Leiden Law Blog

Freedom of Expression: What to do with it

Posted on by Hendrik Kaptein in
Freedom of Expression: What to do with it

PEN America split over a special award for Charlie Hebdo. Its board decided to honor publication of prophetic cartoons as courageous defenses of freedom of expression. But several prominent members of PEN America protested against such praise for offense and insult against countless bona fide Muslims.

The critics are completely right. In fact their point relates to a distinction which is fundamental for any civilised legal order and culture. Responsibly enjoying rights of whatever kind does not necessarily entail making use of them to their limits, like "I have a right to do this or that, so I'll do whatever suits me, as long as it is not explicitly illegal". Something may be lawful, but stil awful. Law however civilised cannot regulate human conduct in every desirable respect. In fact it ought not to even try to do so at all. So time and again we need to ask ourselves about possibly adverse consequences of acting according to legal rights.

Charlie Hebdo's prophetic cartoonism is a case in point. It may be legal, at least in France. But the next question was and is: does such cartoonism amount to humanly responsible conduct, however legal it may be? The answer to this question may be negative, given so many hurt feelings of Muslim believers.

A still more important reason for not making use of a legal right this way may be the risks of losing human lives. This has nothing to do with giving in to terrorism. It is no more than humanly responsible balancing of basic interests concerned. Staying alive may be more valuable than enjoying freedom of expression to the limit. In fact there are no rights to whatever at all to be enjoyed without staying alive. As long as terrorism is a reality to be lived with, some caution against eliciting such deadly factors may be apposite. This got nothing to do with giving in to terrorism indeed. It is respect for human life, as long as deadly fanaticism cannot be totally eradicated yet.

Salman Rushdie accused Charlie Hebdo's critics of contradicting themselves, in both praising freedom of expression and pleading against it in rejecting insult and offense. But the contradiction is Rushdie's, not his opponents'. Again, there is no freedom of expression withouten responsible use of this basic right.

Still Paul Cliteur, sympathizing with Salman Rushdie, compared Charlie Hebdo's cartoonists with Giordano Bruno and other innovators who paid with their lives for their contributions to science and scholarship. This can't be right, for at least two reasons. First, Bruno and so many others were killed by totalitarian governments, not by terrorists operating within civilised legal orders. Second, scientists and scholars like Bruno vastly improved our knowledge of man and the world. Charlie Hebdo style cartoonism got nothing to do with this at all. It may make some people laugh, it maken many others frown or worse. Bruno believed he was right, against so many irrational and even deadly odds. Prophetic cartoons cannot be right or wrong in any knowledgeable sense at all. In no way such depictions of religious figures may count as sensible criticisms of any religion.

But Charlie Hebdo was wrong in a human or moral sense of you want. So don't depict Charlie Hebdo and comparable phenomena in margins of Western liberal culture as paradigmata of freedom of expression to be defended and praised at all costs. There must be better ways to counter deadly fanaticisms.

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