The Charlie Hebdo terrorist attack presents a new challenge to defining free speech in the United States in such a way that protects the right of expression while safeguarding the security of citizens.
The Charlie Hebdo attack underscored the propensity of religious extremists to carry out acts of violence when they believe their religion has been mocked or desecrated. The Constitution could not anticipate the contemporary threats to society posed by international terrorism. However, the strength of the Constitution is that it allows for the prospect of free speech, while protecting US citizens from violence perpetrated by people who feel that speech has gone too far.
The First Amendment states, in part, “Congress shall make no law…abridging freedom of speech.” Does this estop us from creating a legally tenable standard to curtail free speech in circumstances of religious defamation?
The Supreme Court has included within freedom of speech the right to use certain offensive words to convey political messages and to engage in symbolic speech. Freedom of speech does not include the right to incite actions that would harm others or to convey “fighting words.”
In Schenck v. United States, Justice Holmes drew the line of free speech at words that create a “clear and present danger…bring[ing] about the substantive evils that Congress has a right to prevent.” In a similar vein, words “which by their very utterance inflict injury or tend to incite an immediate breach of peace” are not protected by free speech. Chaplinksy v. New Hampshire stands for the proposition that the right to free speech is not absolute, and we can, or must, prevent “the lewd and obscene, the profane, the libelous, and the insulting;” those words that are of such “slight social value” that “any benefit…derived from them is clearly outweighed by social interest in order and morality.”
The First Amendment analysis, however, does not stop here. Almost a decade after Chaplinsky, the Court reasoned that, even if speech is provocative and challenging, it may not be suppressed simply because it may invite dispute. Justice Harlan echoed this rationale in Cohen v California: “…it is nevertheless often true that one man’s vulgarity is another’s lyrics.”
Given these two lines of cases, what exactly constitutes “fighting words?” What speech presents a “clear and present danger” of harm? Theoretically, both of these standards can be taken a long way in abridging free speech, especially in the context of lone wolf attacks inspired by ISIS.
On the one hand, offensive images of the Prophet Muhammad constitute “libelous” and “insulting” speech, of the type limited in Chaplinsky. On the other hand, the right to depict the Prophet in this way should be protected under the First Amendment as relevant socio-political commentary. Considering both positions, the question becomes whether the right to comment on the current state of affairs in an offensive way is part of our exposition of ideas. If it is, the societal benefit afforded by the expression should outweigh the potential for harm, in a First Amendment analysis.
When defining the limits of free speech consistent with US law, we must take care not to compromise our rights because of the prospect of violence. We must be sensitive to views that cross the line into offensive, and there should be some recognition that insulting any religion is capable of provoking violence. However, if we redefine free speech out of fear of reprisal, we will lose the freedom we have fought so hard to preserve. The key is to find a dispassionate, consistent definition of what constitutes words creating “clear and present danger.” Such a legal basis for abridging free speech must be sufficiently rigorous to apply to any particular religion or belief system. Otherwise, we risk violating other constitutional core principles, such as separation of church and state or freedom of religion.
The challenge with the Charlie Hebdo case is, once we determine a certain insult is inappropriate, how do we apply that understanding to other situations that may arise? Do we create a strict interpretation, or do we engage in a case-by-case analysis? The danger of constraining free speech based on “clear and present danger” is that a corrupt government could use that rationale to limit our speech for far more trivial matters than offending peoples’ faith. A low bar could have disastrous effects on free political speech in the US; so far, the US courts have been reluctant to constrain free speech unless the correlation to harm is blatantly obvious.
Emotions cannot dictate whatever standard we choose to enforce in the aftermath of the Charlie Hebdo attack. Rather than entertain a knee-jerk reaction to terrorist threats, we have to ask ourselves whether it is wise to abridge free speech. If we decide it is, we must find the standard within our Constitution. In this process, we must not yield to fear, or cave to the pressure of the moment.