Like most of you I watched the news of the attack in Paris with horror and anger.  It is especially unsettling to hear interviews with security and terrorism specialists who say there is little that can be done to stop such attacks and to expect more.  After considering the barbarity and evil of such an attack I, like all of you, watched as the western world rallied in support of Charlie Hebdo, the satirical paper which was the target.  I was impressed by the unity, and the cry Je suis Charlie! I am Charlie. A beautiful vast statement about the importance of free speech.  But as I contemplated the free speech at issue, cartoons ridiculing and, according to Muslims, blaspheming the prophet Mohammed, I grew troubled.  This is where the west will take its free speech stance?  Blaspheming a religion?

Free speech debates happen on the fringes.  One of the most important free speech cases is Hustler Magazine, Inc. v. Falwell. http://bit.ly/1B2TX27, which dealt with a satirical advertisement in Hustler magazine in which Jerry Falwell, a very well known and politically active minister, described his “first time.”  He obtained a $150,000.00 verdict in trial, but the U.S. Supreme Court reversed, saying the “facts” in the satirical ad were never intended to be perceived as true, so there could be no libel.  The salacious and disgusting ad could not be stopped.

It isn’t the expression of commonly held beliefs or routine thoughts that cause others to want to shut them down.  It is over expression of outrageous and offensive matters that establish walls of free speech at a distance, and keep the battle far away from the center of the village where societal destruction may occur.

Another case might help us change our perspective on the recent events.  As my torts professor used to say at UVA Law School, one’s opinion of the law is often determined by “whose ox is being gored,” a not too indirect reference to Exodus 21:36.  I think considering “whose ox is being gored” by Charlie Hebdo might be fruitful.

An important (but short and per curiam) free speech case in the United States is National Socialist Party of America v. Village of Skokie. http://bit.ly/1i1YcBw.  In 1977 the neo-Nazi group declared its intention to march through Skokie, Illinois, wearing Nazi uniforms and displaying swastikas.  Why Skokie?  The small town was predominately Jewish and one in six residents was a Holocaust survivor.  The city imposed regulations on the march making it essentially impossible to conduct.  The ACLU represented the NSPA and succeeded in getting the injunction issued by the local court stayed.  The march could go on.

But here’s the rub, and the relevance for Charlie Hebdo.  Skokie is much more about religion than Hustler. The grounds on which the injunction was issued, at least in part, were statements made by the Jewish residents that if the march occurred, violence would follow.  Such a march was intolerable to them.  After the Supreme Court’s ruling, the marchers obtained a permit from the city of Chicago and never went to Skokie.  But what if the march had gone on in Skokie and the Jewish residents responded with violence?  Assume people were hurt, or even killed.

Would the public response be to call out for solidarity in support of free speech?  Massive demonstrations by millions around the country?  Presidents and premiers of numerous countries marching arm in arm in front of hundreds of thousands of marchers?  And what would the rallying cry be? “Je suis Nazi?”

I think not.  The solidarity shown regarding Charlie Hebdo has a great deal to do with the content of the cartoons.  In Europe and the United States, people are comfortable ridiculing Islam, because it isn’t their ox being gored.  Some people might understand the offensiveness better if the satirical assault was on their religion, like the public—and publically financed—display of a “work of art” called “Piss Christ” in which a crucifix was displayed in a glass of the “artist’s” urine.  It was vandalized several times when displayed, by people who thought it blasphemous and an intolerable insult to Christianity.  http://bit.ly/KjeUO4 The closer to home the offense, the more acutely one appreciates the issues.

To press the point further, imagine if a college campus newspaper decided to publish cartoons critical of Islam and depicting Mohammed in a way that was blasphemous.  Is there any doubt that the newspaper would be instantly shut down as “hate speech?”  (For those who haven’t actually seen the Mohammed cartoons published by Charlie Hebdo, they are readily available.  I should warn you that several of them are disgusting and terribly offensive.)  Ask author and political commentator Mark Steyn how he felt about being dragged in front of a human rights tribunal in Canada for having the audacity to write a book discussing the progress (demographics mostly) of Islam in the world compared to the west. http://bit.ly/1zeyXVk

We’re able to maintain numerous tensions in our heads at the same time, which might, given true self-critical analysis, point out the hypocrisy in how we really think.  It may make us realize that we feel strongly in one direction, and less so in another, because it isn’t our “ox being gored.”

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