Infinite Injury » Free Speech

Is This Grounds To Search Your Computer and Postal Mail

TruePath — Fri, 21 Mar 2008 04:22:41 +0000

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.

Should Possession Of Child Porn Be Illegal?

TruePath — Sat, 15 Sep 2007 17:18:45 +0000

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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. ↩

Morse v. Fredrick Already Causing Harm

TruePath — Tue, 10 Jul 2007 05:01:20 +0000

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:

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.
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.
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.

I mean come on people, absent strong contextual clues to the contrary a silly student drawing depicting a teacher being killed is obviously not a threat. The fact that news reports about school shootings have made people paranoid simply don’t change that fact. ↩
If one strains hard one might be able to interpret this ruling so as to only apply to student speech, “reasonably understood as urging violent conduct.” But this is no solace at all. In the 50′s this standard would have swept up the black civil rights activist who merely voiced the philosophical belief that it is morally righteous to respond to attempts to enforce segregation with violence. ↩
Even if it had this wouldn’t be quite enough. Suppose it turned out that as a statistical fact students who express the belief that Mein Kampf is a great work of literature are significantly more likely to kill their teachers than the average student. This still wouldn’t make it acceptable from a free speech point of view to punish those who express this belief. ↩
One can’t just assume that the administration responds to this behavior only if they seriously believe it to be a threat. In the current political climate school administrators can’t afford to let incidents like this pass without action just in case they turn out to be wrong. ↩

BONG HiTS 4 JESUS:

Bong Hits 4 Jesus
Nonsense banners and Advocacy Ascriptions
Morse v. Fredrick Already Causing Harm

Nonsense banners and Advocacy Ascriptions

TruePath — Sun, 08 Jul 2007 05:35:52 +0000

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.

BONG HiTS 4 JESUS:

Bong Hits 4 Jesus
Nonsense banners and Advocacy Ascriptions
Morse v. Fredrick Already Causing Harm

Bong Hits 4 Jesus

TruePath — Fri, 06 Jul 2007 19:33:50 +0000

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

I highly recommend reading the rest of the posts in this series (scroll to bottom of post) on the Volokh Conspiracy about this issue. It includes a very interesting discussion on this particular issue between Orin Kerr and Eugene Volokh. ↩
It is one thing to acknowledge that drug use leads to a great many problems it is another to think that those students who don’t now use drugs would be greatly harmed by trying them. I suspect most people with the psychological problems and lack of social support that make them vulnerable to psychological dependence on marijuana are already using while most of those who could use marijuana responsibly (the way most people use alcohol) are not. Moreover even if deterring more students from trying marijuana was a critically important government task it has not been established that forbidding drug advocacy accomplishes that goal rather than further increasing the forbidden fruit effect. ↩
Joined by Souter and Ginsberg. ↩

BONG HiTS 4 JESUS:

Bong Hits 4 Jesus
Nonsense banners and Advocacy Ascriptions
Morse v. Fredrick Already Causing Harm

Wicca and Islam

TruePath — Sat, 25 Mar 2006 15:30:47 +0000

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.

Danish Cartoons:

Why I Didn’t Want To Call It “Blamable”

TruePath — Tue, 07 Mar 2006 08:20:42 +0000

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.

Danish Cartoons:

Free Speech Unless Someone Really Really Cares
Here Are The Cartoons
Are Gays Obligated To Stay In The Closet
Clarification on Cartoon Position
Disturbing Deception Over Guantanamo and A Few Last Words On Cartoons
Why I Didn’t Want To Call It “Blamable”
Wicca and Islam

Holocaust Denial is Free Speech Too

TruePath — Tue, 21 Feb 2006 19:02:05 +0000

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.

Disturbing Deception Over Guantanamo and A Few Last Words On Cartoons

TruePath — Mon, 20 Feb 2006 21:56:07 +0000

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.

Danish Cartoons:

Free Speech Unless Someone Really Really Cares
Here Are The Cartoons
Are Gays Obligated To Stay In The Closet
Clarification on Cartoon Position
Disturbing Deception Over Guantanamo and A Few Last Words On Cartoons
Why I Didn’t Want To Call It “Blamable”
Wicca and Islam

Clarification on Cartoon Position

TruePath — Sun, 19 Feb 2006 06:20:33 +0000

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.

Danish Cartoons:

Should Congress Stop Search Engines From Going Chinese?

TruePath — Mon, 13 Feb 2006 18:18:34 +0000

So in a previous post I argued that all the criticism of google for establishing a censored version of its search engine in China is unjustified. Now some lawmakers want to make it illegal for US search engines to locate in China and probably prevent servers for blog content and other applications that might give the Chinese government leverage over free speech. I believe that the bill would also attempt to prevent Google and Yahoo from offering censored search results for the Chinese (even on a server in the US) and prohibit the export of technology to let others do the same (no shipping China a box of servers and selling google.cn to some local company). Ironically such a bill might have first amendments problems of its own. Free speech rights have been understood not only to protect your right to say something but also not to say something, e.g., the government can’t force newspapers to parenthetically say “which some people believe is murder” whenever they mention the word abortion, and arguably telling a search engine that they can’t return some subset of their results when someone goes to google.cn would raise such an issue (though since the audience is not inside the US their is probably wiggle room). Putting aside the interesting legal questions I want to discuss the wisdom of such a bill as well as the irony of passing such a bill in the current political environment.

Since I’ve already talked about the whole google China thing here recently I’ll put the rest of the post in the extended entry and give my front page a break.

ASIDE: I just heard someone on the radio ask something like, “Does free speech mean we must endure insults to The Prophet.” Of course it does. Everyone is in favor of free speech except for… the Chinese government included. The central principle of freedom of speech is that being offensive is never grounds for banning speech. Free speech except for religious, ethnic or whatever sort of speech just isn’t free speech (banning speech that is directly harmful, e.g., the fire example, ordering a hit etc.., is not about offensiveness and hence a truly different matter).

Ultimately I don’t think I favor the bill in its full form but I want to make it clear that supporting this law is a reasonable position unlike the ridiculous criticism heaped upon google (though finally the media is doing better). If refusing to bow to Chinese demands for censorship is to the benefit of the Chinese people then we need to stop all search companies from giving in. Asking one company to stand on principle while its competitors buckle to the Chinese demands just makes sure that virtue is punished and the Chinese people use the other search engines. It is one of the principle benefits of the free market that it tends to overcome personal conviction and social norms. This is the reason we don’t live in a boringly puritanical society where no porn is sold, TV is only educational programming and those ‘brain rotting’ don’t exist. The free market behaves as the Internet is supposed to behave (but doesn’t) and routes around attempts to deny desired products. Unfortunately in this case the desired product is a search engine that works fast and reliably in China and given the Chinese governments censorship policy this means censored search results. If we don’t want US search companies to offer censored services for the Chinese a law is the only way to do it. Even if public pressure convinced MS, Yahoo and Google to all withdraw their censored Chinese services some other company would show up on the scene to cash in on the huge Chinese market.

The important question though is whether we do want to stop US search companies from offering censored search. Certainly it would be best if the Chinese citizen could access content freely but it would be hopelessly naive to believe that China would just give up on its campaign of censorship because it doesn’t. Also by the same argument I gave above we should expect non-US companies to crop up offering search. The bet we would be making by banning US companies from censoring results for China is that our technology and know-how in search technology will be able to out pace the technology and know-how that an Indian, Chinese or other non-US country will generate when fueled by the potential revenue of a billion Chinese citizens. Personally I don’t think this is a good bet to make. The number of companies that provide search results is a testament to how easy it is to do adequately and the risk if we bet wrong seems too great. I suspect that any non-US company that rises to prominence because of a willingness to censor results for China is going to be much more inclined to censor in general. There are plenty of other repressive regimes out there in the world but most of them simply don’t have the size and economic potential of China and hence can’t expect new search companies will spring into existence just to censor their results but if this new Chinese search company was willing to do so I expect they wouldn’t hesitate to take advantage of it. In other words I don’t think (and really would protest if so) that google, Yahoo or MS is going to offer Iran a search that blocks out pro-Israel propaganda or information contradicting the governments nuclear propaganda but the new companies we would create by denying these companies access to the Chinese market very well might. Even worse if these search companies were created by people without a commitment to western style free speech they might voluntarily choose not to return results offensive to Islam or they feel are pornographic.

I also find the argument that closer ties and trade with China will improve the lot of the Chinese people in the long run. I have to give the Representative (Chris Smith) introducing this bill credit for being consistent as unlike a lot of congress he doesn’t seem to think human rights will benefit by embracing China (but I may be mistaken). I agree that China still has many human rights issues but I disagree that there hasn’t been significant progress. A middle class is forming in China, trade and business deals are allowed, press freedom seems to be increasing (even if the penalties for going to far are still severe), and most importantly the opinion of locals seems to carry increasing weight. The idea is that this helps in the long term and I think there are signs that this is the case. The idea that China should just wake up tomorrow and decide they are a western democracy with all the associated rights is as ignorantly idealistic as was Bush’s belief that the Iraqi people would greet us with open arms for bringing democracy. Remember people’s rights can be violated by plenty of people besides the government and the current state of Russia provides some lessons about what can go wrong in a sudden switch to democracy.

I think the better approach is not to demand China change overnight but to bargain with them to minimize the human rights violations. In this case I think that means we should engage in diplomatic negotiation with China to work out a compromise on internet censorship, i.e., we agree to let US companies censor certain sorts of results and China agrees to weaken its censorship of the internet in return. Perhaps this is what is going on and congress’s legal threats are really just posturing to convince China we are serious and if so I applaud them. Hopefully what can come out of all this is a bill which allows our internet companies to compete in the essential Chinese market but establishes regulations on the type of censorship that can be done and the type of data that can be turned over. Such a law might allow US companies to do what the need to do to make sure China doesn’t spawn a new flock of censor friendly search companies but make sure they didn’t cave to places like Iran that don’t pose the same risk. The part of the proposed law I like is the bit about servers not being located in repressive regimes. I don’t think it should apply to all servers, rather, I like the idea that US companies wouldn’t be allowed to save any information on servers in China that might help the government identify dissidents, i.e., they could run search engines in china but if they want to save info about who is searching or to whom some blog belongs to that information would need to be kept inside the US and US laws would prohibit them from turning it over. I don’t know enough about international law to know if this is plausible but the idea sounds appealing.

I have to remark that I find it pretty ironic that people are worried about google censoring their Chinese results at the same time as they are criticizing Jyllands-Posten for publishing these islamic cartoons and many people are suggesting that it should be illegal hate speech. I realize that these two groups may not overlap too much but the people criticizing google haven’t seemed to be anywhere near as worked up about the calls for censorship in the cartoon fight. In fact Jyllands-Posten published the cartoons to point out that media companies were acting just the way people are criticizing google for acting, i.e., refusing to display otherwise appropriate material because some group told them they didn’t like it.

Are Gays Obligated To Stay In The Closet

TruePath — Fri, 10 Feb 2006 02:40:44 +0000

ASIDE: Just in case you don’t believe the threat to free speech is real

I’ve posted several times on this issue but I wanted to take the time to reply to several points that I have heard in the media or that were made in response to my comments. In particular I want to clarify my position on the issue and try to distinguish some subtle issues surrounding this controversy. Before I do let me just remind everyone that the anger in the islamic world was greatly enhanced (perhaps primarily the result of) three fake cartoons (one of which isn’t a cartoon) and seems to be more a response to the widespread (though scarily far from universal) western unwillingness to punish/condemn the publishers than outrage at the actions of one newspaper. Also there is no reason not to believe Jyllands-Posten published the cartoons with the well intentioned goal of drawing attention to an important free speech issue. In fact compared to cartoons critical of other religious groups these images aren’t even particularly insulting. In fact it is far from clear that these cartoons are (objectively) offensive/insulting to islam at all. Most christian westerners wouldn’t find an image of christ carrying a machine gun really truly offensive if it was drawn to illustrate the supposed hypocrisy of our born again president pursuing war.

Despite the relatively mild content of the cartoons many people, including governments and politicians, have criticized the newspapers for publishing offensive content. The argument, made in the comments here as well, goes something like this. The newspapers and publishers knew that the cartoons were likely to offend some people even suggesting that they should have foreseen the violent protests and harm to property and life. Therefore since one should try to avoid doing things that cause other people pain or harm it was wrong for the newspapers to publish the cartoons. In other words Jyllands-Posten missed that day in kindergarten about not hurting other people’s feelings.

This argument is flawed in many respects, chief among them the fact that we don’t believe we should always avoid hurting other people’s feelings. For instance Martin Luther King’s protests in the south certainly offended a great many southern whites and we surely don’t think he should have avoided saying things racists found uncomfortable. Of course it was directly necessary that MLK offend people to achieve his noble end but there are plenty of other examples where we feel the same intuition. Does a gay man have an obligation not to come out because his orientation might give his christian community offense? Should a newspaper refuse to publish editorials favoring gay rights because some christians get upset? Is it wrong to write a letter to the editor urging support for Ralph Nader knowing that some businessmen will (perhaps incorrectly) interpret your support as an offensive attack, even if you think Nader’s cause is hopeless? Since many muslims seem to be offended by the unwillingness of the west to support a curtailment of free speech do bloggers (even those critical of the newspapers decision) have a responsibility not to state their belief that Jyllands-Posten shouldn’t face legal repercussions?

If you agree that it isn’t obligatory to hide your sexual orientation, reasonable political positions, or some other important form of self-expression just because you know some people will be upset by what you say why doesn’t Jyllands-Posten deserve this same defense. While this point would be compelling regardless there are plenty of public depictions of the prophet that have been deemed inoffensive by the very muslim groups that are protesting these cartoons, e.g., the supreme court fresco depicting law-givers. So in essence the islamic protesters (at least those who haven’t been mislead) are simply demanding that we not say negative things about their religion (hypocritically so as many other bloggers have documents pervasive anti-jewish and some anti-christian expression in islamic society). Since a demand for preferential immunity from criticism is clearly unreasonable it is no more right for European newspapers to keep these cartoons out of their papers because muslims raise a fuss than it would be for the New York Times to censor letters to the editor which criticize affirmative action because this offends some liberals. Any other position would just encourage groups to become more easily offended by rewarding them with the power to effectively censor critical opinions.

Even if you think that one has an obligation to avoid causing offense/pain even in these situations a criticism of the European newspapers is deeply unfair. As I observed the publication of the cartoons only indirectly caused this great outcry, the forged cartoons and misleading propaganda spread by some imams and perhaps the lack of near universal western support for curtailing freedom of speech were the direct causes of the offense and the violence. Certainly an argument could be made that the publishers of Jyllands-Posten should have known of guessed that this was a likely consequence of their actions but under this standard muslims are even more guilty. I don’t just mean the imams who fanned the fire or even the people protesting but anyone who teaches, propagates or otherwise supports a religion/interpratation that is likely to find cartoons like this so offensive. It is pretty obvious that sooner or later someone is going to depict the prophet in a less than flattering light so helping to propagate a religion that finds this offensive is just as knowingly causing pain and offense. Besides one could easily guess that people like me are offended by demands for censorship (self of otherwise) of this kind. Thus if Jyllands-Posten is morally culpable for publishing these cartoons then so is every parent who raised their children to be islamic.

The primary problem in this debate is a confusion between two senses of the word ‘should.’ We use the word both to mean one is obligated to do something as in ‘you should not commit murder’ and to mean that one choice might be somewhat better than another even though there is no obligation, ‘I know you’ve never met Kristen but you should send her flowers they would make her feel better.’ While in this later sense of the word it is true that one ‘should’ donate all your money to charity and become the next mother Teresa we don’t judge people to have an obligation or to be blameworthy if they do not. At best the argument that Jyllands-Posten should not have published the cartoons might establish that all things considered it probably would have been better if they had not. It can not establish that it was blameworthy or a violation of some moral obligation for them to publish the cartoons.

At the end of the day I think it is crystal clear that Jyllands-Posten did not do anything blame worthy. The question of whether it on the whole hurt or helped things is much more murky. The harms are immediate and clear to see while the benefits are diffuse and abstract but this doesn’t mean they aren’t even more important. I think the situation is somewhat analogous to a black person in the early 20th century south publicly claiming to be just as good as white people. His remark gains neither him or other minorities any benefits, in fact likely brings retribution. Nor does it bring any knew intellectual ideas to the table. By making this remark he offends many racist whites and even encourages violence and conflict. Yet despite these immediate and clear harms his statement probably does good in the long term. If one allows a misguided group to control the public discourse with threats of violence or even just offense important ideas are stifled, people come to believe what isn’t criticized is right and social change is forestalled. By stepping out and taking the heat for being critical of aspects of islam (or perhaps islam itself) Jyllands-Posten, like generations of blacks in the south who refused to completely knuckle under (though involving far less personal courage and nobility), makes it easier for others to express important ideas or change the culture. The exact same point could be made about gays coming out of the closet. In particular if muslims are forced to take the heat of criticism in the west the same way other religions and ideas must they will ultimately find it less big of a deal. In ten, twenty or maybe 50 years criticism of islam will seem less shocking to muslims the same way christians in the west now tolerate displays that would have outraged them just 50 years ago. While the violence and deaths are tragic I think the increased freedom of expression and hence possibility for religious reform this will offer to future muslims may very well be worth it.

Since this post is already too long I will address the racism argument below. So many people (including former president Clinton) have argued that these cartoons are somehow comparable to anti-semitism. Even if so they should be treated exactly the same way we treat anti-jewish cartoons like the one linked above. However, this falsely misunderstands anti-semitism to be a religious criticism of jews. The very name implies that it is about an ethnic group (though arguably the wrong one) and declaring oneself to be non-practicing hardly lets jews escape from anti-semitic hatred. When I point out that it is stupid and ridiculous to believe that some man in the sky is specifically looking out for your ethnic group (despite your historically disadvantaged position) I am simply not being anti-semitic. Even if I were to say (I’m not I just don’t know) that religious faith in judaism tends to encourage unproductive hate/resentment of Palestinians it just wouldn’t be anti-Semitic because I would be criticizing a belief held by these people not their ethnic makeup. Similarly criticizing muslims for supporting suicide bombing is simply not like racism or ethnic prejudice.

Of course this distinction is irrelevant unless there is a good reason for us to treat the two categories . After all they both tend to be set by the circumstances of one’s birth and create strong feelings of group identity. Unlike race religious beliefs can be influenced by criticism, argument and social pressure. While it may be rare I stopped being a catholic because of rational arguments. More commonly people change their religion when they marry or move to a community with a differing faith. However, these dramatic changes of belief are not the only way religious belief changes. More important in a large sense is the slow evolution of religious doctrine inside a given tradition. Though (with some exceptions like the reformation) most people born catholic stay catholic nevertheless the modern catholic church is a great deal different than the one that performed the inquisition. The greater freedom members have to hear and exchange ideas critical of the church or elements of its teaching the faster these changes happen. While I’m not arguing that the cartoons themselves are likely to shift islamic teaching much (though it is valid to criticize the connection of the religion to violence) familiarity with this sort of criticism makes it less likely the scholar in the middle east who says we shouldn’t interpret the Koran literally will end up getting killed.

Additionally there is simply more in need of discussion about religion than there is about race or ethnicity. We have strong evidence that genetic differences between the races are exceptionally small. One can still quibble about whether or not different races have slightly different proclivities and abilities but one can’t make a serious argument that just being black (as opposed to the cultural context race is embedded in) makes one several times more likely to murder someone. However, it is quite plausible that convincing someone that martyrdom is rewarded with beautiful virgins does radically increase their changes of being violent. I sure as hell I know I would be more likely to blow myself up if I thought it got me good sex in heaven. Apart from the pragmatic social impacts a religion is also making claims about how the world works. These claims are either true or false like other claims and one must argue and analyze them to determine their veracity. It doesn’t even make sense to talk about an ethnic group being true or false the way it does with a religion.

I also think it would be a mistake to underestimate the enjoyable feeling of being right in the face of adversity. Whatever your religion you have to believe there are tons of people out there believing falsely and nevertheless trying to make martyrs or otherwise seeking out adverse situations. There is a certain perverse pleasure in believing you and yours persist in hanging on to the truth despite outside criticism. So there is a certain emotional reaction which softens the blow of religions criticism which often isn’t at play in ethnic criticism.

So even if you don’t buy into the intuitive distinction between beliefs and other voluntary/representational states and skin color there are valid reasons to believe we should not condemn religious criticism the same way we do racist speech. If my arguments weren’t convincing you still must recognize that there is a pretty significant distinction between properties of our bodies and beliefs. Thus it is quite reasonable to draw a line between criticism based on these two different traits. However, if you lump religious criticism in with racist speech as being totally unacceptable (morally not legally) there seems to be no way to draw a distinction between religious beliefs and other sorts of beliefs. After all religious beliefs are just a set of beliefs people tend to believe strongly and learn from their parents and this isn’t much different than political affiliation. As I’ve already argued I think giving religious beliefs special treatment is nothing but discrimination against the minority non/anti-religious viewpoint.

Danish Cartoons:

Free Speech Unless Someone Really Really Cares
Here Are The Cartoons
Are Gays Obligated To Stay In The Closet
Clarification on Cartoon Position
Disturbing Deception Over Guantanamo and A Few Last Words On Cartoons
Why I Didn’t Want To Call It “Blamable”
Wicca and Islam

Here Are The Cartoons

TruePath — Thu, 09 Feb 2006 01:45:18 +0000

Someone asked for the cartoons so here they are:

Danish Cartoons:

Free Speech Unless Someone Really Really Cares

TruePath — Wed, 08 Feb 2006 03:01:54 +0000

Some time ago when I warned and the danger of giving the UN, or even some cooperative arrangement with the Europeans, control over the internet I suspect my concerns about free speech seemed paranoid and irrationally pro-american (trust me I’m anything but). Sadly, the reactions by Europe, the UN and other nations to the islamic cartoon controversy have demonstrated that the European and International support for free speech is even weaker than I imagined. I will try an do my part to combat censorship by supporting (if I can) the BUY DANISH campaign to offset the effect of the economic sanctions and boycott. Hopefully I can convince you to do the same in this post. Also while I support the idea of reposting the cartoons to show that calls for censorship will have the opposite effect (solidarity is such a weasel word) I think it would just be pretentious to think I would be doing more than wasting space here. So consider the cartoons reprinted here and if anyone reading this would actually be offended or outraged if I did post them send me an email and I will post them for you.

When I first heard about this controversy I thought it was kinda silly. Another moronic religious group getting upset over a silly and pointless (though still worthy of legal protection) publication of some cartoons. Sure the US state department criticized the publication as did the UK government through Jack Straw but this seemed like nothing but the standard governmental critique of statements they find disagreeable not a serious attack on free speech (even if both statements have been misquoted). However, a bit of research showed that the original publication wasn’t merely a pointless stunt like the Piss Christ display but was a reaction to the existence of an effective curtailment of free speech in Denmark by fear. Additionally while the reactions by the US and UK governments were unfortunately lacking in any strong defense of free speech many other European and international organizations actively attacked that.

However, a bit of online research revealed the true extent of the attack on free speech. Of course their was condemnation by islamic countries with some even imposing economic sanctions but that is unfortunately unsurprising. More disturbing was the fact that there was only weak and isolated support for Denmark’s stand on free speech from other governments with some first world countries like Russia and the Vatican suggesting that the right to free speech ought to be curtailed. Most disturbing though was the response of various European and International institutions. Parts of the UN are proposing investigating Denmark for racism with the Human Right’s Commissioner suggesting she is critical of the decision by Denmark to respect free speech. Parts of the Norwegian government are suggesting that this type of speech are banned by laws against hate speech (or at least trying to make it look like they believe this). The Council of Europe is explicitly criticizing Denmark and the EU has been making critical noises. Of course the EU did come out against any boycott of Danish goods and I suspect all of these organizations are at least somewhat internally divided but what is disturbing is the public support this suggests for curtailing free speech. In fact there is even a push in some quarters to create international laws limiting anti-religious speech.

Unfortunately I think this sort of erosion of support for free speech in Europe was inevitable. The Europeans (the british slightly less so) have always had a weak stomach for free speech. They have never really accepted the notion that even truly unpalatable or offensive speech must be tolerated (so long as it isn’t a direct incitement to violence) and most European countries have some laws against racist speech or other ‘really bad’ types of speech (I’m not crediting the US citizen with any great virtue…probably just an effect of our government or greater diversity). Once some types of ideas (blacks are inferior, the holocaust never happened, etc..) are made illegal it makes it much easier to slide down a slippery slope of restricting more and more types of expression. Additionally the greater role of the government in supporting arts, media and other forms of expression more frequently forces the government into the role of deciding what sort of speech is acceptable and blurs the line between government and private speech.

Of course it is true that some types of speech (holocaust denial, racism, etc..) are deserving of legal protection but are nevertheless morally reprehensible to make. Unfortunately many people in this controversy (including some US papers) make the mistake of equating religious offense with the kind of truly objectionable speech like racist denunciations. Not only is this an error but the ultimate effect of such a classification would be disastrous. The classification is in error because, as many people have pointed out, religious belief is something people can adopt or reject not a fixed unalterable aspect of their being. Thus it is important to criticize religion to influence people’s beliefs and that criticism is bounded in the negative effect it can have. One can never believe the harms of being criticized for your faith are worse than the benefits provided for being faithful otherwise one could just give up your religion, i.e., bearing religious criticism gives the sufferer a feeling of righteous struggle while the victim of racial discrimination might only feel oppressed.

More important though is the pragmatic consequence of ruling religious offense out of bounds. Since there is neither an objective standard of what constitutes religion nor what constitutes offense this sort of behavior encourages people to take more and more offense at smaller and smaller infractions. This situation is the perfect example. There are plenty of media items mocking the christian religion (piss christ) and certainly no absence of anti-jewish media that does not generate the same calls for restricting the freedom of speech. It is obvious that there wouldn’t be any calls to restrict free expression if the islamic world had denounced the cartoons the way the vatican denounces anti-catholic expression but otherwise shrugged and gone about their business. The motivation for restricting free speech in this case is nothing but the great offense muslims take at these cartoons.

Since religion is nothing but a set of beliefs that many people accept and really care about a prohibition on anti-religious speech is just a prohibition of criticizing things people really really care about. Deciding that speech should only be allowed when it doesn’t criticize something lots of people really care about strikes at the very core of the free speech protection. Free speech to say things that aren’t unpopular isn’t free speech at all. Even if people refrain from engaging in this sort of speech for purely voluntary grounds it just encourages religious groups to find more and more items offensive. If I was a christian who saw that an extreme reaction by the islamic community stopped offensive items from being published in the future why wouldn’t I whip my church up into a frenzy next time something like Piss Christ comes out. After all if they don’t have to see stuff they don’t like why should I?

UPDATE: Interesting how no muslims seem to be getting upset about the US supreme courts generally positive depiction of the prophet. Not to mention the long history of such depictions in christian and islamic contexts. In short the islamic complaint is nothing but a demand for special consideration not to be critisized the same way christianity and judaism are critisized.

Danish Cartoons:

Free Speech Unless Someone Really Really Cares
Here Are The Cartoons
Are Gays Obligated To Stay In The Closet
Clarification on Cartoon Position
Disturbing Deception Over Guantanamo and A Few Last Words On Cartoons
Why I Didn’t Want To Call It “Blamable”
Wicca and Islam