Democracy Lab

Born Free, But Not Indifferent

Yes the government should protect free speech. But that doesn’t mean it shouldn’t speak out.

Reactions to Innocence of Muslims, the anti-Islam video made by a Coptic Christian resident of California, have divided on two familiar lines that separate the United States from most other nations in the world. "Prohibitionists" called for free speech to be limited in the face of blasphemous or hateful expression. In the United States, the most vocal defenders of free speech, the "neutralists," have argued that the government should express no opinion about hate speech. For example, the conservative press reacted to President Obama's condemnation of the video by calling it an apology for our rights of free expression.

Lost in these two familiar reactions, however, is a third way of thinking about free speech that lacks the flaws of prohibitionist bans and neutralist refusals to condemn even the worst hate speech. This alternative approach, which I call "democratic persuasion," protects all viewpoints, even racist and anti-religious ones, from coercion. But in my view, the protection of free speech must be combined with a strong defense of the value of equal respect. The state should use its status as an influential speaker to defend democratic values and to argue against hateful viewpoints. It is essential that the state criticize hate speech to avoid the misperception that protection means indifference or endorsement. This kind of misperception is endemic in the structure of free speech rights, which protect all viewpoints.

The State Department and the president used this third approach in their public statements and advertisements run on Pakistani television. Far from being a flawed "apology," as conservative media charged, the advertisements released by the State Department suggested how we might appeal to democratic values to condemn hate speech. This approach allows American foreign policy to articulate and explain our uniquely robust free speech tradition. The policy avoids the blunt instrument of prohibiting hate speech as well as the anemic refusal to condemn it.

Our First Amendment doctrine of "viewpoint neutrality" protects all matters of opinion on politics, religion, and philosophy from punishment. Our free speech jurisprudence allows declarations about the falsehood or truth of religious beliefs. This right of free speech respects the autonomy of citizens and their ability to decide for themselves on matters of conscience and politics. This protection is extended to all citizens based on the value of equality.

The right of free speech protects the freedom to express "blasphemous" viewpoints that may be seen as defaming or disparaging the fundamental tenets of a religion. The free exercise of religion, also a right respected in the United States, may depend partly on the freedom to assert the truth of one religion's beliefs and to disparage assertions of another religion.

The Supreme Court, while allowing threats to be prohibited, has extended  free speech to hateful viewpoints, such as those of the Ku Klux Klan and American Nazi party. The anti-Muslim video is also protected by this standard.

The video is meant to cause offense in its depictions of the Prophet Mohammed as a child molester. It combines homophobia and anti-Muslim animus in asserting that homosexuality is fundamental to Islam. In the United States, however, attempts to ban this work would be restricted on free speech grounds.

But the fact that the video is protected on free speech grounds has been confused throughout the world with the endorsement of the content of the video. This misperception that the state's protection of an anti-Islamic video means that it endorses the video has sparked riots throughout the world. One widely circulated clip that is typical of these denunciations uses the video to suggest that democracy is inherently disrespectful to Islam, because it allows hateful anti-Islamic speech to be expressed without punishment. An impassioned critic goes so far as to suggest that disrespect of Islam is "what democracy is all about."

The confusion of protection and approval is deeply linked to the structure of our rule of viewpoint neutrality. If the government wants to condemn a message, it often does so through a ban. Government sends the message that murder is wrong by punishing murderers. We condemn racial discrimination by banning it in the workplace and in other domains. Conversely the protection of an act is often thought to signal indifference to it. For instance, the state does not ban interracial marriage, and this is taken to mean that the state does not disapprove of it. So it is not surprising that protection of the video might be wrongly thought to signal that the state condones or even approvals of it. Free speech has an "inverted structure" in that the right of free expression can protect viewpoints that are hostile to the very reasons for protecting rights. We protect Nazi speech, even though Nazism would deny free speech protection to others and even though it stands in deep opposition to the democratic value of equal respect that underlies our free speech protection.

Although the conflation between protection and approval is understandable given the inverted structure of free speech, it is a mistake to think that free speech entails government indifference to hate speech. The entire reason we protect free speech is to respect the autonomy of all citizens equally. As the legal scholar Alexander Meikljohn suggests, we protect the right of our citizens to hear all viewpoints precisely because we trust them to make good decisions in the public realm of democracy. This entails enough respect to trust that citizens can hear even the most evil viewpoints while retaining the good sense to reject them.

The basis for free speech in the democratic value of equal respect is expressed throughout the Constitution, and in particularly in our commitment to equal protection. The state has an obligation to articulate the democratic value of equal respect, which is the basis for the right of free speech, even when it allows dissent from the value as a matter of law. It rightly condemns the hate speech that it protects. And it does so often, at least implicitly. When the state "speaks" through public holidays or school curriculum it does take a side on behalf of our own liberal democratic values. We celebrate Martin Luther King Day to express the commitment to equal protection.

The Ku Klux Klan was founded in opposition to the 14th Amendment to the Constitution, which guaranteed equal protection of the law based on race. When we teach in schools the importance 14th Amendment, the government is taking a stand against the views of the Klan and other hate groups. These acts of state speech serve to clarify that while hate groups can say what they wish, the state is not indifferent to these messages. It condemns and argues against them.

The need to clarify that robust free speech commitments are compatible with condemnation of hateful viewpoints is important domestically. But it is also clearly urgent abroad. When the state "speaks" in its public diplomacy it is essential that it explain the values that underlie free speech.

Confusion about the meaning of the United State's commitment to free speech has drastic consequences. Rioters in Pakistan appeared to believe that the American government was neutral towards or even approving of the hateful views in the video. The nation and its representatives need to explain to the world that we do not protect free speech because we are indifferent to the content of those who abuse it. We can clarify that the United States protects all viewpoints, but that it condemns those viewpoints that violate the democratic value of equal respect.

It is essential to clarify what kinds of viewpoints are rightly subject to criticism, if the United States is to successfully deliver internationally the subtle message that it protects the right to express hateful viewpoints, but criticizes their content. What precisely merits government criticism in the video? One option is to criticize it as being blasphemous.

But blasphemy is the wrong frame of criticism. Our free speech and religious freedom traditions require that the state not take a position on which religions are false and which are true. That is the core idea of our ban on the establishment of religion. But blasphemy takes a side in disputes between religions. This is not a perspective that we can endorse. Citizens must not only be free from coercion but also free from state criticism if they assert the truth of one religion and the falsity of others.

The content of Innocence of Muslims is not merely about asserting the "falsity" of Islam and the truth of another religion. Instead, it is filled with hostility towards the Muslim people as child molesters. It is analogous to the famous blood libel, myths about Jewish ritual used to slander the Jewish people as a whole. The blood libel is anti-Semitic hate speech masked as criticism of religious practice. Similarly, Innocence of Muslims claims to criticize religious practice but it actually aims to disparage the Muslim people. The video should be regarded as a form of hate speech against Muslims.

The United States government should articulate why our tradition of free speech and religious freedom is founded upon an ideal of equal respect. That ideal is violated by the anti-Muslim video. The government has a duty to articulate why the right to free speech is protected in the case of the video, even though it condemns the video's message. This can clarify for an international audience that the state's protection of hateful expression does not imply approval of the content of that expression.

The State Department adopted this response when it aired ads in Pakistan to quell riots there. The videos show President Obama and Hillary Clinton giving an official defense of our free speech traditions while condemning the video. They took neither a neutralist nor a prohibitionist approach to hate speech, but a third approach: "democratic persuasion." They defended free speech protection for the videos. Yet they made use of state speech to clarify that the protection does not imply approval or indifference towards the message in the video. Instead, they articulated that protection of the right of free speech was based on the value of equal respect. They clarified that the same values that lead us to protect hate speech also can lead us to condemn it.

With the lens of this third view of "democratic persuasion," we can see the State Department ads as a principled defense of democratic values, and as neither an apology nor a pragmatic concession to the need to quell the riots. Of course the violence abroad provided an impetus for these advertisements. But rightly understood, the aim to protect and criticize hate speech should be a broader part of United States public diplomacy beyond the specific commercials run in Pakistan. Such a policy of democratic persuasion would articulate why we defend free speech, while condemning hateful expression. 

Photo by ADEK BERRY/AFP/GettyImages


All About the Benjamins

Why Bashar al-Assad won't go.

Bashar al-Assad has outlived so many predictions of his imminent demise at this point that it would seem unwise to bet against him. Nonetheless, a series of military and diplomatic setbacks combined with a wave of defections in recent weeks have raised expectations that the Syrian president may finally be on his last legs. While Assad will likely exit the scene eventually, observers may be looking at the wrong signals when assessing his regime's vulnerability.

In a Dec. 20 article last year for Foreign Policy, we wrote of Assad: If he betrays the interests of his closest Alawite allies, for instance by implementing reforms that will dilute their share of the spoils, they will probably murder him before any protesters can topple his regime. ... Captive to the needs of his coalition, he ignores the welfare of the 23 million average Syrians and shuns world opinion." We calculated at the time that Assad could count on 3,600 elite supporters. Should they stop working to neutralize the rebellion, Assad would be gone immediately.

What keeps those supporters on Assad's side? In a word, money. As long as he has enough to keep his cronies loyal, he will live to fight another day. Eventually he might lose the battle against the rebels, but that is down the road. If he runs out of cash, he will be gone today.

Assad must worry day and night whether enough money will come in to prevent big fractures in his backing among the ruling elite. So far, he seems to be managing this threat well. Al Jazeera reports that the total cumulative defections within his regime amount to just 73 individuals, almost none of whom are from the ruling Alawite clan and perhaps none of whom are from the inner circle of key backers. The press has made much, for example, of defections by Syrian diplomats, yet only one or two of 13 diplomatic defections have been by senior officials -- the former ambassadors to Iraq and the United Arab Emirates. Most of the diplomatic defections have been by consuls and other lower-level functionaries.

Likewise, much was made of the three (out of 39) cabinet members who have defected since the uprising began, including Prime Minister Riad Hijab last August. But Hijab had been in office for just two months and was Sunni, not Alawite. Indeed, the defectors are almost never Alawites and are, therefore, almost certainly not members of Assad's winning coalition -- the people whose backing is essential to keep him in power. Assad's official inner circle, which comes from a diverse set of backgrounds, is mostly for show, while the true inner circle -- like the General Staff of the military -- is all Alawite. Their defection would be a risk to his survival; it is they who must be kept loyal and that means they must be paid better by Assad than by any credible alternative.

That then raises the question: Where does the money come from? The question is easy to answer: Iran, Iraq, Russia, and a bit from Venezuela. Assad is estimated to need about $500 million a month to keep his regime afloat. The Times of London reports that Iran alone has given Syria about $10 billion -- enough to sustain the regime for almost two years. The Iraqi regime is pledged to political neutrality on the Syrian rebellion, which turns out to mean that they are unwilling to interrupt their economic dealings with Assad's regime and they oppose sanctions -- ostensibly to protect the well-being of the average Syrian. They seem to have given billions to Assad as well.

If there is anything positive to be taken from the Syrian situation, it is that U.N. sanctions on Iran have so devalued that country's currency that Tehran may not be able to afford to sustain both itself and Assad for long. Given that choice, there is no doubt the mullahs will sacrifice Assad. How long it will be before they get to that point is difficult to say. There are factors pulling in both directions. Reports have surfaced of fissures between Ayatollah Khamenei and his head of intelligence over the cost of supporting Assad. These tensions have likely only grown as the rial has plummeted in value and as Iran has acknowledged sending elite forces to aid Assad. More intense sanctions against Iran might prove to be the most effective tool the West has to bring down the Assad regime. But it is far from obvious that doing so will improve the situation or serve the interests of any NATO member except for Turkey.

The beginning of the Syrian rebellion provided an opportunity for Western interests to step in and take an active role in organizing the more secular elements among the rebels. That, however, did not serve the electoral interests of Obama's core constituents or voters in other Western countries facing elections. Hence, with their own survival being foremost in their calculations, Western leaders did little to bolster pro-Western insurgents or to topple Assad by offering him a soft landing. While the West pondered its next steps, others, as must always be expected, saw an opportunity to organize the rebellion around their own agenda.

The majority of Syrians may not be religious fundamentalists. But as in Egypt's revolution and the 1979 revolution in Iran, the organized few are, and we should expect power to devolve to them when the Assad regime is brought down. As emphasized in our book, The Dictator's Handbook, the short-term political interests of politicians always trump the longer-term "national interest." And so it has been with Syria. A future American president will have to learn to deal with a possibly even worse Syrian regime. Neither Mitt Romney nor Barack Obama was prepared to acknowledge that waiting and doing nothing would saddle future leaders with an almost assured headache. After all, there were precious few votes among Democrats or Republicans for action today that would forestall disaster tomorrow.