From ‘Je suis Charlie’ to the ‘Phobic’ Hysteria. Paradoxes of Free Speech

Abstract: In recent years, we have witnessed a striking contrast in the protection of freedom of expression. On the one hand, it is not uncommon to claim that insult or blasphemy are legitimate and genuine aspects of free speech as a fundamental right. On the other hand, academic freedom is increasingly threatened by the censorship of political correctness. The worldwide clamor for freedom of expression under the banner "Je suis Charlie" can be considered, in my opinion, an example of the former; while the attack on the eminent Oxford legal philosopher, John Finnis, is a good example of the latter. The paper presented here outlines some reflections on the meaning of freedom of expression in light of this paradox.

Keywords: Free speech, freedom of religion, blasphemy, academic freedom, human rights, civil liberties, constitutionalism, law and philosophy, European Court of Human Rights, Constitutional Court, harassment, Charlie Hebdo, John Finnis.

1. Introduction

The topic of the conference is really a timely one: Challenges to Religious Identity in Public Life: Between Art and Medicine. We are facing difficult times for religious freedom all over the world, not only in communist regimes or sharia dictatorships. I come from Spain, from a well-established Western Democracy, and it would be dishonest to deny that in our so-called open societies, we face crucial challenges for religious freedom. We should not commit ourselves to the task of taking the speck of our neighbor’s eye and fail to see the plank in our own eyes. In the time that follows, I purport to reflect upon the paradoxes concerning free speech and discrimination in our Western democracies. I do not deny, of course, the hardships suffered in close regimes under the rule of sharia, nor the oppression experienced by communist countries. I am not unaware about that, but the very notion of ordo amoris — which is the basis of any practical, either ethical or political duty — demands us a primary concern about our own house, with its own dangers.

2. Two stories

The title of my paper, From ‘Je suis Charlie’ to the ‘phobic’ hysteria. Paradoxes of free speech, gives me occasion to start with two stories.

1. On Wednesday, January 7, 2015, two terrorists murdered twelve people and severely damaged eleven more in the headquarters of the satirical weekly magazine Charlie Hebdo. The murder, whose authorship was claimed by Al Qaeda, immediately produced a profound international shock. Just one hour after the crime, a French citizen published a twit Je suis Charlie, that achieved success in Internet and became one of the most popular twits in its history. Millions of people repeated the phrase, which penetrated the public spaces all over the world in posters and demonstration slogans. For a few days, the Je suis Charlie became the international banner of freedom of speech.

At the same time, critical voices emerged observing that there was something going wrong with the motto, that (willy-nilly) expressed something beyond the solidarity with the victims. Blasphemous and extremely offensive, the cartoons published by Charlie Hebdo began to be displayed in mass media, and many people lost their sympathy for victims of the attacks. A new voice saying Je ne suis pas Charlie expressed a critical reaction against the way the solidarity with the magazine had been channeled. Among the reactions, David Brooks in The New York Times (Brooks, 2015), or Brian Klug from the University of Oxford (Klug, 2016) wrote sharply critical op-eds. Even Pope Francis included a reference to the limits of free speech in the condemnation of the attacks.

2. My second story took place just four years after the first one. In the month of January, in 2019, a group of students of Oxford University promoted a campaign to collect signatures in Change.org, asking for the removal of Professor John Finnis — one of the most prominent legal philosophers in the world, and presumably the most important English-speaker proponent of natural law in the field of jurisprudence — accusing him of “homophobia” and “transphobia.” In support of their accusations, they quoted a series of texts in which Finnis had advocated for the traditional classical view of marriage, and disqualified as opposed to the good of marriage any form of sexual activity outside that institution (Finnis, 2011, pp. 315 ff.).

The proposal of these students managed to produce some sensation, and it was soon followed by more than 300 people. The Emeritus professor responded by holding fast to his writings. “The petition — Finnis declared to The Oxford Student — travesties my position, and my testimony in American constitutional litigation. […] I stand by all these writings. There is not a ‘phobic’ sentence in them. The 1994 essay promotes a classical and strictly philosophical moral critique of all non-marital sex acts and has been republished many times, most recently by Oxford University Press in the third volume of my Collected Essays” (Gould, 2019).

After a few days, Finnis denounced in The Guardian that his critics “mistakenly” took “arguments against their positions and choices” to be “offensive to them as persons,” a problem that became worse by “paraphrases and mutilated quotations.” Again, he stood firm in his viewpoint, and he even added that “it’s clearer than ever to me that the positions I’ve been criticising are damaging to children and other vulnerable people, and to the sustainability of societies.” Finally, Finnis concluded by saying that freedom of expression was “threatened by recent notions of ‘hate speech’, ‘phobia’ and so forth” (Sherwood, 2019).

A year and a half after the incident, professor Finnis gave an interview in which he warned about the creation of “thought crimes.” “I was beyond being damaged,” he said. “But the younger academics, they would have got the message.” Nowadays, “to become a judge or go to the Bar, you have to answer questions that may include this one. […] There will be ways of making it become apparent that you may hold these views and are therefore unsuitable” (McDonagh, 2020).

3. Diagnose of the situation

These two stories are examples to illustrate a current trend toward legitimizing religious offense, in the first place; and a trend toward cancelling traditional orthodox views as unorthodox, in the second place. The two tendencies present us with a striking paradox that deserves some remarks.

1. First, let me talk a little bit about the origins of this paradox. I will call it the paradox of liberal antiauthoritarianism, and it has to do with a contradiction we should be warned about. Particularly since the 1960s, a strong movement against any traditional instance of moral authority has gained an increasing support in the West. The belief in a self-constituted individual, endowed with a pure freedom and unrestrained by any moral conditioning was extended, and freedom was used as a weapon to erode traditional, institutional bonds. Very soon, however, the drop of traditional authority was accompanied by the rise of a new diffuse and anonymous authority. It was the emergence of the so-called “political correctness.” To understand this change, we must consider that the very phenomenon of “authority” belongs to the essence of the public sphere. It is something as real as the air that we breath. Moral authority is a political need deeply ingrained in our nature as social beings necessitated of familiarity and recognition.

The attack on moral authority perpetrated in 1968 was fully unable to suppress authority as such. As I have said, it could only undermine the traditional sources of authority, but it could not fulfill its utopian goal: interdit d’interdire. Undermining the spiritual authority of the Church and the family could only create a vacuum that necessarily had to be filled by another source of authority. Such new source is “political correctness.” In the words of Leonidas Donskis, “public opinion research, questionnaires, telephone polls and obsessively counted ratings are what create authority and what themselves constitute an anonymous, diffused authority” (Bauman & Donskik, 2012, p. 110). [Of course, we could add many more diffused instances of even lesser pedigree: TV shows, celebrities’ statements, etc.]. It goes without saying that, in the last two decades, the fluidity of political correctness has been intensified due to the rise of communication technologies.

2. My second remark concerns what I call the transition from a deconstructive liberalism to an authoritarian liberalism. First, let me note that, as we know, the term “liberalism” is quite ambiguous. I will not refer now to “classical liberalism” or “limited government” liberalism, which is a noble aspiration that traces back at least to the Middle Ages—notably, to the Magna Charta and other Medieval Charters. Contemporary liberalism, however, almost always postulates the freedom of the individual to define his own version of what we can call “the good life.” From this perspective, human rights and civil liberties have been invoked as a means for undermining the common, traditional understandings of the “good life” in the conscience of the individuals. Therefore, they have operated as a deconstructive liberalism.

In the last decade, however, this “deconstructive liberalism” is being replaced by a new authoritarian liberalism. The new liberalism purports to restrict traditional freedoms by imposing the whole citizenship a duty to endorse and publicly confess the validity and even the nobility of the beliefs and lifestyles held by others. However, if holding a particular lifestyle (e.g., homosexual activity) is incompatible with one’s own lifestyle (e.g., a chaste life under the Catholic beliefs), how is it possible not to intrude in one’s own lifestyle by imposing him an endorsement or acceptance of an incompatible lifestyle? To the extent that someone is imposed such beliefs, liberalism becomes authoritarian.

3. A third remark I would like to make has to do with the reasons why relativistic liberalism has become authoritarian. If what I have called “relativistic liberalism” has ultimately become authoritarian, there must be something in the deep values or ideas sponsored by relativistic liberalism that is not liberal at all, that is deeply illiberal from the very beginning. Relativistic liberalism, both in its “deconstructive” stage and in its “authoritarian” stage, cannot be about freedom—if it were so, it would not have an “authoritarian” stage. In its “deconstructive” stage, relativistic liberalism defends a “right to do wrong” in the name of freedom and tolerance; in its “authoritarian” stage, relativistic liberalism imposes “the wrong” it used to defend as a right. This time, however, it does not invoke the “good life” but “the new values.” “Who cares?” is its first slogan; “Teaching diversity” is its second one.

4. Relativistic and authoritarian liberalism are successive stages in the corrupted forms of States, magisterially described by Plato in Book 8 of The Republic. In a relativistic society, “if someone tells him [the individual] that some pleasures are the result of fine and good desires, others of evil desires, and that he should follow and value the first and punish and hold in subjection the second, he does not admit this truth, or allow it into the fortress. He shakes his head at any claims of this sort, saying that all desires are equal, and must be valued equally.” (Plato, 2000 [561c], p. 274) For “there is no controlling order” (ibidem [561d]) in “the life of the man who puts equality before everything.” (Ibidem [561e] This state of affairs, as Plato rightly explains, immediately precedes tyranny: “is it the insatiable longing for this good [freedom], and the neglect of everything else, which brings about a change in this regime too, and creates the need for tyranny?”—says Socrates. “How does that happen?”—interrogates Adeimantus (ibidem [562c], p. 275). And Socrates concludes: “I imagine it’s when a democracy, in its thirst for the wine of freedom, finds the wine being poured by unscrupulous cupbearers, and when it drinks more deeply than it should of pure, unmixed freedom. Then if its magistrates are not totally easy-going and do not offer it that freedom in large quantities, it accuses them of being filthy oligarchs, and punishes them. In a society of this sort teachers are afraid of their pupils and curry favor with them. Pupils have an equal contempt for their teachers and their attendants. In general, the young are the image of their elders, and challenge them in everything they say and do. The old descend to the level of the young. They pepper everything with wit and humour, trying to be like the young, because they don’t want to be thought harsh or dictatorial.” (Ibidem [563a–b], p. 276)  “It’s all like that—all full of freedom.” (Ibidem [563d], p. 276) “Certainly headstrong”, said Adeimantus, “but what is the next step?”—he added. (Ibidem [563e], p. 277) “Indeed, excess in one direction generally tends to produce a violent reaction in the opposite direction. This is true of seasons of the year, of plants and animals, and particularly true of political regimes.” (Ibidem [563e–564a], p. 277) Here, do we find “the origin of tyranny—the harshest and most complete slavery arising, I guess, from the most extreme freedom.” Ibidem [564a], p. 277)

4. Beyond diagnose: four theses on the extent of legitimate free speech

So far, the picture I have portraited may be seen as somewhat discouraging, but we should not let us deceive ourselves by an ill-grounded optimism. “Semper dies mali in saeculo, sed semper dies boni in Deo” (Augustinus, Enarrationes in Psalmos XXXIII, 2, 17). We do not need to develop a long catalogue of reasons in order to be happy and keep fighting for the truth. A few ultimate reasons are more than enough. Therefore, in what follows, I would want to go beyond the diagnose and propose four theses to disentangle the paradox of free speech, and to clarify a little bit the scope and limits of legitimate free speech.

1. My first thesis concerns the so-called right to insult, defended by some scholars in the aftermath of the Charlie Hebdo attacks and currently invoked to justify blasphemous and offensive art.

Just one year before his death, Wesley Hohfeld published in the Yale Law Journal his famous Fundamental Legal Conceptions, one of the most notable contributions to legal analysis written in the first half of the twentieth century. This work was the culmination of an ambitious project, and has given rise to an impressive amount of literature. Hohfeld distinguished what he called “claim-rights” from another kind of rights that he labeled “privileges” or “liberty-rights.”

1. A’s claim right is the correlate of B’s duty, for example, the duty not to prevent A from doing something. A’s having a right or claim to X against B entails B’s having the corresponding duty to X against A. For example, if I have claim right to receive 10.000 zloty from Alexandra, that means that Alexandra has a duty to give me 10.000 zloty.
2. By contrast, the privilege or liberty-right is nothing but the denial of an opposite duty on the side of the liberty-holder. Thus, A’s having a privilege or liberty to X opposes to A’s having a duty not-to-X. If I have a liberty right to express my opinion here, that means that I do not have a duty to refrain from expressing my opinion here.

The paradox here is that, when people defend a right to do wrong—for example, a right to offend—they are manipulating language, or confusing a liberty right with a claim right:

1.  There cannot exist a moral or human liberty-right to do something wrong, for the very reason that there always exists a moral or human duty not to do wrong.
2. However, a claim-right not to be prevented from doing something wrong, may exist, but it would just be a derivation of a social moral duty to tolerate certain evils. It could never be justified in the moral autonomy or freedom of the right-holder, but it would be the mere correlate of a “duty of tolerance” in order to avoid worse dangers. If society tolerates certain insult—for example, the repugnant utterances of Charlie Hebdo or other offensive expressions—the reason to do it does not lie in the moral autonomy or in the legitimate freedom of Charlie Hebdo or other rascals, but in the risks that could follow from banning Charlie Hebdo’s behavior. The very notion of free speech as a moral freedom grounded in moral autonomy, however, cannot cover insult.

2. My second thesis can be summarized in the following statement: the main reason for banning insult and religious offense should not be the protection of public peace or public safety, but the honor of the offended. Certainly, a measure of toleration of evil is necessary in any society. However, the reasons for banning an offensive behavior should not lie—at least, not mainly—in the preservation of the public peace. This approach has occasionally led the European Court of Human Rights to issue unjust and discriminatory decisions.

1. Let me illustrate this with an example. In the Decision Le Pen v. France (App. No. 18788/09, 10 April 2010), the European Court of Human Rights analyzed the fine imposed to Jean Marie Le Pen for “incitement to discrimination, hatred and violence toward a group of people because of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion.” Le Pen had made some statements in the daily newspaper Le Monde saying, among other things, that “the day there are no longer 5 million but 25 million Muslims in France, they will be in charge.” The Court said dismissed Le Pen’s appeal for manifestly ill-grounded, alleging that his statements were made in the context of a national debate concerning the integration of immigrants in their home countries, and that could give rise to misunderstandings. He said that France should have a wide margin of appreciation on this issue, since Le Pen could be creating confrontation between the French people and a community whose growth was presented as a danger for the nation.
   This decisions contrasts, in my view, with the case Erbakan v. Turkey (App. No. 59405/00), of July 6, 2006. In this occasion, the European Court of Human Rights condemned Turkey for violating the freedom of speech of Necmettin Erbakan, leader of the party Refah Partisi. The appellant had been sentenced to one-year prison and imposed a fine for incitement to violence during a speech delivered in a town that had recently been target of a terrorist attack. In the public meeting, Erbakan held that “all parties except his own” were “parties of the unjust, lovers of the infidel, defending a system allegedly based on self-interest,” and that “those parties had declared war, according to the Koran, against Allah.” The Strasbourg Court reversed the sentence on the basis that Erbakan was a public figure, that the evidences for condemning him were weak, and that there was no evidence of a “present” or “imminent danger” justifying the restriction on free speech (ECtHR, Erbakan v. Turkey (2006).
2. The contrast between these cases is just an example of an extended approach towards free speech in Europe. In Germany, for example, article 166 of the Criminal Code only punishes those religious offences uttered “in a manner which is suitable for causing a disturbance of the public peace” (in einer Weise […] die geeignet ist, den öffentlichen Frieden zu stören). However, restricting the punishment of offences to cases in which pubic peace is at risk is unjust, and it has perverse consequences. It creates an unjust discrimination and rewards the willingness to react violently against the offense. Of course, under this criterion, the Christian willingness to suffer must necessarily be discriminated against the willingness to practice the yihad. The scarce application of the crime of religious offence against blasphemous attacks to Christianity gives evidence of what I am saying. The main value protected by the crime of “religious offence” should not be public peace, but the “honor” of the victims and the dignity of the “sacred realities.” Public peace lies in the reverse of those acts with which we become worthy of public peace, namely, in those acts with which we protect basic goods such as the honor of the people. Indirectly, all Criminal Law protects public peace; immediately, however, criminal norms protect particular basic goods, for instance, the honor of religious people and the dignity of the sacred.

3. My third thesis is simple. In a pluralistic society, ideological censure is unacceptable, particularly in public universities and public research—this would require some nuance in the case of private institutions with a particular ideology. Here, I want to be very brief. I will quote Chief Justice Earl Warren in the judgment Sweezy v. New Hampshire (1957): “the essentiality of freedom in the community of […] universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.”

In a very similar way, the Spanish Constitutional Court has said that scientific research is possible only through academic freedom, particularly in social sciences and humanities, given the fact that such research “is always, by definition, polemic and disputable, since it is built upon assertions and value judgements whose objective truth is impossible to achieve with absolute certainty.” (Sweezy v. New Hampshire, 354 U.S. 250 (1957) Setting aside philosophical discussions on the meaning of “certainty,” I think that the Court is right, at least, in asserting that the conclusions yielded by social sciences depend on value judgments which are highly disputable in our pluralistic societies. Therefore, it would be quite unfair to impose silence on these matters on the basis of ideological positions.

As I have said, my plea for State neutrality holds valid in public institutions were there is not an “official truth” or an “official ideology.” The institutional settings of private institutions are different, for the preservation of their ideology serves to the freedom of conscience of those who choose such institutions as the most appropriate environment for their pursuit of truth. However, also in a private institution there must be a climate of respect and tolerance—of course, always within the requirements imposed by the legitimate “public order” of their ideological framework.

4. Finally, my fourth thesis concerns the use of apostrophes such as the suffix “-phobic”, or categories such as “hate speech”. Basically, we should reject them as ideologically biased.

1. In a recent work published in the context of current attacks to free speech in American campuses, Princeton Constitutional scholar Keith E. Whittington has rightly pointed out that, though “the category of ‘hate speech’ is sometimes framed narrowly to focus on threats, harassment, and personal insults”, it is “often” framed “very broadly to include arguments with unpleasant conclusions.” (Whittington, 2018, pp. 78–79; a reasonable attempt to depict a restricted concept of “hate speech” may be found in Strossen, 2018, pp. 53 ff. Both authors underline that “hate speech” is not a category belonging to American Constitutional Law). In the same direction, the US Supreme Court has explicitly asserted the right of students to “express any viewpoint they wish—including a discriminatory one”, in line with the “Court’s tradition of ‘protecting the freedom to express ‘the thought that we hate.’” (Christian Legal Society Chapter v. Martinez (2010)) In other judgment, R. A. V. v. St Paul (1992), the Supreme Court has explained that “government may not regulate” speech “based on hostility, or favoritism, towards a nonproscribable message they contain”.
2. The contrast between vague ideologically charged concepts like “hate speech” or the “–phobic” suffix contrasts with the clearer traditional categories of “slander”, “injury” or “insult”, on the one hand, and “calumny”, on the other hand. Of course, we may also find borderline cases with regards to these categories. However, they are less ideologically charged and more peacefully tailored than the ethereal concept of “hate speech” and the“phobic” label. We must not find striking the fact that “the Supreme Court” of the United States “has never recognized a special category of ‘hate speech’ that is excluded from First Amendment protection”, and the same applies to the so-called “phobic discourse”. As Nadine Strossen has pointed out, this does not mean, of course, that “all speech connoted by the vague phrase ‘hate speech’ is constitutionally protected.” (Strossen, 2015, p. xxi). It just means that the concept of “hate speech” is not an appropriate category to exclude the Constitutional protection provided by the First Amendment.

Fernando Simón Yarza

References

Augustinus (1956). Enarrationes in Psalmos I-L; Corpus Christianorum Series Latina, Vol. 38 (E. Dekkers and J. Fraipont (eds.). Brepols.

Plato. (2000). The Republic (G. R. F. Ferrari, Ed.). Cambridge University Press.

Bauman, Z., & Donskis, L. (2013). Moral Blindness. The Loss of Sensitivity in Liquid Modernity. Polity Press.

Brooks, D. (2015, January 8). I Am Not Charlie Hebdo. The New York Times. https://www.nytimes.com/2015/01/09/opinion/david-brooks-i-am-not-charlie-hebdo.html

Finnis, J. (2011). Human Rights & Common Good, Collected Essays (Vol. III). Oxford University Press (2ª ed.).

Gould, T. (2019, January 8). Petition Launched to Remove Law Professor for ‘Discriminatory’ Comments. The Oxford Student. http://www.oxfordstudent.com/2019/01/08/petition-launched-to-remove-law-professor-for-discriminatory-comments/

Klug, B. (2016, January 11). The Moral Hysteria of Je suis Charlie. Mondoweiss. https://mondoweiss.net/2015/01/moral-hysteria-charlie/

McDonagh, M. (2020, September 29). ‘I Was Beyond Being Damaged’: An Interview with Philosopher John Finnis. Catholic Herald. https://catholicherald.co.uk/i-was-beyond-being-damaged-an-interview-with-philosopher-john-finnis/

Plato. (2000). The Republic (G. R. F. Ferrari, Ed.). Cambridge University Press.

Sherwood, H. (2019, January 9). Oxford Students Call for Professor’s Removal Over Alleged Homophobia. The Guardian. https://www.theguardian.com/education/2019/jan/09/oxford-students-call-for-professors-removal-over-alleged-homophobia

Strossen, N. (2018). Hate. Why We Should Resist It with Free Speech, Not Censorship. Oxford University Press.

Whittington, K.E. (2018). Speak Freely. Why Universities Must Defend Free Speech. Princeton University Press.

Jurisprudence

Christian Legal Society Chapter of University of California, Hastings College of Law v. Martinez, R. A. V. v. St Paul, 505 US 377 (386).

Sweezy v. New Hampshire, 354 U.S. 234 (1957).

ECtHR, Erbakan v. Turkey, App. No. 59405/00 (2006).

ECtHR Le Pen v. Grance, application no. 18788/09, decision 10 April 2010).