Writers organisation PEN recently offered a freedom of speech award to Gerard Biard and Jean-Baptiste Thoret, who are associated with Charlie Hebdo. PEN praised the French satirical magazine’s refusal “to accept the curtailment of lawful speech by those who meet it with violence.” The decision to give this award to Charlie Hebdo was criticized by many writers. Here at the Leiden Law Blog, my colleague Hendrik Kaptein stood with those critics and condemned Charlie Hebdo for its lack of proper moral judgement in publishing the blasphemous cartoons of the prophet Muhammad. According to Kaptein, the magazine “was wrong in a human or moral sense.” “Does such cartoonism amount to humanly responsible conduct, however legal it may be?”, he asks. He answers this question with a “no”, “given so many hurt feelings of Muslim believers.”
Although I agree with Kaptein’s observation that saying something within the limits of the law does not necessarily coincide with making a morally sound statement, it does appear to me that the specific nature of multicultural democracy and what this implies for free speech have remained underemphasised in his contribution.
As annoying or disturbing hurt feelings and offense can be, when it comes to matters of public importance such as religion, morals, influential historical figures or politics, hurt feelings cannot be the focal point in a multicultural society. That is because such a society is, by definition, composed of heteronomous groups and individuals with diverse, competing and often conflicting ideas, spiritual beliefs, and conceptions of what constitutes a good life. We see this all the time. The display of a historical painting on our King’s golden carriage deeply offended some people while many others shrug their shoulders; the Reformed Protestant Party caused offense for advocating the exclusion of women in representative and administrative political organs; Black Pete is for many Dutchies a rather innocent and funny character, while his presence during our national festivity of Sinterklaas infuriates others for its supposed racist meaning.
Prophets, of course, are no exception. For some members of Western societies Muhammad was the greatest man that ever walked the face of this earth, others genuinely disagree (think for example of Hitchens’ God is not Great: How Religion Poisons Everything or the work of Ayaan Hirsi Ali). And while it would be tantamount to blasphemy for many Muslims to argue that Muhammad was not the last prophet sent by God to mankind, for adherents of the Bahá’í faith doing so would be no more than simply expressing their religious feelings. Where one person sees pessimism, the other sees realism; and what for one individual is religious truth is for another blasphemy. I am not advocating any type of relativism here, but I want to stress that in a multicultural society there is fundamental disagreement about fundamental issues. An inclusive playing field that enables believers as well as unbelievers to persuade others of their point of view and to express their identity seems to me not only just in terms of equality, it may also help to absorb potential negative effects of irreconcilable differences between groups and individuals with competing sets of ideas.
Furthermore, it is important to remember that in the type of acts we are discussing here – i.e. physical attacks on blasphemers –, it is contestable whether hurt feelings play a central role. “I never felt insulted”, Mohamed Bouyeri, the jihadist who murdered Dutch film maker Theo van Gogh, said in court. He also stated that “…the whole story that I would feel insulted as a Moroccan or because he would have called me goat fucker, all of that is not true. I acted out of faith. And I have even indicated that if it had been my father or brother I had done the same. So you really cannot accuse me of any sentimentality.” Bouyeri, who was inspired by the radical work The drawn sword against those who insult the Messenger, felt that he was obliged to “chop off the head of everyone who insults Allah and his prophet.” The brothers who attacked the office of Charlie Hebdo wanted to “avenge the Prophet Muhammad.” It was primarily the desire to implement a particular form of blasphemy code that motivated these French jihadists and Bouyeri; one that is not imaginative and that has its legal counterpart in, for example, article 295-C of the Penal Code of Pakistan: “Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.”
When it comes to issues of public importance, we may agree with William Kingdon Clifford that “no one man’s belief is in any case a private matter which concerns himself alone.” The main problem with regard to Charlie Hebdo, the Danish cartoons and incidents alike is that terrorists aim to remove – with a fair bit of success – images of the prophet Muhammad from that public domain, thereby creating a situation in which one historical figure is exempt from scrutiny and ridicule whereas other historical figures (think of the importance of Marx for communists or Jesus Christ for Christians) are not.
Flemming Rose, who as editor of the Danish newspaper Jyllands-Posten commissioned the publication of the “Danish cartoons” about Muhammad, eloquently argued why this is problematic. Rose, as a former foreign affairs correspondent in the Soviet Union familiar with censorship and its tendency to erode social and democratic structures, explains that if he visits a house of worship, he abides by the particular religious customs that are in force. “But”, he went on saying, “if a believer demands that I, as a nonbeliever, observe his taboos in the public domain, he is not asking for my respect, but for my submission. And that is incompatible with a secular democracy.” Also Stéphane Charbonnier, who was killed on 7 January 2015 when two terrorists stormed the Charlie Hebdo office in Paris, found it odd to create a special status for one icon: “We do caricatures of everyone, and above all every week, and when we do it with the Prophet, it’s called provocation.”
Amongst others, Flemming Rose and Charlie Hebdo were unwilling to let the peculiarities of one particular group dominate the public domain. This costs (Rose) and has cost (Charlie Hebdo) a huge price. Why not offer a prize in return for Charlie Hebdo’s efforts? As PEN put it: “There is courage in refusing the very idea of forbidden statements, an urgent brilliance in saying what you have been told not to say in order to make it sayable.”