The Volokh Conspiracy : Adherents of Islam, second largest religion in the world, are a “powerless, disenfranchised minority”?

By Eugene Volokh April 11     Washington Post

A sign among flowers near a cultural center where a person was shot and killed in an attack in Copenhagen, Denmark, on Feb. 17. A 22-year-old Danish gunman opened fire at a cultural center and a synagogue — targets that resembled the Paris attackers’ rampage at the Charlie Hebdo newspaper and a Jewish grocery store — before he was killed in a gunbattle with a SWAT team. His victims included a Danish documentary filmmaker and a Jewish security guard; five police officers were wounded. (Michael Probst/AP)
Garry Trudeau, creator of Doonsbury, gave a speech Friday that, among other things, criticized Charlie Hebdo; here are some relevant excerpts:

Ironically, Charlie Hebdo, which always maintained it was attacking Islamic fanatics, not the general population, has succeeded in provoking many Muslims throughout France to make common cause with its most violent outliers. This is a bitter harvest.

Traditionally, satire has comforted the afflicted while afflicting the comfortable. Satire punches up, against authority of all kinds, the little guy against the powerful. Great French satirists like Molière and Daumier always punched up, holding up the self-satisfied and hypocritical to ridicule. Ridiculing the non-privileged is almost never funny — it’s just mean.

By punching downward, by attacking a powerless, disenfranchised minority with crude, vulgar drawings closer to graffiti than cartoons, Charlie wandered into the realm of hate speech, which in France is only illegal if it directly incites violence. Well, voila — the 7 million copies that were published following the killings did exactly that, triggering violent protests across the Muslim world, including one in Niger, in which ten people died.

There are many things wrong here, I think, but let me start by focusing on one: Whatever the status of Muslims might be in France, Charlie Hebdo’s famous cartoons weren’t commenting on French Muslims as such — they were commenting on Islam generally, and particularly at the more traditionalist strands of Islam.

Islam has an estimated 1.6 billion adherents, and is the most powerful religion in many important countries. Being powerful, it has been doing plenty of its own “punching downward” lately, and not just by means of satire. It has plenty of “the self-satisfied and hypocritical” within it. Much within Islam — like much within many religions — merits some “afflicting” through criticism and even ridicule.

Yet somehow this, in Trudeau’s eyes, is illegitimate. Look closely at the rhetorical trick in his argument. First, take a general rule of good manners (don’t make fun of the genuinely afflicted, especially when they are afflicted through no fault of their own). Then broaden it to any supposedly “powerless, disenfranchised minority,” including ones that are defined by a belief system — which, like other belief systems, may well deserve criticism (regardless of how powerful its adherents might be, and especially because even “powerless” belief systems often exercise a lot of potentially harmful power over some, such as their women and children). And then deploy this to deligitimize criticism of one of the most important and powerful belief systems on the planet, because in Hebdo’s home country that belief system attracts a mere 7.5% or so of the population.

What’s more, according to Trudeau himself, this part of the population is far from innocuous. After all, he says that “many Muslims throughout France” are now “mak[ing] common cause with [presumably Islam’s] most violent outliers.” Sounds like those outliers, in Trudeau’s view, really aren’t such outliers within French Islam after all, if a few cartoons can turn “many Muslims” into the supposed outliers’ allies. Likewise, Trudeau characterizes the cartoons as “directly incit[ing] violence,” in the form of people getting murderously upset at blasphemy. Oddly, adherents of many other religions don’t seem to react to blasphemy the same way. Might it be that there is some “authority” here, even if in part the authority of the mob, that should indeed be subjected to some “afflicting” and (metaphorical) “punch[ing]”?

And then of course there is the casual “hate speech” label, as usual used without much concrete explanation of what exactly it covers. Maybe I’m reading too much into that sentence and the following one, but it sounds like Trudeau would actually have applauded prosecution of the cartoonists; after all, he says the cartoons “wandered into the realm of hate speech,” such speech is illegal in France “if it directly incites violence,” and the speech “did exactly that.”
Might it have been helpful to explain, if only briefly, just what criticisms of Islam (or of other religions) should be seen as criminal — or even immoral — “hate speech”? Any criticisms that someone can label “punching down”? Any that are seen as blasphemous by people who are willing to respond with murder? Any that are “crude” or “vulgar” in their words, or perhaps in their artistic style, which is too much like “graffiti” rather than “cartoons”?

Earlier in the speech, indeed, Trudeau condemned not just the Charlie Hebdo cartoons but also the Danish Mohammed cartoons, which, as I’ve tried to explain in detail, are largely quite tame under any secular standard. Trudeau nonetheless condemns them because,

As you know, the Muhammad cartoon controversy began eight years ago in Denmark, as a protest against “self-censorship,” one editor’s call to arms against what she felt was a suffocating political correctness. The idea behind the original drawings was not to entertain or to enlighten or to challenge authority — her charge to the cartoonists was specifically to provoke, and in that they were exceedingly successful. Not only was one cartoonist gunned down, but riots erupted around the world, resulting in the deaths of scores. No one could say toward what positive social end, yet free speech absolutists were unchastened. Using judgment and common sense in expressing oneself were denounced as antithetical to freedom of speech.

Perhaps then he is condemning any cartoons that are intended “to provoke,” and that don’t use “judgment and common sense” (presumably because the authors and editors dare to criticize a group that contains some would-be killers). It seems to be no defense in Trudeau’s eyes that the cartoons “challenge authority” by challenging certain important strands within an influential world religion, by challenging a climate of fear, by challenging what some see as “a suffocating political correctness,” or indeed by challenging the cultural mores of the Danish equivalents of Garry Trudeau. Either he is likewise viewing the Danish cartoons as a form of “hate speech,” which just shows how broad his notion of “hate speech” is. Or, if he is not viewing them as “hate speech,” then it follows that Hebdo’s supposedly “wander[ing] into the realm of hate speech” is thus largely beside the point, since cartoons that mock or criticize Islam (especially radical Islam) shouldn’t be published even when they aren’t “hate speech.”

Many of the powerful throughout the world are very happy to punch down against cartoonists, and not just against cartoonists who draw Mohammed or who criticize Islam (see, e.g., the recent convictions of cartoonists in Turkey). I would have thought that one of the most prominent and (at least in the distant past) iconoclastic cartoonists in the world, receiving an award for his lifetime achievement as a cartoonist, would have explained in a bit more detail just which sorts of ideologies should now be immunized from ridicule, and which sort of cartoons should indeed be criminalized or at least condemned by the cartooning elites.
Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.


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