Debate: The Muhammad drawings: Is this a case regarding freedom of speech?
Politiken 13th February 2006
By Henrik Zahle, Professor, Dr. jur., Copenhagen University
The government has through four months kept itself - and still keeps itself - back from directly criticizing the publishing of the drawings, with referral to that “we have freedom of speech in Denmark”. Jyllands-Posten has also, the magazine claims, wanted to defend the freedom of speech by publishing the drawings. But what do we in fact understand about the freedom of speech? And is this truly strictly primarily a case regarding freedom of speech? Freedom of speech is not only a legally regulated freedom, but there can anyhow be reason to examine the legal understanding of the concept. Freedom of speech in legal terms means a freedom to express oneself, without the expression resulting in negative sanctions. That one can express oneself, is therefor, that one’s expression can not be punished by the authorities, result in liability or similar. And the risk of private sanctions can in a broader sense be part of determining the freedom of speech.
Freedom of speech constitutes the framework for expressions in many special configurations. The different forms of expressions are covered by different more outlined freedoms - media freedom, political freedom of speech, freedom of research, artistic freedom etc. If we look at the expressions, that can occur within each of these fields, it is clear, that the legal approach is entirely insufficient in forming basis for a societal relevant assessment of expressions. We stand for instance at an art exhibition and look at a painting; one says, that it is a bad piece of work - and the artist answers “We have freedom of speech!”. But, is this not an answer, that derails the debate regarding the artwork itself? Certainly nobody has contested the artists’ ‘freedom’ to paint, as he or she would like to. By referring to freedom of speech, the artist derails the debate regarding the content of the artwork and talks instead about something that nobody has contested, namely the artistic freedom. Or a politician argues for a given view, another politician attacks it, and the first answers “I surely have freedom of speech!”. This answer also constitutes an evasion, where the one, that refers to the freedom of speech, pulls out of the political debate.
The drawings are not only a violation of the Islamic image ban, but some of them are also in their message violating untrue. A picture of a bearded man with a bomb can hardly be read as anything else than an identification of Muhammad with terror, and thereby the illustrator ascribes terror activity to anyone, who associates themselves with Muhammad. The cultural editor of Jyllands-Posten claims, that the drawings should be understood as such, as it is only some, and not all Muslims, that are linked to terrorism, but there is no substance for that point of view in the drawings.
To defend the publishing of this drawing by referring to freedom of speech, is as evading as the prior examples regarding art and politics. That the editorial office works within the framework of the freedom of speech, does not constitute any argument for publishing particularly these drawings. The artist must as the politician and the newspaper editor argue for the value of particularly this expression in the concrete situation.
Some would maybe wish, that there in a country with freedom of speech were not any sanctions against expressions other than those, that follow the law. The freedom of speech should thus exclude any sanction, when just the expression is legal. Hereto I must answer, that this point of view contains an unreasonable and exaggerated focus on the legality and is basically socially irresponsible. If I and everyone else only were obliged to take that consideration to other people, that was expressed and demanded by the law, the society would dissolve. All human cooperation - association with colleges, neighbors, shoppers - are based on a well developed and fine meshed consideration for others, not only for family and friends, but also for strangers, that can have a need for care. This vital culture of consideration also applies to expressions: We can not just keep ourselves within the limits of the law, but must in many ways show care in our act of expression, and care is obviously particularly important, when the expression comes out of a mass media or concerns a sensitive political subject. It is not politeness, that is required, but responsibility, that implies, that one makes oneself clear, who the expression could reach, makes oneself clear, what meaning it could have for these, and what impact it can have for one to express oneself. The content of the expression can make it necessary and justifiable to hurt, but then one must admit and take responsibility for these offenses.
Freedom of speech is not a line in the sand by the law, where it is just a matter of being on the right side. The freedom of speech gives each of us, that are so lucky to live in a society with freedom of speech, an opportunity to unfold, and that unfolding, that we so decide to, we must answer for, i.e. we must argue for it within the space of expression, that it lies in. The one who, express themselves, can bee met by critique and in worst case condemnation. The one who, condemn, does not deny freedom of speech, but criticizes the concrete expression, and the one who, is criticized, can not defend themselves by just referring to freedom of speech, but must give answers within the same discourse.
The government is not in a position, that makes it meaningful to apologize the legal expression of a newspaper. But a drawing for debate in a newspaper is part of the public debate, and nothing hinders the government from commenting a contribution to debate, on the contrary it is its’ task to participate in the democratic debate with the citizens in the society, that the government is assumed to govern. Such a comment could be dissociation or condemnation, as we also have seen from other governments. A political condemnation does not constitute an inroad into the freedom of speech. The condemnation is in fact political, when we as here presume, that the expression is legal. It is in this regard not relevant to be told, that the prime minister personally would not have stood for the drawings that they published, because on the contrary a reference to, what “I personally would not have done” is often a formula for, how one avoids taking a stance about that, which another one has done.
The governments’ stubborn stance of ‘no-view’ is easily interpreted as an approval of the publishing and content of the expression. It is this point of view, that surely is ascribed the ‘silent’ government.
The essence in the case seen from the point of view of the cultural editor of Jyllands-Posten seems to be, that there have been examples of ‘self censorship’, that have halted drawings of Muhammad. I agree with, that it is an important journalistic task to overcome forces, that hold back information and other expressions. This is not least the case, if there are threats of violence and other illegalities, that hold the expression back. But at the same time it must be considered, whether there - besides the illegal barriers - are other considerations, that argue against the publishing. It is good to overcome illegal and unacceptable barriers for the publishing of expressions - here we agree - but that by itself, that an expression has encountered an illegal barrier, does not make it right to publish without further consideration. In the present situation Jyllands-Posten has not only caused violent reactions and economic sanctions in the Middle East, but also violated many peaceful and silent Muslims, and it is the risk of the last, that should have kept the editor from publishing the drawings, while it now have become the violent reactions and the economic sanctions, that bring the government and chief editor into the picture.
With a paraphrase of a text by Villy Sørensen: that we have the right to express ourselves, does not mean, that we are right. It is neither against democracy nor human rights to maintain, that Jyllands-Posten had (legal) right to publish these drawings, but (politically and morally) should have refrained from doing it. It is the violation of initially Danish Muslims, and subsequently Muslims of all kinds, that is and has been the problem of the case from the start. To make the case into a question regarding freedom of speed is to avoid this problem.
