Despite Justice Black's declaration that "No law means no law," the Constitution's protection of free speech is not, and never has been absolute.
First, it applies only to the government. Home Depot can, without violating that proscription (or the one about the free exercise of religion), fire an employee for wearing a pin that says "One Nation Under God" on his uniform because Home Depot is not the government. (Neither is Goldman Sachs, by the way, though Mike at Crimes & Federalism might want to argue the point.)
Second, even with the government it's not total. Obscenity isn't covered. Neither is child pornography. Fighting words can be banned. The Supreme Court will be deciding soon whether distributing photographic depictions of violence against animals can be prosecuted.
But you know, some of us believe in free speech even when the Constitution doesn't apply. It's not that I think truth will win out in the metaphorical marketplace of ideas. I've never been convinced of that. It is, rather, that I think the philosophical agora is in itself a good thing. If we can't speak freely, we can't think freely. If we can't think freely, we have no freedom at all.
The First Amendment wasn't placed first for a reason. (In fact, it wasn't placed first; it just ended up there.) But it's location is appropriate.
The problem is that free speech is troublesome. Intentional provacateur Stanley Fish assembled a collection of his essays under the title There's No Such Thing As Free Speech: And It's a Good Thing, Too. That's about as plain a statement of the problem as there is. Free speech is dangerous.
I wrote the other day about the thought police. I wrote earlier about the craven and dishonest (literally, intellectually, and morally) decision by Yale University Press to publish Jytte Klausen's The Cartoons That Shook the World about the depictions of the Prophet Muhammad published by a Danish newspaper in 2005 and the responses to them - but to leave out the cartoons. That last continues to rankle. If we cannot look to the academy and its press to be forthright in defense of the open discussion of ideas, where can we look?
The answer, it seems (and thanks to Eugene Volokh for pointing it out), is to another university. What Yale will not do, Duke will. The aptly named Voltaire Press has now published Muhammad: The "Banned" Images. It's a picture book containing those 12 cartoons and apparently (I haven't got my copy yet) another 19 images of Muhammad, with commentary, and a Statement of Principle advocating not the content of the book but it's idea and signed by a dozen individuals and organizations. (I'm bitter that they didn't ask me to sign.)
This is from the Introduction:
Muhammad: The "Banned" Images is a "picture book" — or errata to the bowdlerized version of Klausen's book as published by Yale University Press. It is of course more than that. It is a statement of defiance against censors, terror-mongers, and their Western appeasers. It is a rallying cry for free speech, freedom of the press, and for open scholarship unfettered by fear.
And this is the Statement of Principle.
Free Expression at Risk, at Yale and Elsewhere
A number of recent incidents suggest that our long-standing commitment to the free exchange of ideas is in peril of falling victim to a spreading fear of violence. Not only have exhibitions been closed and performances cancelled in response to real threats, but the mere possibility that someone, somewhere, might respond with violence has been advanced to justify suppressing words and images, as in the recent decision of Yale University to remove all images of Muhammad from Jytte Klausen's book, The Cartoons that Shook the World.
Violence against those who create and disseminate controversial words and images is a staple of human history. But in the recent past, at least in Western liberal democracies, commitment to free speech has usually trumped fears of violence. Indeed, as late as 1989, Salman Rushdie's Satanic Verses continued to be published, sold, and read in the face of a fatwa against its author and in the face of the murder and attempted murder of its translators and publishers. In 1998, the Manhattan Theater Club received threats protesting the production of Terrence McNally's play Corpus Christi, on the ground that it was offensive to Catholics. After initially canceling the play, MTC reversed its decision in response to widespread concerns about free speech, and the play was performed without incident.
There are signs, however, that the commitment to free speech has become eroded by fears of violence. Historical events, especially the attacks of September 2001 and subsequent bombings in Madrid and London, have contributed to this process by bringing terrorist violence to the heart of liberal democracies. Other events, like the 2004 murder of Dutch film director Theo Van Gogh in apparent protest against his film Submission, and the threats against Hirsi Ali, who wrote the script and provided the voice-over for the film, demonstrated how vulnerable artists and intellectuals can be just for voicing controversial ideas. Under such threats, the resolve to uphold freedom of speech has proved to be lamentably weak: in the same year as Van Gogh's murder, Behzti, a play written by a British Sikh playwright, was cancelled days after violence erupted among protesters in Birmingham, England on opening night.
In response to rising concerns about fear-induced self-censorship, in 2005 the Danish newspaper Jyllands-Posten published an article, "The Face of Muhammad," which included twelve cartoon images. The cartoons became the focus of a series of violent political rallies in the Middle East in February 2006 and a subject of worldwide debate pitching free speech against "cultural sensitivity."
For all the prominence of Islam in such debates, threats of violence against words and images are not the sole province of religious extremists. In 2005, a politically controversial professor's scheduled speech at Hamilton College in Clinton, NY was cancelled in response to alleged threats of violence. In 2008, the San Francisco Art Institute closed a controversial video exhibition in response to threats of violence against faculty members by animal rights activists. Later that year, the University of Nebraska-Lincoln canceled a speech by former Weatherman and education theorist William Ayers, citing security concerns.
The possibility of giving offense and provoking violence has entered the imagination of curators, publishers and the public at large, generating more and more incidents of preemptive self-censorship: in 2006, for instance, London's Whitechapel Gallery declared twelve works by Surrealist master Hans Bellmer too dangerous to exhibit because of fears that the sexual overtones would be offensive to the large Muslim population in the area; and publisher Random House canceled the 2008 publication of Sherry Jones' The Jewel of Medina because "it could incite acts of violence." The suppression of images in Jytte Klausen's book is the latest, but not likely to be the last in the series of such incidents.
Words and images exist in complex socio-political contexts. Suppressing controversial expression cannot erase the underlying social tensions that create the conditions for violence to begin with, but it does create a climate that chills and eventually corrupts the fundamental values of liberal democracy.
A Call to Action
The incident at Yale provides an opportunity to re-examine our commitment to free expression. When an academic institution of such standing asserts the need to suppress scholarly work because of a theoretical possibility of violence somewhere in the world, it grants legitimacy to censorship and casts serious doubt on their, and our, commitment to freedom of expression in general, and academic freedom in particular.
The failure to stand up for free expression emboldens those who would attack and undermine it. It is time for colleges and universities in particular to exercise moral and intellectual leadership. It is incumbent on those responsible for the education of the next generation of leaders to stand up for certain basic principles: that the free exchange of ideas is essential to liberal democracy; that each person is entitled to hold and express his or her own views without fear of bodily harm; and that the suppression of ideas is a form of repression used by authoritarian regimes around the world to control and dehumanize their citizens and squelch opposition.
To paraphrase Ben Franklin, those who would give up essential liberty to purchase a little temporary safety, will get neither liberty nor safety.
As I said, I wasn't offered the opportunity to sign that statement before it was published. But I would have. Happily.