Is There A Right To Not Be Offended – And Should There Be?

Doug Bernard | Washington DC

As arguments over freedom of speech go, this one seemed comparatively tame.

Earlier this week in a New York City subway station, Egyptian-American blogger Mona Eltahawy saw an ad that she considered racist and offensive. “In any war between the civilized man and the savage, support the civilized man,” reads the bold-type ad, concluding “Support Israel, defeat jihad.” The ad, which has appeared in New York City and in Israel, is sponsored by a group closely associated with anti-Muslim activist Pamela Geller. Observers quickly figured out that Geller’s ad, who previously has said “that Islam is the most antisemitic, genocidal ideology in the world,” was referring to at least some Muslims as “savages.”

Eltahawy, who considers the ad hate propaganda, had had enough. She took a can of pink spray paint from her bag and began covering over Geller’s work. What she didn’t expect is that Geller supporter Pamela Hall was nearby doing an interview for local television. Hall thrust herself in between the ad and Eltahawy, and a argument ensued. “Mona, you think you have a right to do this?” asked Hall.”I do, actually,” Eltahawy shot back; “I think this is freedom of expression just as this (the ad) is freedom of expression.” A fight ensued; not long after two uniformed policemen put Eltahawy in handcuffs and arrested her. (She’s since been released.)

Initially, the Metropolitan Transport Authority barred the ads; however U.S. district judge Paul Engelmayer ruled that the ads were protected speech under the Constitution’s First Amendment.  “Our hands are tied,” said an MTA spokesperson. “Under our existing ad standards as modified by the injunction, the MTA is required to run the ad.”

Also under existing MTA rules, defacing any approved ad is an act of vandalism and graffiti, a misdemeanor, which is exactly what Eltahawy was charged with before being released. Which pretty much should have ended that story.

But in this small confrontation, we can see many aspects of the much larger and more troublesome conflicts triggered by those Internet clips of the movie titled “Innocence of Muslims” still churning. Such as: what constitutes free speech?  When can hateful speech be banned, and what is an appropriate reaction to speech one finds repellent? And who decides such things?

“My right not to be offended and insulted overrides a scoundrel’s right to malign the Prophet of Islam in order to satisfy his sick Islamophobia,” writes journalist Khalid Amayreh in an online post. That heartfelt sentiment, while it wouldn’t pass muster in a U.S. court, appears to be one many Muslims are embracing. In other words, a new right: The Right To Not Be Offended.

At this week’s U.N. General Assembly, Turkey’s Prime Minister Recep Tayyip Erdogan is leading efforts to have all Muslim nations back “international legal regulations against attacks on what people deem sacred,” (although who exactly would make that call is unclear.) Wasting no time at home, Turkish Minister Egeman Bagis told TRT TV “we have now begun working on making insults against (holy) values a crime against humanity upon directives by Prime Minister Erdogan.”

Speaking Saturday with The Washington Post, Yemeni President Abed Rabbog Mansour Hadi echoed this theme, saying “It should not be understood that freedom of expression is freedom of attacking other’s faith.”

Except that it is. At least, as guaranteed by the U.S. Constitution.

“Our whole system is premised on the notion that the people of America  get to decide what they say, not the government,” says American Civil Liberties Union staff attorney Chris Hansen. “For the most part, we believe the answer to speech with which we disagree is more speech.”

This may seem difficult to understand, but in many places around the world, governments exert real or de facto control over what can be said by whom, making speech not so much free as it is a commodity. Say what the government wants to buy and you’re in; otherwise, you’re out…maybe quite literally, as in the case of the Egyptian Copt blogger Alber Saber who’s been thrown in jail after allegedly posting a link to “Innocence of Muslims.” Remember, unlike Eltawahy who actually defaced someone else’s speech, Saber merely linked to it. And he faces a much stiffer penalty.

“We don’t think that depictions of the prophets are freedom of expression,” Islamic scholar Ismail Mohamed tells the New York Times. “We think it is an offense against our rights.”

The problem is that international law disagrees. “There is not any current right not to be offended,” notes Guy Berger, Director of the Division of Freedom of Expression and Media Development at UNESCO.

“The Organisation stands for respect for both freedom of expression and respect for religious beliefs and religious symbols. As such it urges the exercise of freedom of expression in a spirit of mutual respect and mutual understanding. This position does not exclude criticism of religions; instead it encourages the use of freedom of expression in forms of dialogue that respect rather than offend a criticised constituency.”

Which, reading through the international bureaucratese, is to say that ideally everyone will respect everyone else and play nicely with each other, but when they don’t there’s really very little that can be done.

Of course, part of the problem is that different nations have different free speech standards. In the US, there’s a reason the right to freedom of speech and assembly is listed first in the constitution – because for many Americans, freedom of speech is the right from which nearly all other civic rights follow. And that includes painful speech, such as groups protesting at the burial of a killed US soldier by holding placards saying “God Hates Fags” and “Pray For More Dead Soldiers,” or hateful speech like burning the flag at a protest. The history of the First Amendment is very often that of an offended majority still recognizing the right of a few to say outrageous things.

But even in the US, not all speech is protected. You can’t yell fire in a crowded theater (Schenck v. United States, 1919.) You can, actually, make menacing statements about the President, but not if they intended specific threat to the President’s life, as judged by an objective observer (18 U.S.C. § 879.) But particularly when it comes to opinion about a person, group, belief, politics or activity, pretty much anything goes.

“It’s really a mistake to think that this is about protecting unpopular speech because we agree with it, or because it’s important to be heard,” says the ACLU’s Chris Hansen. “It’s really about making sure that the government can’t decide what speech can and can’t be heard.”

But that’s exactly what some Muslim leaders want to see: an international ban on speech – particularly on the Internet – that Muslims would find if offensive to their prophet. Says Guy Berger:

“With the global character of the Internet as well as circumvention techniques that bypass regulatory limitations, it becomes very difficult for any state to implement a balance.  To the extent that efforts are made, however, they ought to protect freedom of expression by only providing for limitations in terms the international standards in terms of predictability, proportionality and legitimate purpose. Legitimate purpose can include public morals, although the UN Human Rights Committee has cautioned that this ought not to be on the basis of a single tradition and it should not discriminate between person.”

But sifting through that careful statement opens a Pandora’s box of legal complexities.  If, for example, Yemeni Muslims offended by the “Innocence of Muslims” clips win a right to have them banned, so don’t Jewish groups who take offense at children’s cartoons that air on Yemeni television that portray Jews as skulking, fang-toothed villains and the U.S. as blood-thirsty dupes of an Israeli cabal have a right to have them stricken?

If an exception is made for “Innocence of Muslims”, what of “The Book Of Mormon,” a light-hearted satire playing to packed houses on Broadway? What of Russian orthodox criticisms of the Baptist church, or the portrayals of Sikhs by both Muslims and Hindus? As someone of Swedish heritage, I’m a little offended when people refer to my fore-bearers as “Chunk-headed Lutherans.” Do I have a right to shut someone else up? Where does it stop?

“That’s exactly the problem, it doesn’t stop,” says the ACLU’s Chris Hansen. “Because if speech can be banned against one group, who’s to say it can’t be banned against another group, or a party, or an ideal, or even the government itself?”

“Here in the United States, countless publications provoke offense,” said President Obama at last week’s UN General Assembly:

“Like me, the majority of Americans are Christian, and yet we do not ban blasphemy against our most sacred beliefs. As president of our country, and commander-in-chief of our military, I accept that people are going to call me awful things every day, and I will always defend their right to do so”

The world is again learning that free speech can hurt. It can be ugly, and it can rouse the deepest felt emotions. In some places it’s limited, or outright banned. But in this interconnected Internet age, can free speech truly be stopped…and should it? And if speech isn’t free, what value is it?  Says the ACLU’s Hansen:

“The truth is everybody, every American, has speech that they would secretly like to suppress, but we have all reached the conclusion that we can’t indulge ourselves on that. There have been times when it’s frayed…the country often doesn’t live up to its ideals. But for the last 75 years, the 1st amendment has been among the most solid of American principles, and the most honored.”

In other words, it’s unlikely that the U.S. Constitution will anytime soon recognize a right to not be offended. Likewise, it’s almost a guarantee that somewhere, sometime, someone will put up something new on the Internet, hurting the feelings and millions and triggering more outrage. As in the past, governments will no doubt exercise their ability to selectively block those parts of the web they feel are spreading offensive material; that, or pressure the web company to voluntarily censor the material itself (as Google often does with material the Thai government feels violates lese majeste.

But as long as people are allowed to speak their minds, at least a few will take offense, and try and act out in whatever way they feel is appropriate, whether that’s shared by international standard or not.

For what it’s worth, Pam Geller’s group originally won the right to post 10 of the “savages” posters around New York City. As of this writing, all 10 have been torn, defaced or completely taken down.