Posts Tagged Free Speech

The White House and Free Speech

It goes without saying that reporting, opinion, and satire are not occasions for retaliatory violence.

Yet at the January 12th daily White House press briefing, Press Secretary Josh Earnest repeated it no fewer than eight times.

Who can this bland truism of a sermon be meant for?  Westerners take it for granted.  Islamists reject it out of hand.  It simultaneously fails to reassure, persuade, or defend.

It was meant, instead, to threaten.  Each repetition was paired with a reason why news organizations might do well to consider self-censoring their reporting and their commentary.   A number of times, Earnest invoked the idea that printing potentially offensive material might endanger the lives of American service personnel serving overseas – a notion for which there is approximately zero evidence.  (One wonders whether or not the servicemen and women themselves were ever consulted about being used in this fashion.)

Earnest ominously suggested that newspapers might need to take into account their own calculations of the risks to themselves involved in reprinting cartoons or controversial material, that they or their reporters might be subject to violent attacks as a result:

The first thing is I think that there are any number of reasons that media organizations have made a decision not to reprint the cartoons.  In some cases, maybe they were concerned about their physical safety.  In other cases, they were exercising some judgment in a different way.  So we certainly would leave it to media organizations to make a decision like this.

He also proposed that considerations of taste, journalistic judgment, and ethics might come into play:

And, again, those decisions aren’t just driven by safety; they’re also driven by certain ethics and journalistic standards.  And these are complicated issues but ultimately ones that journalists should make.

There was a faint mention, prompted by insistent questioning, that a free press was something that our military is out there defending, but that only served to heighten the need for self-censorship in order to protect them.

And I think you could make the case, as I mentioned earlier, that a lot of men and women in uniform — not just from American soldiers, but French soldiers and British soldiers and others are fighting for that principle in a very real way.

In fact, given the opportunity in a question to say that American newspapers really should consider themselves safe, Earnest passed it up, in favor of another statement that journalists were just going to have to make that assessment themselves:

Q: Are you saying that based on your knowledge, the White House — you guys know a thing or two about security — that American media organizations shouldn’t be afraid of writing something or showing a cartoon that would offend jihadis because, hey, you, as the White House say, America is the place where you don’t have to be afraid of that because we have sufficient security here? …

A: What I’m saying is that individual news organizations have to assess that risk for themselves.

Earnest then went on to mention the risks journalists routinely take to bring stories to their readers – without mentioning that reporting on ISIS from Iraq entails, or should entail, slightly different security concerns from printing satirical cartoons in Paris or New York.

Put together, the logic of the briefing reads like satire itself:  No speech can justify violence like what we saw in Paris, but news organizations need to think about what they’re printing, the kinds of risks they’re taking printing it, since we really can’t protect them, and how they might endanger our servicemen who are fighting to protect their right to print this sort of thing.

Here’s what a robust defense of the spirit of the First Amendment would look like: “Americans – indeed all people – have the right to unfettered free speech, be it reporting, opinion, or satire.  It is not the job of this government to pass judgment on the content of that speech.  It is the job of this government to make sure that Americans can exercise that right without fear for their safety.”

We didn’t get that.

Instead, then-Secretary of State Clinton supported the Organization of Islamic Cooperation’s (OIC) notorious UN Resolution 16/18.  That resolution would effectively criminalize criticism of Islam, encouraging countries to ban speech that serves as an “incitement to violence.”  While under Western law “incitement” means encouraging violence, Islamists interpret it to mean “offending to the point of provoking violence.” Such laws would surrender our free press to the Islamist mob.

The administration’s support for Resolution 16/18, and active cooperation in its development, lends a decidedly more sinister cast to its statements.  In this context, the repeated statements that nothing that gets printed can justify violence begins to seem a little less like an attempt to state a principle, and a little more like a Chicago politician’s traditional warning: nice little newspaper you got there, shame if anything happened to it.

How long will it be before we see Earnest making the case for Resolution 16/18 simultaneously on the patriotic grounds of protecting our troops, and as a preferable alternative to the violence that “irresponsible” speech invites?  We would then have the spectacle of a United States President using the threat of Islamist terror attacks to justify Islamist restrictions on a free press.

Even though, it goes without saying, such violence can’t be justified.

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Provocation Is Not Incitement

Overseas and in Canada, Islamists have succeeded in using the notion of “defaming” a religion in order to misuse libel laws and shut down criticism of Islam or Islamic leaders.  Fortunately, the US has proven more resistant to such abuses.

As an end-around, Islamists seeking to suppress free speech in the name of “respect” for Islam are using a treacherous linguistic bait-and-switch to get restrictions written into national laws.

Historically, incitement to violence – or any criminal act – has been considered at least a justification for prior restraint, and sometimes even a criminal act in itself.  This Findlaw page on the legendary Judge Learned Hand discusses changing standards for what constitutes incitement – and therefore what written material might be subject to prior restraint. It is clear that the term means encouraging or instructing someone to commit a crime:

At that time, the legality of written or spoken words was usually judged by the probable result of the words—that is, if the words had the tendency to produce unlawful conduct, then they could be banned. Hand took a different approach: his solution focused on the words themselves, rather than on a guess at the public’s reaction to them. He invented what became known as the incitement test: if the words told someone to break the law, if they instructed the person that it was a duty or interest to do so, then they could be banned. The Masses magazine praised conscientious objectors and antiwar demonstrators, but it never actually told readers they should behave similarly. For this reason, Hand ruled that the postmaster could not ban the magazine.

Here’s a case of modern-day incitement, although for some obscure reason, charges were never brought:

This definition places the burden where it belongs: on the mob and on the guy who yelled, “Burn it down!” or “Kill the Jew!”  That is, the mob who actually did the destruction, the individual who actually committed the act, and the person who inspired them to commit that act.

Islamists seek to reverse this logic, and therefore, gain power over our speech and our writing.  They do this by subtly redefining incitement, so that if someone published cartoons insulting to Islam, and a mob uses that as a pretext for wreaking havoc, the publisher of the cartoons will have “incited” the mob’s behavior, even though this wasn’t the intent of the speech or the writing.

Take this 2012 oped by Randall Hamud, a San Diego attorney who gained brief notoriety in the aftermath of 9/11 for representing some men accused of being involved with the plot.  Here, Hamud is trying to make the case that Mark Nakoulay, of Beghazi Video fame, may have committed a criminal act by making and distributing the video.

In 1919, U.S. Supreme Court Justice Oliver Wendell Holmes Jr. wrote that free speech did not include the right to falsely yell “fire” in a crowded theater resulting in a panic. If there were a clear and present danger of substantive evil, such speech would not be protected. In 1969, the Supreme Court held that government cannot punish advocacy in the abstract. However, advocacy can be criminalized where it urges “imminent lawless action and is likely to incite or produce such action.”

You see what he did there? The video doesn’t even come close to urging imminent lawless action, and the action presumed taken – riots by an Islamist mob – are certainly not what Nakoulay had in mind.  On a nontrivial technical note, the Court said “and” rather than “or,” meaning that the lawless action taken has to be the one contemplated by the speaker.

Consider the following scenario.  Jyllands-Posten publishes a series of juvenile cartoons making fun of Muhammad. The local imam takes those cartoons, waves them around at Friday prayers, and demands satisfaction.  Young Arab men then stream out of the mosques, burning and smashing the business district of their town.

Under the traditional definition of “incitement,” the imam would be guilty of incitement, and the mob would be guilty of property destruction.

Under the revised, Hamudian definition, the publisher would be guilty of incitement, and the imam would off scot free.

Whenever Muslim mobs rampage allegedly over some perceived slight, or Islamists walk into a newspaper and murder the staff, apologists would argue that they were “incited” to do so by the cartoons/editorial/image/oped/sandwich, effectively giving the most-touchy, most thin-skinned guy with access to a knife veto power over what we can say.

I’d like to be able to report that the US government, leader of the free world and primary defender of liberty across the globe, is having none of it.  Sadly, in 2011, then-Secretary of State Clinton enthusiastically endorsed UN Human Right Council (sic) Resolution 16/18. Whether this is the result of useful idiocy or active sympathy is beside the point – the US government has opened to door to subverting the 1st Amendment at the behest of our enemies.

Randall Hamud, by the way, was presented in 2002 with something called the “Alex Odeh Freedom of Speech Award.”

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Charlie Hebdo, and The Hill

The Hill was kind enough to pick up my op-ed on the Charlie Hebdo massacre yesterday in Paris.  You can read the whole thing, of course, but here’s my favorite bit:

There was a time when we understood what was at stake.  The fearful editor and wrecked printing press were staples of Hollywood westerns for decades, but this sort of thing happens in real life here, on occasion.

In the run-up to the Civil War, abolitionist Elijah Lovejoy made plenty of enemies on St. Louis with his anti-slavery newspaper, so much so that they destroyed his printing press three times and ran him off, across the river to the free state of Illinois.

The fourth time, they crossed the river, threw the press in the river, killed Lovejoy, and burned his warehouse.

I doubt those at the Washington PostNew York Times, or Yale University Press teach or retell that story today by implying that Lovejoy would have been better-advised to tone it down because deeply held and easily bruised feelings were at stake.

Since, at the end, I call for media to reprint things that irk Islamists, here’s a cover from the newspaper, and the Danish Cartoons that started it all, almost 10 years ago.

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Chinese Openness

If you liked the International Criminal Court, or the various incarnations of UN Human Rights Shindigs, you’ll love this one.

In this morning’s Wall Street Journal, in an article that doesn’t seem to have gotten much attention, Li Congjun, President of Xinhua, proposes an international code of media conduct, to be enforced by UNESCO (“Towards a New World Media Order“).

What disputes?  Who knows?  In the first six paragraphs, Li alludes to exactly zero disputes or complaints, gives no examples, and basically leaves the reader wonder what the hell he’s talking about.

Eventually, he complains about the media flow being from developed to developing countries, about developing countries not having their turn at the mike.

Of course, China has done for the media what it’s done for other consumer goods – turn it into a one-way outbound flow.  Li wants this to go global, where if you’re lucky, he’ll allow you occasional Congjungal visits with your freedom of the press.

He proposes Four Principles:

Fair: This requires that media organizations from all countries should have the right to participate in international communication on equal terms. Those media organizations in turn should provide comprehensive, objective, fair, balanced and accurate coverage to minimize discrimination and prejudice.

All-win: It is advisable to create conditions allowing media organizations from different countries to share the fruits of development in information and communication industries, to play an active role in international mass communication, and to reverse the unbalanced situation where the strong get stronger and the weak get weaker.

Inclusion: To maintain the world’s diversity, media must respect the unique cultures, customs, beliefs and values of different nations; strive to dispel suspicions and remove barriers between different cultures and civilizations; enhance dialogue and communication; and seek common ground while putting aside differences.

Responsibility: Media organizations should not only ensure openness and transparency to promote the building of an open society, but also keep to rational and constructive rules so as to turn mass communication into an active force for promoting social progress.

“F-A-I-R,” get it?  In the US, these sorts of things usually last about as long as it takes to print up the posters, but the Chinese government has a history taking this sort of crap seriously, as a way of getting everyone on the same page, which you would think would be easy, because it’s the only one being published.

You’ll notice what’s missing in that list: “Free.”  Nothing would be easier than to just point out that Xinhua asking for openness and transparency is like Mahmoud Abbas asking for equal access to semtex and leave it at that.  But the Chinese are playing a deeper game.

The Chinese are big on numbering lists of principles and ideas.  Over the years, these have brought us the wildly successful Five Year Plans, The Four Olds, the Three Kingdoms, The Two Meetings, and the One News Agency to Rule Them All, Xinhua.

Nominally, this is about the developed world dominating the world media, and giving a voice to the third world.  Well, silly, the developed world is where all the action is, it’s where all the decision-makers are, and it’s the dog to the developing world’s tail.  There’s no reason that’s set in stone, and the best way for the 3rd world to get the 1st worlders to read about them is to get on with developing their economies so there’s something to read about.  In the case of the US, if the Democrat plan of putting the budget and economy on cruise control Thelma & Louise-style continues much longer, we won’t get much choice in the matter.

That’s what happened to New York.  In the 1930s, every radio show you heard originated in New York.  Why?  Because that’s where everything important happened. The businesses were there, the markets were there, it was our biggest city, our biggest port, center of what passed for the US art world back then. Hollywood made movies, but New York made news.

Then, as New York declined, the radio and television and production headed west, and lo and behold, we discovered that we had great, Pulitzer-worthy newspapers in St. Louis and Detroit and Denver and Dallas and everywhere in-between.

It happened not because some government bureau decided that it was important to hear voices from LA, or that New Yorkers needed to listen to Louisiana’s Official Government Radio for three hours a day.  It happened because in a free society, places have the opportunity to develop and become newsworthy, and a free press is not only complementary to that, it’s part of the process of getting to prosperity, of getting to matter enough to be read about.

I already check the India Times a few times a week, and if there were something trustworthy coming out of China, I might read that on occasion, too.  As it is, I have to rely on the Journal and the western sources doing business there, and even then, I have to put on filters.  (It makes it doubly-difficult because I have to decode twice – once for the censors and again for the cultural nuances I have no idea even exist.)

What’s really going on here is part of a larger Chinese strategy on several fronts.  At 30,000 feet, China is trying to take on the Soviets’ old role of Champion of the Third World.  As part of that, this proposal to have the UN mediate media disputes dovetails nicely with the Islamic Conference’s goal of extending slander laws to their religion. And if the Chinese can actually harness the UN to their purposes of cutting short honest reporting, so much the better.

It’s an incremental process, and if the US tells the UN to take a hike, there will be others, Europeans, or CNN, who are used to the idea of government media, who won’t.  Then, when ABC or CBS or Fox or Michael Yon or Pajamas Media wants access someplace, they’ll have to play by the rules, or Americans will be able to get their news from sources who will, while the reprobates get put on the slow boat to China.  As Mark Steyn has pointed out, there’s no way in an integrated world that the US can remain an isolated bastion of freedom all by itself, alone.

The Chinese Commnunists are also trying to protect themselves.  Ever-paranoid, having seen what a minimally free media has done to the Middle East, they’re not going to let that happen to them, no sir. They’re determined to go on the offensive against it, rather than stay on the defensive over their own internal censorship and Great Firewall.  The Chinese probably don’t expect any immediate action, but they’re planting seeds here.  They’re making friends, putting things on the agenda for the long term, and at some point, they’ll hint that the price of the next loan rollover is some minimal action on this idea.

Remarkably, our somnolescent press corps didn’t even ask about this at today’s State Department Press briefing.  Maybe they’ll get around to it, but you can imagine (and I won’t print) what the reaction of Mike Royko of Jimmy Breslin or even Don Marquis would have been.  And without such a short, sharp reaction – soon – our thin-skinned Chicago-pol of a President just might starting turning this idea over in his head, too.

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