On this last episode, we look back on 23 years of joyous, difficult and always informative conversation.
An Internet video insulting the Prophet Muhammad sparked riots, but also an international debate about the limits of freedom of speech. Some in more conservative countries see Western laws as dangerously broad, while others see hypocrisy, given that cross burning can be considered “hate speech” in the United States and denying the Holocaust is a crime in Germany. As the U.N. debates a call for anti-blasphemy laws, we explore freedom of speech around the world.
- John Esposito Founding Director of the Center for Muslim-Christian Understanding: History and International Affairs at Georgetown University; Author, "The Future of Islam" and "Islamophobia and the Challenge of Pluralism.”
- Kevin Bankston Senior Counsel and Director of the Free Expression Project, Center for Democracy & Technology
- David Law Professor of Law and Professor of Political Science, Washington University in St. Louis; Visiting Professor, Georgetown Law
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. In the wake of a crude Internet video about the Prophet Muhammad that sparked protests across the Muslim world, a group of Islamic countries called on the United Nations last week to adopt anti-blasphemy laws, sparking a international debate about where the boundaries of free speech should be.
MR. KOJO NNAMDISome in more conservative societies see Western laws as dangerously broad. Others see inconsistencies, like the fact that cross-burning can be considered hate speech in the U.S. and denying the Holocaust is a crime in Germany. Further complicating matters is the fact that the messengers for much of the world's information are big technology companies like Google and Facebook who find themselves navigating these debates as they decide what to allow and what to block.
MR. KOJO NNAMDIJoining us by phone to start this conversation is David Law. He is a professor of law and political science at Washington University in St. Louis. He's a visiting professor at Georgetown Law School this year. David Law, thank you for joining us.
PROF. DAVID LAWThank you for having me, Kojo.
NNAMDIAnd if you'd like to join the conversation, you, too, can join it by calling 800-433-8850. Do you think the U.N. should consider anti-blasphemy laws? 800-433-8850. David, the Organization for Islamic Cooperation along with other leaders like the prime minister of Turkey pushed the U.N. General Assembly last week to pass international anti-blasphemy laws. What kind of differences, if you will, does this expose?
LAWWell, it exposes rather extreme differences, I think, even within the U.S., I think, even within the so-called Western countries. If you compare American attitudes toward blasphemy with even attitudes within some parts of Western Europe, there are some fairly stark differences. So I don't assume that it will be easy to muster a major in favor of an international anti-blasphemy law, and one can also question how that would be enforce.
LAWBut I think that the U.S. is -- takes a relatively -- the U.S. is usual in that. It's very protective of so-called blasphemy. It's relatively protective and tolerant of hate speech compared even to other Western countries. It tolerates libel. It tolerates hate speech. It tolerates corporate speech. It tolerates -- it takes a very narrow view of campaign restrictions that restricts speech. It's relatively tolerant of obscenity.
LAWSo, for example, you know, we have this First Amendment right which is written in very absolute language. Congress shall make no law respecting establishment religion or breaching the freedom of speech. If you compare that to, say, Ireland, which is, you know, very much a Western country, right, that's supposed to be one of our European allies, you know, their constitution actually says the publication or utterance of blasphemous, seditious or indecent matter is an offense which shall be punishable by law, right? So we...
NNAMDIAnd they passed anti-blasphemy laws in Ireland in 2010.
LAWYes. Well, the Irish -- I mean, they -- so not only have they, for example -- and it's not just blasphemy, but it -- we're talking about things that offend the religious sensibilities and the -- what the so-called public morality of the country, right? This is a country where even the constitution begins by saying, in the name of the Most Holy Trinity from whom all authority to whom as the final end, all actions both of men and states must be referred, we, the people of Ireland, humbly acknowledge all our obligations to our Divine Lord Jesus Christ, right?
LAWAnd so that explicitly religious basis, it sounds more like the Saudi Arabian constitution than the American Constitution. And so you're talking about a country where not only was abortion banned, but the advertising of abortion services outside Ireland had also been banned. And that ended up having to be litigated in the European Court of Justice which ruled in favor of the abortion advertisers on freedom of -- on free trade grounds.
LAW...very restrictive, and the -- yeah. No. I'm sorry. Go -- the European Court of Human Rights as well, OK, so all of the nations in Europe are members of the so-called Council of Europe. They signed this thing called the European Convention on Human Rights. The European Convention on Human Rights says everyone has the right to freedom of expression -- sounds great, right?
LAWAnd this is supposedly enforced by the European Court of Human Rights, but time and time again, the European Court of Human Rights has allowed countries to enforce blasphemy laws or the equivalent whether in the United Kingdom where there was a film about a 16th century nun where she lay in a state of "erotic arousal" next to the crucified body of Christ, and that was banned.
LAWThe British government refused to issue a certificate for that film, and that was upheld by the European Court of Human Rights. You had a case from Switzerland where an artist at a gallery painted scenes that included homosexuality and bestiality. The paintings were convicted. He was fined. That was upheld. You had an art house from in Austria that was confiscated because it depicted God as a senile old man and the Virgin Mary as a lascivious woman and Jesus as mentally deranged, right?
LAWAll of these things were upheld by the European Court of Human Rights. So the United States actually, even among Western countries, is unusually tolerant of blasphemy, and I think that has to do with the fact that the U.S. government is actually -- you know, there's always this tradeoff between the value of free speech, the supposedly universal value of free speech and the idea of religious morality or public morality and...
NNAMDIYes. But even...
NNAMDIEven we in the U.S. draw the line in areas that we have decided are just too sensitive. We have -- anti-Holocaust and anti-gay speech are generally legislated against and tend to be upheld even in this country.
LAWWell, actually, not so much compared to other countries. There have been a few cases. For example, there was a case in St. Paul, Minn., where there was a law abetting cross-burning if it was directed at people on the basis of their religion, their race. It was intended to arouse fear. The Supreme Court actually struck down that law. It said that law discriminates on the basis of content, right?
LAWYou could imagine someone who burns crosses just for fun versus someone who burns crosses in order to inflict terror on people. That law was struck down. We also had the recent -- the West Borough Baptist Church protesters, right?
LAWWho -- those were folks who -- the West Borough Baptist Church, they were protesting military funerals. There was this Marine lance corporal who was Catholic, and the protesters at his funeral, right, referred to the Roman Catholic monstrosity, criticized his parents for sending a son to fight for the United States of Sodom, criticized them for his evil, wicked and sinful manner of life.
LAWAnd the parents tried to sue the protesters, and they lost because the protesters had a freedom of expression, right, to say the things that they did at their son's funeral. So, you know, another thing to remember about the U.S. that's unusual is we have the separation of church and state that actually forbids our government from stepping in on the side of religion. And we're relatively unusual in that respect.
LAWThere's only about a third of the countries in the world -- I mean, almost every country in the world protects freedom of expression constitutionally, but we're relatively rare in separating church and state. There are only about a third of countries say that the government cannot intervene on the side of religion, whereas about a fifth of countries actually have an official state religion in their constitutions. And that includes much of the (unintelligible)...
NNAMDIWe're talking with David Law. He's a professor of law and political science at Washington University in St. Louis. He's a visiting professor at Georgetown Law School this year. He joins us by phone. David, post-Arab Spring countries are wrestling with these issues as they shape their own governing principles and write their constitutions. Where are they looking for models?
LAWWell, so if you -- people who write constitutions, right? There's the sense that that language of human rights is supposed to be universal, and things like freedom of expression, freedom of religion are sold as universal values. But the truth is they're not entirely universal, and a lot of countries look inward and backward. And I don't say necessarily in a negative way, but they look inward and backward in the sense of falling back on tradition and history morality and religion as the basis for their constitutional orders.
LAWAnd no matter how much the U.N. wants to adopt, you know, covenants and universal declarations, ultimately, what's in those documents isn't really truly universal. Sometimes, people voice objections that these are just sort of neocolonial or neoimperialist projects dressed up by the West in order to foist our values on them. And there's always been this alternative of basing your system of government on tradition, history and morality and religion, right?
LAWHaving not just a monarchy but having a religiously base monarchy. I mean, you look at Saudi Arabia, for example, their constitution explicitly says government derives power from the Quran and the Prophet's tradition, right? So I think that countries do, in fact, have alternative models to the so-called universalistic, universal declaration of human rights, whatever the United Nations says, it's just -- those alternatives are not necessarily being articulated by international bodies like the United Nations. Often, countries will have to look inward and backward.
NNAMDIYou know that perhaps we're seeing a clash of cultures, so to speak, but how do we resolve a clash of cultures through the use of constitutional law?
LAWWell, how do we resolve any conflict through constitutional law, right? Constitutional law is a way of ensuring that conflicts don't erupt into violence, but the conflicts never go away. You know, look at abortion in this country, for example, the Supreme Court has "decided abortion," but that hasn't made the conflict go away, right? I think what we're seeing is that the conflict over these constitutional values is now occurring at a global scale.
LAWYou know, it used to be you as a country would sort through how you felt about the tradeoff between religion and free speech, and that would be that, and you'd go about your business. Now, the problem is, even if we sort out our balance between religion and free speech, other countries strike a different balance and because speech itself has become global and the reactions to speech have also become global, these disagreements that the battleground over constitutional law is now global instead of just national, right?
LAWThe globalization of constitutional law is happening, but it doesn't just mean that we're all reaching the same solutions, we're all agreeing on the same rules. It means in part that constitutional law has become a site of contestation at the global level. For example, in 2000 -- this is not the first time we've seen these sorts of eruptions in response to Western free speech that seems sacrilegious by the Muslim world.
LAWBack in 2006, right, there were the Danish caricatures of the Prophet Muhammad, and so, you know, the way this played out is you had riots in Karachi and Khartoum over religious caricatures published in Copenhagen. And the response in France was to express dismay over the fact that England and the United States were failing to take a sufficiently principled stand in defense of freedom of speech.
LAWThere was the sense in France and in continental Europe that, unless the Western countries committed to freedom of expression, they would have to stand together in defense of their shared values, or they would fall like dominos. The French thinking then was, if we let ourselves get bullied into silence over these caricatures and we don't draw the line now, it will become even harder to defend freedom of expression in the future.
LAWThat was six years ago. Now, the problem instead of President Bush chastising a Danish newspaper for not being respectful enough, we're now having to apologize to Americans for what some guy in California with a YouTube account did. And I have to wonder whether the French are not thinking to themselves, I told you so.
NNAMDIWell, you mentioned earlier, David, there are laws against anti-Semitism in Europe and that Ireland passed anti-blasphemy laws and about 30 other nations have anti-blasphemy laws, but to circle back to where this conversation began, apparently, few seemed to think that this will stand a chance of becoming international law.
LAWYes. I think that it's tough -- I mean, even -- it's never been easy for the United Nations to adopt human rights instruments, right? One example, if you look at the international covenants -- there are two international covenants, the International Covenant on Civil Political Rights, the International Covenant on Economic and Social Rights. And those end up splitting into documents because you had a rift between a Cold War-style rift.
LAWThis is not going to be any easier, right? You have Western countries that are committed to secularism, and you have countries that are deeply offended by these sorts of speech acts. And if -- I just -- I don't -- I'm not an expert on how the U.N. works, but given how difficult it's been in the U.N. for the past to promulgate supposedly universal documents, I don't see why it's any easier for them to adopt something which is so controversial in countries such as France and England, the United States.
NNAMDIDavid Law, thank you so much for joining us.
LAWThank you so much for having me.
NNAMDIDavid Law is a professor of law and political science at Washington University in St. Louis. He's a visiting professor at Georgetown Law School this year. We're going to talk -- we're going to take a short break. When we come back, we'll continue our conversation about free speech around the world. But if you have questions or comments, you can call us at 800-433-8850.
NNAMDIDo you think the U.N. should consider anti-blasphemy laws? Do you think most countries have blind spots when it comes to what are acceptable limits on free speech? 800-433-8850. You can send email to firstname.lastname@example.org, or send us a tweet, @kojoshow. I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation about free speech around the world. You can call us at 800-433-8850. Do you think American free speech protections go too far? You can also go to our website, kojoshow.org, and join the conversation there. But the number once again is 800-433-8850. Joining us in studio is Kevin Bankston, senior counsel and director of the Free Expression Project with the Center for Democracy & Technology. Kevin Bankston, thank you for joining us.
MR. KEVIN BANKSTONThank you.
NNAMDIAlso with us is John Esposito. He is a Georgetown University professor of religion and international affairs. He's also author of the books "The Future of Islam" and "Islamophobia and the Challenge of Pluralism." John Esposito, thank you for joining us.
PROF. JOHN ESPOSITOThank you.
NNAMDIJohn, we saw a protest and violence across the Muslim world over the past several weeks. But you point out what we did not see.
ESPOSITOYeah. I think that one needs to keep in mind that, A, the protests are important, but we need to distinguish between those that were expressing outrage -- but that was it versus the violence -- but also that you're still talking about a relatively small percentage of the population.
ESPOSITOAnd what we forget is that in these countries, you know, significant numbers demonstrated in order to get out, get under -- out from under dictators and bring about emerging democracies, demonstrated that they, you know, wanted a rule of law. And they demonstrated with their feet, and they demonstrated non-violently. So you had non-violent revolutions in a number of the countries.
NNAMDIIndeed, some of my friends who are Muslims have been posting on their Facebook pages and in other place that these protests are relatively small, that there have been protests over cricket that have been larger than some of the protests that we have been seeing here. But a theme across many of the recent protests is the perception that Western codes of free speech are biased against Islam, as when minarets were banned in Switzerland and headscarves in French schools. Can you talk a little bit about how those kinds of laws play in conservative Muslim countries?
ESPOSITOWell, I think that, you know, what you see is that, for example, in the Gallup World Poll, when majorities of Muslims were asked in some 35 Muslim countries, what do you admire about the West? They admired our technology, our rule of law, et cetera. But when it came to, you know, what are the significant problems that you have? It was denigration of Islam and Muslims and a belief that Arab and Muslim life is seen as cheaper than that of others.
ESPOSITOAnd that denigration ties into a lot of the disruptions that we've seen. But it was also a double standard on the promotion of human rights, you know, support for dictators. And if you noticed with these demonstrations, on the one hand, we have to say, for majorities of Muslims, they are outraged at this kind of film. But the fact is these demonstrations were often then used by others within the country who had political agendas.
NNAMDIThere were some underlying political motivations?
ESPOSITOExactly. In Egypt, certainly, in Libya and in Tunisia. Domestically, you have folks who don't like the new governments that have come in, one, to destabilize, undermine them at home, but also abroad. The, you know, the extent to which you have these demonstrations, obviously, the idea is to send the message and make the U.S. and the E.U. become very nervous about the emergence of new countries, particularly new countries where Islam or religion is playing a greater role, structurally and institutionally within society.
NNAMDIKevin Bankston, big tech companies are dealing with a lot of these same issues around free speech. At times, they find themselves at the forefront of it. After all, it was a video on YouTube that sparked the protest and the violence. How do tech companies navigate this?
BANKSTONVery carefully. U.S. companies that provide international platforms for speech have to balance a number of difficult factors. They need to consider law and culture in a variety of ways. First, they want to consider their home country's law, in this case, the U.S., where our founders made a decision that the answer to speech you disagree with is more speech and where the ability to criticize a religious belief or practice is a key part of your own religious liberty.
BANKSTONAnd speaking generally, U.S. companies that are platforms for speech want to help promote free expression consistent with our Constitution. But then there is local law of the country that you're serving which needs to be considered and followed, especially if there are personnel there from the company who could be subject to arrest, such as what happened with the Google executive in Brazil just last week.
NNAMDII was about to ask about that. Google recently found this out when a judge in Brazil offered -- ordered the arrest of a Google executive after Google refused to remove YouTube videos about a local political candidate. Google said it's not responsible for content posted on its site.
BANKSTONThat was a very general statement. It should be made clear that Google challenged the takedown order in court and then appealed that order. And while they were waiting for an appeal that was ultimately denied, an arrest warrant was issued for the executive, and that is of great concern. Whenever a provider of a platform for speech can be thrown in jail based on the content that someone else posted, I think that the ability of us all to speak online is in danger, as is the right of people to innovate in the creation of platforms.
BANKSTONBut to go back to the law and culture considerations that need to be factored in, there's also the issue of universal human rights such as the right to free expression which sometimes can conflict with the local law. There's the local culture that you want to serve and not alienate. And then, finally, there's the culture that you're attempting to build on your site through terms of service that define what is acceptable and what is not.
BANKSTONAnd in trying to manage all of these different factors, you can find yourself in a very difficult position trying to weigh what content should stay up and what should go down. And I think there's a really good example coming out of an incident that occurred in Turkey. In Turkey, it's a crime to insult the founder of modern Turkey, Ataturk, or to insult Turkishness. YouTube took down several videos at the request of the Turkish government because they violated Turkish law. They blocked them in Turkey.
BANKSTONHowever, the Turkish Government went even further and demanded that they take down the videos on YouTube entirely so that it would not be accessible to anyone on the planet. Google had a decision to make. Do we let Turkey exercise, basically, a heckler's veto over the entire planet on -- in regard to these four videos, or do we risk them blocking our access to Turkey which hurts us as a business and also hurts Turkish citizens' ability to access everything else on YouTube?
BANKSTONYouTube chose not take the videos down. And YouTube was blocked in Turkey for two years. Those are the kinds of tough decisions that these companies have to make, and they have to make them increasingly.
NNAMDISo why is YouTube no longer blocked in Turkey?
BANKSTONI think, in part, because there was popular demand for it that the Turkish government was willing to listen to.
NNAMDITurkish government eventually caved.
BANKSTONEventually, but after two years of blockage.
ESPOSITOYeah. I think that what gets underscored here, if you look at both of the two previous speakers that we had, is that we are seeing again in a rather bolder fashion in this process of globalization, and actually globalization in terms of the emergence of new democracies, a tension between the notion of universal human rights on the one hand and those who believe that they want democracy. But in terms of law and culture, they also want their values incorporated in their society.
ESPOSITOAnd we shouldn't be stunned by this because, for example, if you look at the Christian right, both Protestant and Catholic, in this country, they would make the same argument. And so one of the things that's going to emerge now in discussions is that, you know, are there multiple forms of democracy and when you talk about particularly the role of religion? And we know that when it comes to law that, in fact, there are, more often than not, most Americans think, oh, well, the U.S. and the E.U. are the same.
ESPOSITOWell, our notion of separation of church and state, as we said earlier, in terms of many European countries, it's not the same, and religion does play a role. And the same thing happens when we start talking about hate speech and whether or not hate speech is banned in some countries. So there's enough to say that there's a kind of double standard operating within the West. And that makes it very difficult to simply try to leverage and say, you know, there's a single model. It's universal and somehow universally accepted, and it should just be adapted or imposed.
NNAMDIWhat do you in response to this tweet we got from Evil Twin? "The problem with legislating blasphemy is that one person's statement of faith is a denial of another's faith."
ESPOSITOI think that's very true, and there is that problem. I'm not arguing for, you know, for legislation with regard to blasphemy. What I would argue for is that actually, what the U.S. and the E.U., for example, have to deliver on is an agreement that they made with the OIC in terms of the issue of the OIC pushing for a number of years for the criminalization of the defamation of religion. And the agreement was, on the one hand, the acceptance by the OIC of U.S. and E.U. sort of norms.
ESPOSITOBut, on the other hand, the U.S. and the E.U. talking about the fact that they would move in a variety of ways to attend to influence, if you will, popular culture so that there would be, they didn't use this language at all, you know, a sense of proportionality or of self-censorship. And the fact is what this is underscoring, this latest flap but also the broader debate that's emerged, is that there's a lot of homework to be done.
NNAMDIOn to the telephones. We start with Matt in Chantilly, Va. Matt, you're on the air. Go ahead, please.
MATTThank you, Kojo. I just wanted to bring up a point that I thought had some relevance is here we're talking about making something illegal internationally. But the positive aspect, I guess, is that you're not allowing blasphemy to continue. But then again, the negative side of this, there's a lot of countries, not a lot, but some countries have laws against spreading Christianity, speaking the word, converting people to the safe in public.
MATTSo where -- there's a double standard here, like they're willing to say, OK, no blaspheming. But, guess what, in your country, we're still going to regulate what you say is spiritually. So I think it's very one-sided. I think that...
NNAMDIIndeed. Go ahead.
MATT...when we start engaging in that behavior, in that one-sided behavior, we are opening doors that you cannot shut because it might be, tomorrow, the Prophet Muhammad, and then after that, it might be a large sect that chooses to worship reptiles. And then you made a bad frog cartoon, and now you have people burning an embassy. You open a lot of potential doors -- very dangerous stuff.
NNAMDIWell, John Esposito, as we mentioned earlier, a number of Muslim countries are calling for anti-blasphemy laws. But around 30 countries, including Egypt, Pakistan and Iran already have them. Do these laws protect religious minorities, Christians, Jews?
ESPOSITOI think that that really does depend on the country. But there is a significant issue in a number of countries. I mean, we know this. You don't have to be an expert -- that is, if you read the newspapers regularly. There are issues about the rights of religious minorities.
ESPOSITOAnd indeed, the challenge to emerging democracies in some of the countries I mentioned earlier is how do you move now to a democracy in which you have equality of citizenship -- that means an equality of opportunity -- and move to, therefore, broadening your notion of the rights of religious minorities just as, also, the rights of women. I mean, that's a challenge. And these countries are, I think, attempting to work with that.
NNAMDIGetting back to the issue of the tech companies, Kevin, the bigger tech companies, like Facebook, Twitter, YouTube, have an enormous amount of control over content. But what responsibilities do they have to err on the side of free speech?
BANKSTONYou're right. There are a handful of platforms that, right now, have a great deal of power when it comes to what we can say and where we can say it and when.
BANKSTONMy organization, the Center for Democracy & Technology, has been working with those companies and academics and other free speech groups as part of something called the Global Network Initiative to come up with guidelines for companies that are trying to act ethically, trying to both serve their customers and follow the law in a way that respect human rights and especially the right to free expression while recognizing their own right to determine what standards they think are appropriate on their site.
BANKSTONFor example, most of the major services like Facebook or Google, their terms of service do prohibit hate speech however they define it even though our First Amendment protects hate speech unless it is inciting someone to imminent violence or is a direct threat against someone. And that's their call, that's their choice, that's their decision about the kind of community they want to foster on their site. And we count on competition from other platforms to moderate the cost of free speech from that kind of guideline.
BANKSTONBut when it comes to their responsibility to us, the user, when it comes to content takedowns either at the demand of a government or in line with their own terms of service, I think there are some very basic principles that need to be followed. One is that they need to resist over-broad government requests. Make sure that they are in writing. Make sure that they're as narrow as possible. And minimize the free expression impact as much as possible by construing them very narrowly.
BANKSTONThey also need to do that as transparently as possible, and I think this is really key. Whether we're talking about government demands or implementation of a company's terms of service, they need to be transparent about demands for content takedowns. They need to be transparent about -- and very, very clear about what is acceptable and what is not on their site and be clear and consistent about that.
BANKSTONThey need to be clear about what procedures they follow when they take down material. And perhaps most importantly, they need to be very clear about what steps you can take as a user if your material is taken down and you think it has been taken down wrongly.
NNAMDIKevin Bankston, he is senior counsel and director of the Free Expression Project with the Center for Democracy & Technology. He joins us in studio to discuss free speech issues around the world along with John Esposito, who is a Georgetown University professor of religion and international affairs and author of the books "The Future of Islam" and "Islamophobia and The Challenge of Pluralism." Back to the telephones. Here is Julio in Vienna, Va. Julio, your turn.
JULIOYes, I -- in the recent days, the U.S. government is trying to extradite to U.S. some blind cleric in London who has been preaching hateful speech against the U.S. Now, I understand that there are laws in the U.S. that prevent people from inciting violence against all people. So couldn't the same laws that this cleric is being -- is going to be prosecuted again, couldn't the same laws be used in order to prevent people from posting funny movies about insulting the prophet?
ESPOSITOI don't think that -- and I'm not a lawyer here, but I don't think that you could draw that conclusion in terms of our legal system, and I think that it would be handled in a completely different way at this point.
NNAMDIAnd I think that the situation with the blind cleric is that the U.S. is trying to make a connection specifically between what he said and the 9/11 bombings that took place. And I don't think that -- and I stand to be corrected, obviously -- but that he is merely wanted for inciting to violence.
ESPOSITOCorrect. But I think that there is an issues that emerges here that we can say we need to address that goes beyond this, and that is, when we talk about hate speech, there's a difference between talking, it seems to me, about hate speech and hate speech that is -- that deliberately attempts to provoke violence. And so, for example, if you look at some of the interviews that were made with the so-called people that were responsible for the recent anti-Islam film, they make it very clear that they intended to not just provoke but to provoke -- and to provoke to violence.
ESPOSITOAnd I think that when we start talking about hate speech, I think that that's also very important. But I would also say that if we're going to be dealing with this issue long term, there's got to be a level playing field. And, see, the pushback you get from some is, well, wait a minute. If, in fact, you can say that freedom of speech does not enable one to deny the Holocaust to be anti-Semitic and to engage in certain forms of blatant racism, then why does this not extend, you see, to Muslims and to Islam as a religion? But this is a broad, a very broad issue. It's not just this single item.
NNAMDIBecause you do point out that in Germany, you can't deny the Holocaust. Anti-Semitism is a crime in many European countries. There are a lot of instances where images, movies, paintings were deemed unacceptably offensive. And we not only have laws against hate speech here, but even against what we can show on primetime network television.
ESPOSITOYeah. And you also had, for example, seven years ago a court in France, and then it was also picked up in Milan, when someone produced a variation on Michelangelo's "Last Supper" in which Christ was a woman, but also you had three men embracing, one of them bare from the waist up, et cetera. You had the courts forbidding, and not only forbidding, but, in the French case, saying that such posters, et cetera, that were there had to be taken down.
ESPOSITOAnd part of the logic had to do with the question of sacred symbols and attacking, if you will, the beliefs and values, you know, of citizens within the country. And there are some comparable laws, as Professor Law said earlier in his presentation.
NNAMDIGot to take a short break. When we come back -- Kevin Bankston, hold that thought -- we'll continue our conversation on free speech around the world and what that has to do with technology today. But we're interested in hearing from you. 800-433-8850. Do you think tech companies like YouTube should restrict content or access because of the laws of the country in which they happen to be operating? 800-433-8850 or send email to email@example.com. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're talking about free speech around the world and whether or not technology companies have any responsibility in promoting it, even if it happens to be violating laws in other countries. We're talking with John Esposito. He's a Georgetown University professor of religion and international affairs, author of the books "The Future of Islam" and "Islamophobia and the Challenge of Pluralism."
NNAMDIKevin Bankston is senior counsel and director of the Free Expression Project with the Center for Democracy & Technology. Kevin Bankston, a lot of websites and online services have their own restriction standards users must follow on the site that they set for themselves, and they're often much more restrictive than U.S. laws. Can you talk a little bit about that?
BANKSTONSure. U.S. law, both the First Amendment and our statutes, do give communications platforms, publishers an ability to make their own choices about what kind of content is appropriate for their site. So Facebook doesn't approve of hate speech or explicit or violent -- sexually explicit or violent content on Facebook because that's not the type of community they want on Facebook. That's not the type of user they want on Facebook.
BANKSTONThey want Facebook to be a family-friendly place where everyone feels safe to share with their friends, and that's appropriate for them to make that choice. The question then becomes, how do we enforce those terms of service in a way that is very clear and very fair and doesn't lead to arbitrary or absurd results, which sometimes does happen?
BANKSTONA good recent example is the page, the Facebook page of The New Yorker magazine, one of the most storied and trusted journalistic enterprises in American history, was taken down by Facebook, presumably by a fairly low-level content reviewing employee, because of a cartoon. The New Yorker is well known for its cartoons. There was a cartoon depicting Adam and Eve and depicting Eve with two dots that represented her nipples.
BANKSTONFacebook's policy against nudity allows male nipples, but not female nipples, and therefore this cartoon and the entire New Yorker page were taken down from Facebook. Facebook -- New Yorker -- the New Yorker objected quickly and strenuously, and their page was put back up.
BANKSTONBut the question is, what about those of us who are not the New Yorker who have their content taken down, or their page taken down, or their account deactivated based on this kind of application of the terms of service, an over-broad application of the terms of service that was targeted at something lascivious and ended up being used against something that was a, you know, inoffensive joke from The New Yorker?
NNAMDIYou feel the most important aspect of this is transparency. Talk a little bit about that.
BANKSTONWell, the way to avoid these kinds of problems, first, is to be as clear as possible about what is and is not allowed. If written more clearly, perhaps, both users and the people implementing the terms of service would have understood that this is not the type of thing that the terms of service were targeted at, although, to be fair, right now, I think Facebook is the leader in the space in terms of publishing its own internal guidance about how it implements its terms of service procedures and how it judges content.
BANKSTONYou know, they have these very detailed flowcharts that they've given to users. So I want to give them great credit for that. But you need to be transparent about what is and isn't allowed. You need to be very transparent about when something is being taken down and why.
BANKSTONAnd once again, you do need to be very clear about what procedures there are to appeal those decisions, which is a very hard mechanism to put in place, admittedly, for a site that has billions of users posting billions of pieces of content. But that makes it all the more important that they have clear routes for humans to reach humans to help them.
NNAMDIWe got an email from Phil in D.C., who says, "Anti-blasphemy laws just coddle the emotionally immature. I can only be offended by someone's speech if I choose to be offended. I have no sympathy for those who choose to be offended." But then there is this from Hamid (sp?) in Rockville, Md. Hamid, you're on the air. Go ahead, please.
HAMIDYes. I have a question and a comment. My first comment is I will relate -- inhibit -- relate that we have to inhibit free speech, of course, because you can't yell fire in a crowded movie theater. It could be harmful, and it could cause agitation even if it doesn't inflict physical harm. But when you look at free speech -- and I hear a lot of people trying to defend the cartoon and defend the video of the Prophet Muhammad on the basis of free speech.
HAMIDBut I feel like we're inhibiting people's right to live freely if it inhibits their way of life, prohibits our social way of life. I feel like it has the same kind of impact as yelling fire in a crowded theater. And my question is what are we accomplishing when we intend to offend someone using free speech? Like, what -- I know we're trying to protect our right for prosperity and humanity. But when we allow free speech on the basis -- even when it does offend a large number of people, what are we accomplishing? What are we expressing? How -- what are we expressing? And my -- and another question I have is...
NNAMDIOK. Let me -- hold on that question for a second, Hamid, because I have Nicholas in Washington, D.C., who wants to look, in a way, at the other side of that coin before I have maybe John Esposito respond. So here is what Nicholas in Washington, D.C. has to say. Nicholas, your turn.
NICHOLASHi. Yeah. I'd like to talk about blood libel, which is the accusation that Jews require the blood of children in order to make matzos for Passover. This has been going on for centuries, initially...
NICHOLAS...initially -- Europe -- initially by Christians who did not trust the Jews to live within their villages.
NNAMDIWho's doing it today?
NICHOLASToday, it's state-sponsored by Saudi Arabia. During Ramadan, they sponsor and produce TV series, (unintelligible) type documentaries where you have the exact same kind of sordid depiction of Jews as you had in this ridiculous movie. But in the U.S., it's an individual doing ridiculous things, and you have the right to do so. And there is a recourse. If you're offended, you can actually sue him.
NICHOLASAnd just like in Europe, when it comes to the Holocaust, the rights of free speech may be curtailed in some cases. But in the case of Saudi Arabia, what recourse does anybody who's offended have? None, because we don't have the same system, so you can't really have a discussion, a global discussion, if nobody plays out by the same rule. So that's an interesting question to think about.
NNAMDIWhat do you say, John Esposito? Hamid says that we shouldn't be able to use free speech or suggest we shouldn't be able to use free speech if it offends people, if it makes them extremely, I guess, uncomfortable. On the other hand, Nicholas said, so, but we can do that, but what happens when other people in other countries do it to Jews and other religious -- other people from other religions?
ESPOSITOYou know, I think that, you know, free speech -- to begin with, free speech should not become an excuse for abridging the freedom of religion that people also enjoy. And one could argue that when you -- when we're moving to the level of hate speech that leads to discrimination and violence, for example, in the U.S. and E.U. and the uptick of the kinds of crimes that then occur, you know, there will be some who will say, hey, wait a minute.
ESPOSITOI would also dovetail that with the fact that, for example, in some major polls, one finds that more than 50 percent of Americans think that our laws should be based on the Bible even though we say we have separation of church and state. Now, how would those Christians -- and it happens to be most, you know, mostly Christians here -- how would those Christians also then feel?
ESPOSITOWhat do you think they'd come down if, in the name of free speech, you took what -- some of the scenes in -- that occurred in the film that is denigrating Islam? And instead, you simply put Jesus in in the place of Muhammad. And, therefore, you would have Jesus seeking revelation through oral sex with a woman.
NNAMDII don't think that would go over very well. Nicholas, thank you very much for your call. Hamid -- and I'm going to get to you in a second, Kevin Bankston, but, Hamid, what did you want to say? Hamid doesn't seem to be there anymore. Kevin, you've said that blasphemy laws risk criminalizing valuable speech. Can you explain?
BANKSTONYeah. And I wanted to articulate sort of a flipside of what Prof. Esposito is saying where you don't want free speech to become a threat to religious liberty, but the flipside of that is hate speech regulation or blasphemy -- regulation of blasphemy -- can itself become a treat to religious liberty to the extent that it interferes with your ability to express your own religious beliefs. The fact is, if you believe anything religiously or if you don't or an atheist, either way, you are a heretic to someone.
BANKSTONYour beliefs are blasphemous to someone. And to say that you cannot express those beliefs is certainly antithetical to free expression. To say that you can't express them vociferously or with strong language or with humor is, I think, also very dangerous, particularly when you get the point of if you're trying to draw a line between something that is respectful or not, first off, I should be able to be disrespectful. It is a way of expressing my own belief that, you know, that is in contrast to yours.
BANKSTONAll right. One good example, there is a "South Park," the cartoon "South Park," from the creators are -- also the -- of the -- I'm forgetting the name of the show -- the Broadway show, the -- "A Book of Mormon."
NNAMDI"A Book of Mormon."
BANKSTONThey have an episode that portrays the origin of John Smith and Mormonism, and it is very critical of John Smith. It basically portrays him as a charlatan. It does so in uncompromising, very humorous terms. Is that hate speech? Should that be criminalized? It certainly is offensive to Mormons, but it is also a satirical way of expressing an opinion about Mormonism and about the nature of belief itself.
ESPOSITOYeah. I think we have to distinguish. You know, to begin with, I think -- I would say that where we get into issues that are murky, when we're talking about hate speech that is deliberately geared to provoke violence, the example of the Mormon, you know, play is different. I mean, there's an issue for some people with it, but I think it's different from that.
ESPOSITOAnd I think with regard to the question of blasphemy and blasphemy laws, people aren't usually concerned here with whether or not you believe something that's different from them and, therefore, that's blasphemy. We're talking about people who feel that a film, a cartoons or whatever, that's committing blasphemy against their religion that they are blaspheming somebody's religion.
ESPOSITOSo I think that there is a distinction there in terms of the kind of issue that's now being raised in the international community and will be raised in the international community of wanting to be able to affirm universal, you know, rights but also have to deal with the question of defamation of religion.
NNAMDIHere now is Greg here in Washington, D.C. Greg, you're on the air. Go ahead, please.
NNAMDIHi, Greg. You're on the air. Go ahead, please.
GREGYes. My comment was about the double standard of how, on the one hand, we're expected to respect their rights to...
NNAMDIYou need to speak directly into the phone. We're getting a kind of echo from you, Greg. You need to speak directly into your receiver as opposed to if...
GREGYes. Can you hear me now?
NNAMDIYes. We hear you better now.
GREGOK. I wanted to address the double standard that I see between the sort of Islamic world and our world in which it's OK to, for example, the Taliban destroyed all those Buddhist monuments. And when you look in our own culture, somebody had referenced the "South Park" episode. Also, there was -- years back, there was an artist who had created a work called P-I-S-S Christ.
GREGAnd it was basically a crucifix in urine, and he was funded by the NEA. And people basically called for his head. But there was no rioting. Nobody died. They tried to pull the funding from NEA. But I think it still protected free speech. Just because you don't agree with it doesn't mean it's not valid.
NNAMDIYeah, but that's according to our law. You seem to be suggesting that other standards should simply adopt the same standard. And here is John Esposito on that.
ESPOSITOAnd it's who -- it's not even our law because people usually see this as, let's say, the West. As we stated, you know, time and time again, there are distinctions between the U.S. and the E.U. And with regard to the Taliban actions, the fact is they were condemned widely by many Muslim religious leaders in the world at that time. And, in fact, the delegation of senior Muslim leaders offered to go there, and the Taliban just ignored them.
ESPOSITOSo what the Taliban did -- and there are people who supported the Taliban -- is heinous, but, you know, a majority of Muslims would reject, and at that time did reject, that kind of action.
NNAMDIJohn, you posed the question, where do we go from here?
ESPOSITOWell, I think that really -- to go back to something I said earlier, I think that if we're going to get a way out, the question is to develop a more sensitive political culture, you know, a culture and a set of values that -- in dealing in this area with regard to that which is sacred to people. And I'll say that in the broader sense.
ESPOSITOIt cuts across religions but other things that, which is sacred to people, that there should be a sense of, if you will, limits, a sense of self-censorship, you know, a greater sensitivity. The idea that you merely say freedom of speech means I can do and say anything that I want to, that's not going to lead us anywhere.
NNAMDIJohn Esposito is a Georgetown University professor of religion and international affairs, author of the books "The Future of Islam" and "Islamophobia and the Challenge of Pluralism." Kevin Bankston is senior counsel and director of the Free Expression Project with the Center for Democracy & Technology. Thank you both for joining us. And thank you all for listening. I'm Kojo Nnamdi.
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