had captured the world’s attention with a massive rally in response to the murderous attacks on Charlie Hebdo and a suburban supermarket. French citizens of many backgrounds, races and faiths had taken to the streets by the hundreds of thousands to demonstrate that the republican ideal, however tarnished and challenged, had not perished.
Now the French cops are rounding people up because of stuff they said, including a drunk driver who tried to talk tough after causing an accident and a notorious comedian who made a nasty joke on Facebook. To say this is ironic feels inadequate. To describe it as going from the sublime to the ridiculous comes closer, but fails to reveal the contradictory kinship between these events. As Greenwald noted earlier this week, it’s impossible to imagine Western media celebrities signing on to a #JeSuisDieudonné campaign, in solidarity with the confrontational French comic who has repeatedly been accused of violating France’s prohibitions on hate speech with anti-Zionist and/or anti-Semitic comments. (Dieudonné is also the pioneer of the “reverse Nazi salute,” meant to skirt or satirize the ban on the classic “Heil Hitler” gesture. Points for innovation, if nothing else.) Think Bill Maher is likely to take up his cause?
Dieudonné, who is of Cameroonian ancestry but does not identify as a Muslim, now faces criminal charges for responding to the “Je Suis Charlie” moment by posting this: “Tonight, as far as I’m concerned, I feel like Charlie Coulibaly.” That implies, I suppose, that he felt sympathy both for the Charlie Hebdo victims and for Amedy Coulibaly, the gunman who killed four people in that kosher grocery, after earlier killing a police officer. Is that a startling and disturbing sentiment, likely to strike many people as hateful and offensive? Absolutely. Is it impermissible speech, an incitement to violence, the moral or political equivalent of shouting “Fire!” in that proverbial theater? You and I don’t see it that way, very likely. But I shouldn’t try to speak for you, and more to the point it’s naïve to pretend those questions exist in a vacuum, or have clear objective answers. It all depends on your perspective on the nature of the theater and the nature of the fire.
I share the American media caste’s dismay over this week’s Euro-crackdown, which feels stupid and misguided on many levels. But its significance goes far beyond tactical miscalculation or bad P.R. messaging, and Americans have no right to feel overly soothed by high-minded New York Times editorials. In every society, the limits of free expression and the nature of protected speech – what kinds of things can be said, and to whom directed – is always being contested and is always subject to change, whether subtle or dramatic.
In the aftermath of 9/11, Americans eagerly surrendered a wide range of constitutional rights and liberties in the name of an imaginary security. We have accepted a subtly restricted zone of free speech – where we “watch what we say, [and] watch what we do,” in the Rumsfeldian phrase -- and have entirely abandoned our traditional conception of privacy rights. It’s not entirely coincidental that the censorious jingoism and groupthink of the Fox News right finds a faint echo on the left, in campus speech codes and similar phenomena designed to purge public discourse of sexism or racism or homophobia. Both sides accept the premise that suppressing undesirable forms of expression is a valid use of power.
Nearly the entire European elite, from the mainstream left through the center-right, shares a sharply restrictive view of free speech forged in the aftermath of the Third Reich and the Holocaust. That perspective seems alien to many Americans, who tearfully quote the First Amendment and pride ourselves on our toleration for neo-Nazis and flag-burners and other forms of kookiness and zealotry. I’m a big fan of the First Amendment and the whole Bill of Rights, a great achievement of the 18th-century Enlightenment – and one honored at least as often in the breach than the observance. Our fabled tolerance fades rapidly, let us note, when the kooks and zealots are perceived as a threat: Ask the anarchists, Communists, civil rights activists, student radicals, Black Panthers and other dissidents subjected to various forms of government harassment and persecution over the course of the last century or so.
It certainly looks from outside as if the French have made a grave tactical error, and displayed weakness rather than strength. But so far the European public appears supportive, and Europe's rulers are at least being honest about the relationship between speech and power, a question Americans tend to avoid or elide. The right to speak is meaningless in the abstract; it only exists in relation to political power. Everyone who speaks takes an ideological position with regard to political power and the dominant social order, whether they recognize it or not. It can be a position of support or opposition, or it can be the assumed neutrality of the “cultural sphere,” which customarily means support masquerading as indifference. The hilarious reversals of the rom-com and the outrageous escapades of the sex comedy end with the triumph of marital-domestic order (although it no longer has to be heterosexual); the skullduggery and unexpected betrayals of the political thriller culminate in the defeat of corruption and conspiracy and the triumph of democratic virtue (however hazily delineated).
I have no desire to revisit the tiresome debate among leftists and liberals about whether or not to embrace Charlie Hebdo, which was always a distraction from more urgent political issues. But this was precisely the question: What was Charlie Hebdo’s relationship to power? Was it an equal-opportunity, anti-authoritarian gadfly, as its defenders professed? Or did it consistently “punch down,” by mocking the faith of a despised and marginalized minority on behalf of a racist power structure? Implicit in the question lay the idea that, if the latter theory were borne out, Charlie Hebdo’s so-called freedom was not freedom at all and not worth defending. In the utopian society that lay just over the horizon it would be banned by righteous edict, or at least shamed into nonexistence.
Alter the terminology slightly, and that’s exactly the argument being made in France to justify the persecution and prosecution of Dieudonné, who may be a thoroughly obnoxious character but has not committed or encouraged any known acts of violence. Critics like Greenwald and Jeremy Scahill have correctly observed that this week’s events make all those prominent politicians who marched for freedom of expression in Paris and have worked to suppress it in their home countries look like hypocrites. But I would parse it more finely than that: It was politically expedient for those leaders to embrace Charlie Hebdo’s free speech rights amid the wave of grief and emotion that followed the attack, but that doesn't make them Charlie Hebdo fans. Then it became expedient to deny those rights to Dieudonné. It's difficult, but not impossible, to imagine the shoe on the other foot. The lesson is not just that politicians prefer some kinds of speech to others, but rather that they fundamentally do not trust it.
The relationship between free expression and state power is always adversarial in nature, and it really doesn’t help Americans understand the world when we wave the flag, recycle botched quotations from Rousseau and Voltaire and fall back on the notion that we have a special mission from God. Every act of speech, overtly political or not, is potentially destabilizing to the state’s ideological authority and the dominant social order. Whether we’re talking about Germany in 1945 or America in 2015, it is always in the state’s interest to limit freedom of expression, to reduce the scope and scale of speech and point it in the desired direction.
Of course, the modality for restricting or channeling speech can take many
forms, and that’s not an unimportant question. The postwar European social contract has involved forcefully rooting out forms of speech deemed so toxic and inflammatory that they endanger the overall climate of social-democratic tranquility. Bringing down the legal fist of the French Republic on a handful of belligerent drunks (who, prima facie, do not sound like devout Muslims) and a one-note comic who makes Holocaust jokes exposes the contradictions beneath that social contract a bit too clearly. I have a hard time swallowing the idea that the French officials who decided to scapegoat Dieudonné over a Facebook post are so deluded that they really think they are battling terrorism or protecting public safety. They are well aware that he’s not the only alienated second-generation immigrant in Europe who feels divided loyalties, just one of the few dumb enough to talk about it in public. It’s a transparent effort to intimidate others into silence and foreclose certain kinds of conversations.
We don’t do that in America, at least not that blatantly or officially. We could find people on the Internet saying crazier and more offensive things than Dieudonné within a few clicks from this page. I get emails every day from people who claim that Charlie Hebdo was a “false flag” operation: Sometimes it didn’t happen at all, and nobody died; sometimes the attack was staged by the Mossad to undermine European support for a Palestinian state. Our society’s approach to potentially dangerous forms of dissent is cannier, and also more duplicitous, than the European model. We surround it with a cacophony of crazy, where every form of unorthodox opinion appears equally valueless, and drown it beneath a flood of partisan propaganda, where the only topic worth discussing is the endless red-blue contest for control of Washington. We celebrate our tolerance and openness – remember that time when we let Nazis march through a Jewish town? – and rely on the immense submerged power of the national-security apparatus to keep all evidence to the contrary invisible.
Beneath the complicated and contradictory debate over free speech lies an essential philosophical conflict that doesn’t get discussed openly enough. In American terms, it is often depicted as the division between wild-eyed right-wing libertarians (and a much smaller number of wild-eyed left-wing anarchists) and the normal people who want a normal government. But here’s a telegram from Captain Obvious, or maybe from Mr. Orwell: We don’t have a normal government, people. The conflict over the nature and purpose of state power cannot be boiled down to conventional binaries like right vs. left, or Islam vs. the West, or democracy vs. terrorism, or capitalism vs. whatever-can-be-said-to-oppose capitalism, although it intersects with all those things in unpredictable ways. Either you embrace the idea of state power – the power of your own state, or somebody else’s, or an imaginary state yet to come -- as a tool for purifying minds and hearts, encouraging good speech and driving out the bad kind, or you don’t. It’s time to be clear about which side we're on.