//When free speech comes at a great cost

When free speech comes at a great cost

By Siew Kum Hong, First Published 8 Feb 2006
I consider myself a free speech advocate who firmly believes that more speech is generally better than less. So, I was surprised by my reaction to the ongoing controversy over the caricatures of the Prophet Mohammed: I found myself condemning the so-called advocates of free speech.

I remember reading about the publication of the cartoons in the Jyllands-Posten newspaper in Denmark last year and being surprised at the relative lack of outrage in the Muslim world.

That changed, when newspapers in Norway – and later France, Germany, Italy, Spain, Holland and New Zealand – republished them.

These newspapers have cited freedom of speech to justify their actions, while some governments have pointed to press freedom in not condemning the newspapers.

But these reasons ring false and hollow, and loudly so.

In the first place, it is universally accepted, including in the West, that freedom of speech is not absolute. It is invariably qualified by exceptions such as defamation and hate speech. In Denmark itself, hatemongers have been prosecuted.

Meanwhile, many European countries, including France and Germany, make it an offence to deny the reality of the Jewish Holocaust.

There is always a balancing exercise between the overall benefit and the overall harm of free speech to society. As the famed United States jurist Oliver Wendell Holmes Jr wrote: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic."

And that is really what the newspapers did in this case. The response by the Muslim world to the caricatures, including the violence against Western embassies, was predictable.

Indeed, the Jyllands-Posten editor has since stated that he would not have published the caricatures if he had known the consequences. He has clearly realised, too late, that the harm of publishing the caricatures outweighs the benefit.

So I found the European newspapers disingenuous when they talked about their right to free speech as if it was absolute and unfettered, as if the right would be meaningless if they chose not to publish the caricatures, as if they were justified in publishing the caricatures, consequences be damned.

After all, the right does not exist in a vacuum. And in the mass media, editors must consider whether the benefits of publication outweigh the harm caused.

The issue is therefore not quite as clear-cut as the newspapers would have us believe. It is not really about freedom of speech against freedom of religion. Framing it in that perspective assumes that the newspapers were properly and justifiably exercising their right of free speech, when that may not be so.

The Jyllands-Posten’s original objective in publishing the caricatures was to test whether Muslim fundamentalists had affected the freedom of expression in Denmark.

But some of the caricatures, in particular those linking the Prophet Mohammed with terrorism, went far beyond what was necessary for doing that.

Even if freedom of speech allowed the newspapers to depict the prophet in some form, they must surely have exceeded their rights by publishing such offensive images.

Some of the governments involved have also acted less than responsibly in their reluctance to condemn the newspapers. They have argued that the newspapers are private entities outside governmental control with their right to free speech and so the governments could not apologise for what they had done.

But these governments are entitled to take their own view as to the propriety of the newspapers’ actions, even if it is strictly legal, and to articulate that view as strongly as is appropriate.

Furthermore, these governments have deemed it fit to criminalise the denial of the Holocaust. In what way is the denial of the Holocaust inherently more repugnant than the depiction of the central figure in the second-biggest religion in the world as a terrorist?

It is perhaps ironic that the newspapers in the US, that self-styled bastion of free speech and the free press, have refrained from publishing the caricatures.

Maybe nobody wanted to be responsible for causing the death of American soldiers in the Middle East. But that is precisely the point: Rights always come with responsibilities.

In the end, these newspapers may well have done much more damage than good to the cause of freedom of speech and press freedom.

Those who advocate the importance of responsibility over freedom will now have more ammunition in demonstrating the dangers of a reckless free press. And, sadly, they would be right.

The writer is a lawyer commenting in his personal capacity.