If you arrived at this page by following a link I posted in a comment discusson with the claim it was child pornography (which I neither approve of nor posses) you’ve done the same thing that allowed the FBI to get extensive search warrants to look for child porn on the computers or in the mail of those who followed the link. While this behavior may not break new legal ground the fact that otherwise law abiding people are willing to follow this link out of mere curiosity, skepticism or the desire to see if I was telling the truth suggests that merely following a link claiming to offer child porn is not a good reason to believe that the person who did so is a bad person.

Additionally I have a significant problem with the idea that merely checking to see if something is child porn could itself be a crime. In particular this seems to have troubling free speech implications. The first ammendment has long been held to protect the consumption of media as well as it’s production. Now there is a good argument that child porn as the product of a criminal act ought to be exempt but the supreme court has ruled that computer generated child porn is protected by the first amendment. If it is illegal to follow the link because it might be real rather than CG child porn this seems to raise troubling issues about your first amendment rights. Moreover, surely you have a first amendment right to read media that is titled to be child porn but isn’t and since you can’t know what the content is until you actually view it how can clicking on the link itself constitutionally qualify as a crime?

Now one might argue that clicking on the link isn’t a crime, it only gives probably cause to believe a crime has been committed. True, I agree that members of a forum populated by pedophiles and perhaps advocates for legalization of child sex/porn are very likely to also possess child porn but clicking on the link is not evidence of a specifc crime and relies on impermissible considerations. It’s also true that people who belong to NORML are likely to have pot at home but surely we don’t want the government to be able to justify searches based on our protected first ammendment activity.

Anyway I haven’t had time to really think this through or research it so I might be missing something but these are my initial thoughts.

I think there is a good case for making the sale of child porn illegal and certainly the creation of child porn (by molesting actual children) should be heavily criminalized¹. However, the argument for criminalizing mere possession of child porn seems less strong. In particular I can think of a bunch of reasons off the top of my head why criminalizing child porn would increase the number of molested children. Let me summarize a few here.

1. There are documented problems with the harshness of child abuse penalties (lifelong sex offender status etc..) discouraging family members from turning in their relatives. No doubt people are going to be an order of magnitude more reluctant to send their uncle or brother to jail for merely possessing child porn (whatever the truth is they will tell themselves he doesn’t hurt anyone). If child porn was decriminalized it might encourage more people to report pedophiles they know to social services who can then provide treatment.
2. Making possession and sharing of child porn illegal radically restricts the reuse of child porn. Suppose there is X amount of child porn that has ever been made and X is more than enough to satisfy most people. If they could all access that X amount there wouldn’t be as much motivation to molest kids to make child porn. On the other hand by making it illegal we likely take a great deal of that child porn off of the internet and balkanize the rest of it encouraging more people to pay for child porn and thereby encourage others to make it.
3. Prohibiting possession of something always creates a criminal element who tries to deliver that thing. Organized crime creating child porn may harm children more than the alternative. It’s hard to rate relative badness of this sort of thing but being repeatedly molested by a criminal enterprise may be much worse than being occasionally molested by your uncle.
4. Whenever you criminalize an activity that a fair number of the perpetrators see as victimless (”I just downloaded the pics I didn’t hurt anyone”) you reduce the barrier to further crime. This is the same way that government prohibition of weed has made it a gateway drug. In the legal scheme where mere possession of child porn is a felony many people may not see it as a big leap to go from mere possession to purchasing child porn from sketchy eastern European websites. On the other hand if you make it a felony to purchase child porn but not merely to possess it you might very well do more to suppress the profit motive in abusing children.
5. I suspect that some people who like to look at child porn (or at least who would were it not a felony) are actually decent people who do believe that children shouldn’t be molested, they just happen to be turned on by it. For instance some girls both feel very strongly about protecting college girls from being taken advantage of yet also find porn that depicts it really hot. I have no reason to believe that there aren’t some people who are turned on by child porn who feel similarly. By decriminalizing mere possession you can enlist the aid of these people in tracking down the abusers who make the material.
6. Making possession of child porn a felony encourages people to be very careful about who they share it with reducing the distribution of any single image. This makes it much less likely that the child pornographer will be caught since it is less likely to make it to the police in a timely fashion.
7. Sending otherwise productive members of society to prison and especially inflicting punitive sex predator laws on them is not only a huge societal cost but makes them more likely to offend. The guy who is turned on by molesting kids but has a nice career, friends and family may very well keep his desires under control. Send him to prison for a few years because you find some child porn on his hard drive and he may very well become bitter and having little left to lose descend to actually molesting children.
8. Maybe people who would otherwise get treatment are scared of asking for help lest their child porn collections be suspected and they get sent to jail. Since therapy seems to be helpful in preventing more abuse this could be another potential avenue of harm.
9. Perhaps the release provided to pedophiles by looking at child porn makes them less likely to go out and molest. While I think this is the least likely of all these points it needs serious study not another mass media sensationalization about a correlation between the two (duh people who want to look at child porn more likely to molest kids).

Now maybe these factors all end up getting balanced out by other ones but I seriously doubt that these questions have been seriously studied. They certainly weren’t why we passed the laws against child porn. Frankly I don’t really know whether child porn laws help or hurt and given that I’m unsure I think the default state should be not to regulate speech/content. However, one can reasonably disagree with this point.

What one can’t reasonably disagree with is that we have a morally responsibility to seriously examine whether laws criminalizing child porn reduce or increase the number of children who are molested. If you are in a position to seriously influence the law (politician etc..) and you allow more children to be molested because you want to make something as disgusting as child porn illegal or just because you are too lazy to consider the arguments then your not much better (maybe worse) than a child molester yourself. At least child molesters have the small excuse of extreme psychological pressure but if you let it happen out of mere laziness you have no such excuse.

---

1. By child porn I mean photographic evidence of what would be otherwise termed molestation of a child. Teens taking pics of each other or people taking candid shots of their kids getting out of their bath even if later used for sexual purpose are not what I am talking about here. Maybe other laws should cover these situations but that isn’t the subject here, nor will I address here the question of where to draw various age lines. ↩

Just as I feared the “BONG HiTS 4 JESUS” case is eroding our first amendment rights in other areas. I’m stunned to see the effect so quickly but I’m not surprised, only horrified, by the ruling in Wisniewski v. Board of Education of the Weedsport Central School District. Follow the link for a very nice description from Decision of the Day but I’ll give a quick summary for the lazy.

Aaron Wisniewski, an eigth grade student, made a crude drawing of a teacher at his school getting shot and used it as his AOL IM icon for three weeks. Eventually another classmate snitched on him and the school suspended Aaron. The police and a school psychologist then talked with Aaron and concluded the drawing had been meant as a joke and he didn’t pose any threat. Despite this conclusion a superintendent’s hearing concluded the drawing should not have been regarded as a joke and proposed a long term suspension for Aaron which was approved. Aaron’s parents then sued claiming that “the school board acted in a retaliatory manner in violation of Aaron’s free speech rights.” (from the deciscion) It is important to note that all of the communication took place outside of school but that the superintendent’s hearing choose to punish Aaron anyway because his speech violated school rules and required time and attention from the school.

Disturbingly the district court apparently made it’s own determination that Aaron’s speech was reasonably understood as a constitutionally unprotected true threat, an obviously absurd conclusion¹. Now the appeals court avoided the issue of whether Aaron’s speech truly rose to this level but it seems to imply that it does not. In either case we can assume, arguendo, that it does not as we consider the central holding of the appeals court:

Even if Aaron’s transmission of an icon depicting and calling for the killing of his teacher could be viewed as an expression of opinion within the meaning of Tinker, we conclude that it crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon would come to the attention of school authorities and that it would “materially and substantially disrupt the work and discipline of the school.”

Just by itself this decision is greatly troubling in several ways:

1. Like Morse the decision seems to ignore the distinction between harm or disruption that results from the form of the expression (acting out during class) and that which results from the content expressed. A notion of free speech that allows the government to punish your speech if it makes people so mad they create a disruption or provokes them to a harmful response isn’t free speech at all. To modify a frequent example from the Volokh Conspiracy if a majority of the population wanted to ban pro-gay speech in schools all they would need to do is protest such speech so vehemently that it constituted a disruption of the school environment.². Importantly the deciscion doesn’t even seem to require that the school prove that the disruption was a based on a reasonable prediction³ of Aaron’s future violence.

2. Imposing this punishment accomplishes nothing particularly relevant to student discipline. Certainly the school has an interest in avoiding the trouble and expense of dealing with situations people (irrationally) think are threatening⁴ but they have the same interest whether Aaron was a student or a member of the general public. If the government’s interest in avoiding this sort of bother is enough to justify detering it in Aaron’s case why isn’t it enough to justify fining a student’s father, or brother, or friend who creates a similar drawing knowing it may get back to the school and cause similar effects.

3. The decision permits punishment of speech that took place outside of school and was never intended to make it back to the school. The court was divided on whether it was necessary that it was “reasonably foreseeable that Aaron’s IM icon would reach the school property” or “the undisputed fact that it did reach the school” is enough. In either case it apparently doesn’t matter how the speech will reach the school. This means that so long as those who find the speech distasteful are sufficiently fastidious about bringing any student statements back onto the school campus the student can be denied any means to publicly express the idea without fear of government retaliation.

However, bad appellate decisions are troubling but nothing new. What is even more worrisome is the way this deciscion shows that, as I feared, the reasoning in Morse v. Fredrick is being extended beyond student advocacy of illegal drug use. The simple timing of this opinion suggests that the appeals court may have been waiting for Morse to be decided to get a sense of which way the supreme court was leaning. Additionally the decision troublingly cites Morse v. Fredrick several times, both as an authority to limit the holding in Tinker and to justify the incoherent distinction between this sort of speech and “conduct that was merely ‘offensive,’ … or merely in conflict with some view of the school’s ‘educational mission.’”

Just as I feared you can’t undermine free speech rights just for the topic or situation you find particularly objectionable and hope that it won’t erode free speech more generally.

So over on language log Bill Poser recently wrote a post criticizing the BONG HiTS 4 JESUS decision. Poser argues that Robert’s and Alito’s opinion presupposes that the banner must mean something incorrectly ruling out the obviously correct interpretation of the banner as pure nonsense. In particular Poser responds to Robert’s opinion:

The dissent mentions Frederick’s “credible and uncontradicted explanation for the message - he just wanted to get on television”… But that is a description of Frederick’s motive for displaying the banner; it is not an interpretation of what the banner says.

This begs the point. No “interpretation of what the banner says” could be offered by Frederick insofar as it has no meaning. By dismissing any explanation for what was written on the banner that does not provide an interpretation, the Court assumes that it must mean something. Nowhere in the opinion is any justification offered for this assumption.

While I’ve already expressed my strong disagreement to the decision in Morse v. Fredrick’s I don’t find Poser’s critique compelling. For starters distinguishing between Fredrick’s motive for displaying the banner and it’s meaning surely doesn’t “beg the question” about the meaningfulness of the banner. Surely Fredrick’s motive for displaying the banner could have been just be to get on TV whether the banner said, “Take Illegal Drugs,” or, “Colorless Green Ideas Sleep Furiously.” I certainly didn’t see anything in Robert’s opinion that convinced me he refused to consider the possibility that the sign was meaningless, only that he concluded it advocated illegal drug usage.

Now I don’t doubt that Fredrick was not seriously advocating illegal drug use but what argument does Poser offer that the phrase, “BONG HiTS 4 JESUS,” isn’t advocacy of illegal drug use?

The kind of meaning that the Court purports to find is propositional. It claims, in effect, that the interpretation of the banner is something like “It is good to smoke marijuana even though it is illegal.” or “Go ahead and smoke marijuana.”. However, the banner does not, on any plausible analysis, contain the kind of syntactic structure that serves to express propositions, namely a sentence, not even a sentence part of which is not overt. Nor is this an example of a construction with an implicit verb, such as “Freedom for Tibet”, which means something like “Freedom for Tibet would be good” or “We support freedom for Tibet”. (The Court does not argue that the banner means “It would be good for Jesus to smoke marijuana.”)

But this is just patently false. Consider this salon.com piece “Rushing for Jesus”, or this “March for Jesus” page. The phrasing, “X for Jesus,” is generally understood to mean something like, “Do X for Jesus,” or “X honors Jesus.” Given the well established conversational norm that one should try to interpret utterances in a way which makes them meaningful this suggests that “BONG HiTS 4 JESUS” should be interpreted as saying, “Take bong hits 4 Jesus,” or “Bong hits honor Jesus.” While these sentiments were clearly not being expressed seriously by Fredrick they could reasonably be regarded as advocating illegal drug use. The clinching evidence that the banner is not mere nonsense similar to “Colorless green ideas sleep furiously” is this sort of response by protesters to the court’s opinion. Obviously I’m not the only one who immediately understood, “BONG HiTS 4 JESUS,” to be advocating taking bong hits in honor of Jesus.

Ultimately it was the fact that the court took Fredrick’s banner to be meaningful and then justified denying his free speech rights based on that meaning that made the decision so bad. The court essentially decided that some opinions (you should do illegal drugs) are so unreasonable as to not deserve 1st amendment protection. In effect the court has put itself into the position of deciding what sorts of ideas are worthy of protection, the very situation that the first amendment was designed to protect us against.

Most criticisms of Supreme Court rulings are based on nothing more than an antipathy for the result and insufficient understanding of the legal precedents. Such a case can certainly be made for the school busing and the campaign finance cases. However, the opinion in Morse v. Fredrick is just the opposite. The outcome can be reasonably defended but the decision is the worst in recent memories.

Briefly the background of the case is this: When the Olympic torch relay passed by Juneau-Douglas High School principal Morse let the students outside during school hours, still under supervision, to watch the procession. At the event Fredrick, along with others, displayed a banner proclaiming “Bong Hits 4 Jesus.” Principal Morse disciplined them for this behavior and Fredrick sued claiming his free speech rights were violated.

Now the result in this case can quite reasonably be defended. If you think that watching the relay was similar to a school field trip the school could reasonably ban students from display unofficial banners. Even if the school would allow general political speech at the relay, e.g., as they would during a nomination for student government, one could reasonably hold that the “Bong Hits 4 Jesus” banner wasn’t serious expression but mere disruptive humor or acting out similar to calling a teacher “a hairy moron” or the sexually suggestive speech in Bethel School District v. Fraser. However, the court (implausibly in my opinion) instead interpreted the banner to be a serious advocacy of illegal drug use and held that it wasn’t protected because it advocated illegal drug use. Indeed the official summary (accurately) describes the opinion as holding:

Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending Frederick.

In other words the court found a special ‘promoting illegal drug use’ exception somewhere in the first amendment. Importantly the court admits that this situation would not fall into the general first amendment exception for inviting imminent lawless action. It really is just a special exception to the first amendment for advocating drugs use. Alito did author a second opinion, joined by Kennedy which states:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

But it’s not clear if this is comforting or disturbing. For starters the fact that Roberts and Scalia didn’t join this opinion (Thomas would have just done away with free speech rights for students in general) is distressing. Worse as this post¹ by Eugene Volokh nicely lays out it just doesn’t seem coherent to support the holding of the opinion while claiming not to support any restriction on free speech “that can plausibly by interpreted as commenting on any political or social issue.” To give my own spin on what Professor Volokh is saying: unless Alito is saying that mere advocacy of illegal drug use is ipso facto not commenting on a political or social issue it seems that telling people to smoke more marijuana is necessarily a commentary on social issue, whether people should smoke marijuana.

Now no matter what you think about the drug war an exception to the first amendment based on the idea being expressed should be deeply disturbing. Deterring youth drug use might be an important government aim² but so too is/was defeating communism, preserving our democracy and helping the poor. If it is acceptable to ban advocacy of illegal drugs because the idea it expresses is harmful what prevents us from banning advocacy of communism, an unelected presidency or even cuts to welfare? If what counts as commentary on a political or social issue and hence what deserves free speech protection effectively turns on someone’s judgement that it is a reasonably viewpoint (apparently unlike thinking people should do drugs) then we don’t have any free speech protection at all.

Certainly it is better that this ruling was restricted to the case of student speech but the reasoning behind a supreme court decision often has as much impact as the ruling itself. I think I might have been more comfortable with a ruling (like Thomas favored) which denied students free speech entirely than one which legitimated a viewpoint based standard for free speech protection. I could go on for days about what a bad decision this was but I’ll stop here and let Steven’s dissent³ convey my feelings about the matter (emphasis mine):

The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner that Frederick has disavowed. … [T]he Court’s holding in this case strikes at “the heart of the First Amendment” because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson

Back when I was discussing the islamic cartoon controversy I made some pretty abstract and theoretical arguments to the effect that any principle which justified criticizing Jyllands-Posten for publishing the cartoons also justified criticizing Muslims for spreading their faith. Reading some comments over on Volokh I found a much more clear and concise way to make the point (thanks Bleu).

Rather than worry about atheists who may or may not find Islam’s claims offensive what about idolaters or polytheists. If one reads the Quaran (or the bible) one finds a great many passages saying very offensive things about people who engage in either of these practices. Additionally both of these books say very harsh and offensive things about magic/witchcraft which actually does result in discrimination/hatred/dislike of Wiccans.

Obviously this tells us we shouldn’t legally suppress material for being religiously offensive or insulting. If so the Quaran and the Bible would have to be the first things to go. However, I think we can take the argument a step beyond this. Simply being a Muslim (or Christian) and encouraging the spread of your faith or the continued printing of your holy book makes one just as guilty as Jyllands-Posten. In fact the evidence that Islam, Christianity and similar religions can incite hatred, violence and other atrocities is much stronger than evidence we had that mildly offensive cartoons could cause such harm. Therefore by teaching your children your religion, by openly expressing affiliation and thereby making it easier for others to join and especially by preaching or trying to convert people one is doing something much worse than Jyllands-Posten did.

Hopefully this is a more clear explanation of why I am willing to say that Jyllands-Posten did something unwise but not ‘blamable.’ Sure it probably would have been better if they hadn’t published but it sure as hell would be better if all the Christians and Muslims stopped advocating their religious beliefs (or better just stopped believing).

Also objections that the smack talked about idolatry, magic or polytheism isn’t really serious don’t fly. Some guy may be getting executed in Afghanistan for converting to Christianity so I think we can take it as given that many people take these crazy ancient rules seriously. Besides it is totally inconsistent to demand we look to what the Quaran says instead of what Muslims believe when asked if Islam encourages terrorism/violent jihad (disturbingly huge percents of Muslims in the middle east say yes) but then refuse to look at that book when we want to know if Islam is saying offensive things about Wicca.

I’ve been having a hard time elucidating why I thought that Jyllands-Posten hadn’t done anything ‘blameworthy’ in publishing the cartoons even though they may have made an unwise decision. This is the sort of thing I was afraid would happen, a ‘voluntary’ code of conduct prohibiting religious offense. I didn’t expect it to come out in a nice governmentally approved form but this just makes it more coercive and more dangerous.

It doesn’t matter what these rules say, there simply isn’t any objective set of rules which can prevent religious offense without banning justifiable criticism and likely giving unfair benefit to the religious over the non-religious. It is certainly possible that Islam is encouraging suicide bombing and a responsible suggestion of this idea, e.g., this argument, should surely not be effectively censored by this ‘voluntary’ code of conduct, and a religious groups determination to be horribly offended at any criticism should not change this determination. Yet the difference between this sort of speech and the islamic cartoons was a matter of responsibility, foresight, and good sense. If is entirely possible that the propositional content of the mohammed cartoon with the bomb on its head was just this. Any guideline is either going to be unable to make such a distinction or be so vague that it allows all parties to read in their own interpretation.

Moreover the entire idea of this sort of voluntary code is just stupid. If it is truly voluntary the public will hold the media responsible only to the extent they personally find some speech problematic or bothersome. In other words the same thing they do now but perhaps making it harder to do something most people find offensive. Yet it is exactly the offensive speech that the majority of the population finds attractive and won’t hold media accountable for that is the most dangerous. So long as the offended group has much public support only their egos are going to get bruised.

So this week ‘historian’ David Irving was convicted of holocaust denial and sentenced to three years in prison. Now David Irving is not only a liar, a racist, a misogynist and almost every other repugnant category one can fall into in this modern world and given that he knowingly came to speak in Austria despite an outstanding warrant he is hardly a sympathetic figure. However, the guarantee of free speech is only as strong as the protection that is given to the most unpopular opinions.

Laws against holocaust denial have always been a bad idea. Yes neo-nazis are still a threat in germany and holocaust denial seems popular in the arab world but making holocaust denial illegal just makes the activity attractively subversive. There is always a certain temptation to believe the government/society is part of a massive conspiracy, e.g., UFO conspiracy theorists in the states, and laws about holocaust denial just encourage people to vent their conspiracy theories through holocaust denial. The representative of the Simon Wiesenthal Center on the radio argued for the laws on the grounds that holocaust denial is still a real political football kicked around by people like the President of Iran but it seems clear, especially in light of the cartoon situation that having laws against holocaust denial just fuels this sense of outrage against the ’special treatment’ given to the jews. Convicting someone now of holocaust denial just inflames the fires of anti-semitism in the arab world and a sense of unfairness over the reaction to the cartoons.

Apart from the point about holocaust denial still being a real political danger (I agree but the laws just make it worse) the representative of the Simon Wiesenthal Center made two more unconvincing arguments (though to his credit he was very supportive of free speech and seemed to be somewhat half-hearted about these arguments). The first was that the context in germany and austria, where the holocaust actually happened, is considerably different than the context in the US. I don’t doubt that this is true but this is just another way to say people are really really offended. If this argument carried water it would apply just the same in the cartoon controversy. After all in an islamic context, or even a context with a sizable islamic minority mocking the prophet is a much more serious matter and unless you are just dismissing islam out of hand (which I’m willing to do just as with christianity but I suspect most people aren’t) the subjects of mockery are just as serious. If you really believe the prophet is the most important messenger of god he really is more important than the murder of millions of people, after all god could have intervened to stop the holocaust but chose not to do so but did choose to intervene to speak to mohammed. The representative’s other argument, that these laws ought to be given respect because they are the will of a democratic nation is particularly ironic in this context. Hitler, after all, was democratically elected in the Wiemar republic and as organizations like the Wiesenthal center are always reminding us the holocaust didn’t happen despite the objections of the german people but with their complicity. Democracies make plenty of bad laws and the will of the people is no defense for a bad decision.

Why get worked up about the situation? After all some scum-bag ends up in jail and there isn’t any important or useful speech chilled by the holocaust denial laws. We should be concerned because anti-semitism is still a serious concern. The perception of special treatment for jews is only going to inflame anti-Semitic views among arabs, especially in light of the cartoon controversy. Worse, I fear that in Europe these laws increase the chance of a resurgence of anti-semitism. There is nothing that fuels a movement like the sense of being the victims of unjust repression, the punitive treaties after world war I resulted in the nazi state and laws about holocaust denial may encourage a new generation of neo-nazi movements. Finally the possibility that serious debate will be chilled should not be dismissed out of hand. The holocaust was not localized in space or time and defining exactly what counts as holocaust denial is always going to be difficult. Though currently holocaust denial only seems to encompass denying obvious truths about the nazi death camps there is always the danger that in the future this law will creep to encompass more.

For consistancy’s sake, but also to discourage anti-semitism Austria, Germany and others need to repeal their laws against holocaust denial.

There is an interesting new post over on Balkinazation describing how the Bush administration cut anyone who had qualms over the treatment of Guantanamo inmates out of the loop. In fact they apparently even issued reports in these individuals names while leading these people to believe that the reports had been canceled.

It is this sort of behavior which makes the Bush administration truly dangerous. Sure I’m not a fan of Bush’s conservative policies or his tax cuts for the rich but these issues are to a great extent a distraction. Any administration makes a huge number of decisions that never attract public attention but the consequences of these decisions can be significant, both to the people involved and the country as a whole. The health of our government and way of life depends on these decisions being made well and this can not happen when dissident views are simply shut out or ignored. Sure sometimes one needs to go forward with a decision despite the fervent objections of a few people but it is important that the decision makers hear those objections and consider them. Clinton, for instance, had a policy of listening to dissenting views and hearing them argued out in front of him and I doubt (though I could be wrong) that previous republican administrations had this sort of lock-step attitude but whether or not it has past precedent it is very dangerous.

Also a few final words on the cartoon business. My last post should not be taken as any kind of softening of my attitude on the protesters or those demanding restrictions on free speech. Nor should it be taken as any kind of endorsement of a social standard which takes it as inappropriate to criticize someone’s religion, even if that religion is singled out for criticism on its own. While I tend to think that the difference between Muslims and Christians mostly stems from the fact that many Muslims still lie in old-fashioned patriarchal and tribal cultures it is perfectly appropriate to ask whether Islam plays any particular role in encouraging terrorism. (I’m sure both Christianity and Islam both do so to some degree but I’m unsure if Christianity would be any less bad in the same circumstance).

I most certainly do not support any type of social rule of conduct which demands any criticism of Islam be balanced by a criticism of Christianity or Judaism nor do I think that the cartoons in question went to far in any sense. I still believe that some Muslims’ overreaction to the cartoons should not be rewarded. All I am saying is that (assuming Jyllands-Posten didn’t have inappropriate motivations) the choice to publish the cartoons in this fashion may not have been particularly good strategy and ultimately may cause some harm without aiding the cause of free speech substantially.

In other words my attitude toward Jyllands-Posten is the same as my attitude towards google would be if they had chosen to stand on principle and not censor search results for the Chinese (assuming valid motivations in both cases). Just as it would inappropriate to hypothetically scold google because they didn’t realize their principled stand might actually harm free expression in China it would be inappropriate to scold Jyllands-Posten because their principled stand to publish completely reasonable cartoons might cause similarly negative consequences.

So it has been pointed out to me (thanks Ali) that my statements on the cartoon controversy are somewhat misleading. In particular it might seem like I think that it was a good idea for Jyllands-Posten to publish the cartoons. I was (and still am) trying to avoid coming to a conclusion on that issue just because predicting all the consequences of any international event is so damn hard. However, if I had to make a judgement now I would be inclined to say that the initial publication of the cartoons was a mistake. In particular had I been the editor in charge at Jyllands-Posten I would have either published only positive cartoons of mohammed or, more likely, published a set of cartoons mocking all major world religions. Such an action would have made the statement while avoiding provocking anti-ethnic sentiment or encouraging a grossly hatefull attitude toward islam. However, I believe strongly (much like the professor here seems to believe) that religions (to the extent they make claims about factual historical occurences like resurrections and guys talking to god) are just another false belief and that excluding religious belief from criticism under the guise of tolerance inappropriately sends the messages that these beliefs are reasonable (for more on the reasons that giving religious beliefs special consideration is dangerous I highly recommend “The End of Faith” by Sam Harris).

Of course if goes without saying that if Jyllands-Posten published these cartoons with the intent of whipping up hatred of a religious minority such an action would be dispicable. However, the explanation that they gave claiming their intent was to inspire debate on self-censorship over depictions of the prophet even in positive lights seems at least facially plausible especially given the fact that many of the cartoons are quite respectfull or critical of the project itself. Not having information casting serious doubt on this explanation I think it would be hasty to accuse them of anything except an unwise deciscion. In particular I am hesitant to say that the paper should not have published these cartoons as this suggests that beyond just having negative consequences the choice actually violated some reasonable societal standard of acceptable speech and this is a much sterner standard than just having bad consequences. Assuming Jyllands-Posten had the frame of mind they claim I think their publication is more similar to a hypothetical situation where Michael Jackson came out of the closet than a newspaper publishing an editorial rant claiming blacks are inferior to whites. Just as it would be unwise for someone suspect of child molestation like Michael Jackson to admit his is gay as it would further negative stereotypes of homosexuals so too it might have been poor judgement for Jyllands-Posten to publish the choice of cartoons that it did but in neither case should we deem this error in judgement beyond the pale. There is a great deal of difference between directly making harmfull statements and not properly weighing the consequences of people’s interpratations of your speech. This is the same reason we don’t blame the parents of the protestors for choosing to teach them islam in such a fasion which made them liable to be offended by such charecterization.

However, once the cartoons were published and there were protests against the Danish deciscion not to legaly censure Jyllands-Posten I think it was important not to reward such protests. Had the protests merely been against Jyllands-Posten for publishing I probably wouldn’t have reposted the cartoons but given the boycott against Danish products in general I think it was an important point to make that getting really upset at criticism will not (and should not) protect your religious beliefs from criticism. In other words the justification to republish the cartoons is the same as the justification for not negotiating with terrorists (no suggestion of moral equivalence), don’t encourage demands for censorship. Besides the deciscion facing the republishers was significantly different than that facing Jyllands-Posten. Given the context given by comments from the vatican and other officials a deciscion not to republish the cartoons sent the message that religious beliefs deserved special protection from criticism. Of course it would have been better if the solidarity publications also published cartoons critical of christianity and judaism as well (and I’d be more than happy to do so if someone wants to send me some) but they hardly have the obligation to put additional non-newsworthy items on their pages. To be absolutely clear let me emphasize that I think there was absolutely nothing over the line or inappropriate about the pure content of the cartoons, however, it is quite possible that expressing this content that particular context could have negative repurcussions.

Finally I should point out that while I am greatly concerned about things like the Racial and Religious Hatred Bill (which failed to pass in England only because Tony Blair didn’t bother to stay around to vote) which would have made insulting, abusive or reckless speech about a religion illegal (language taken out in the ultimate version) the ability to critisize islam should not be our greatest fear. Political correctness and this unfortunate attitude that just because something is a religious belief it is beyond criticism will only go so far in protecting minority viewpoints. What I am truly worried about is what over at Volokh they called censorship envy. In other words once we start restricting, or even deeming unacceptable, speech critical of islam in the admirable goal of avoiding ignorant hatred other larger groups will demand the same protection on issues they find offensive. I think we already see this happening with the UK’s ban on glorifying terrorism, an ambigous term which could very easily be interpreted to make it illegal to argue that Palestinian terrorism in response to Isreali occupation are justified. I suspect part of the reason this statute was passed was to avoid criticism that labour was willing to restrict the rights of UK citizens to critisize islam they would not act to make speech that offended Britons by glorifying the London bombins illegal. While I certainly don’t agree that Palestinian terrorism is justified this claim, as an abstract philosophical point not a call to violence, is certainly within the realm of political/scholarly discourse. After all if you believe that terrorism will be effective in gaining a Palestinian state, the Isreali occupation is as morally bad or worse than British colonial occupation of the US, and the US revolution was justified, three not particularly extreme views you are inevitably lead to this conclusion (though I tend to doubt all three points).

In other words it is always the minorities who suffer the most when freedom of expression is abrogated and I am afraid that all the calls to restrict statements that offend the islamic faith will ultimately backfire on muslims. Nationalistic and christian groups will demand equal protection for speech that offends them and ultimately juries will punish minorities not majorities. However, the question is how will the minorities and majorities form. The worst case scenario is a return to racial hatred or a ganging up of public opinion against Islam. Admitedly I have probably underestimated the likelihood of this scenario because in the circles I occupy (Berkeley among others) it is unthinkable and it is inordinate respect for religious belief which is more likely to restrict expression. However, I am just as concerned that the impression of greater protections (legal or pragmatic) for Islam will fuel the anger as I am that things like the Jyllands-Posten cartoons will inflame it. At the very least particular criticism of Jyllands-Posten seems an inappropriate focus when anti-immigrant rags are a common feature of European politics. Given the dichotomy between the reactions to these everyday ethnic attacks and the strong criticism of the cartoons, particularly from religious sources, I cannot avoid the conclusion that far from being a proportionate response to a publication that might inflame racial tensions the response by Americans and Europeans to the cartoon controversy reveals a inappropriate deference to religious sensibilities that would not exist if we were talking about other sorts of beliefs like political affiliation.