Charlie Hebdo, Legal Rights, & Moral Obligations

Why there should be a moral prohibition against intentionally using the legally protected freedom of speech to provoke grave offence.

By Professor Nigel Biggar (Oxford University)

January 7, 2016 Picture: Valentina Calà/Flickr

This article is part of The Critique’s Great War Series Part II: Charlie Hebdo, Free Speech & Religious Violence Exclusive. O n a perfectly ordinary Wednesday morning early in January this year, two armed men burst into the Paris headquarters of the French satirical weekly, n a perfectly ordinary Wednesday morning early in January this year, two armed men burst into the Paris headquarters of the French satirical weekly, Charlie Hebdo . They called for the editor-in-chief, Stéphane Charbonnier , to identify himself. When he did so, they killed him, before proceeding to spend up to ten minutes shooting other members of the staff. By the time they’d finished, eleven people were dead and eleven others wounded. The mass murderers were French citizens of Algerian parentage. They claimed to be members of the Yemeni branch of Al-Qaeda. Why did they do it? Charlie Hebdo had long been a fiercely anti-religious newspaper. In 2006 it republished the infamous Jyllands-Posten cartoons of Muhammad, one of which featured him with a bomb under his turban. Six years later it published more cartoons of the prophet, some depicting him nude. While the Quran itself does not prohibit images of Muhammad, some prominent and historic strands of Islam do regard all human images as idolatrous. Consequently some contemporary Muslims, especially members of disaffected militant groups, view the depiction of the prophet, especially when mocking, as blasphemous and deserving of the death penalty. Two days after the mass-shooting, Al-Qaeda in the Arabian Peninsula, claiming responsibility, justified it as “revenge for the honour” of Muhammad. In reaction to such an outrageous atrocity, it is perfectly understandable that millions of people in Paris, in France, and around the world poured onto the streets to demonstrate their support for Charlie. No one deserves to be slaughtered merely for offending someone else, not even when the offence is intended as an insult. More deeply, of course, the right to freedom of speech is precious. It allows individuals to testify in public to the truth of things as they see it. It allows them to criticise what’s customary and conventional and established, be they beliefs or practices or institutions. It makes possible the seeds of revision, reform, and progress. It enables individuals and societies and polities to learn, maybe to change for the better. And insofar as this right is a legal right, conferred by a given legal system, it supports and defends the individual’s freedom against powerful enemies, whether personal or corporate, by means of the authority of the law and ultimately the coercive sanctions of the state. Freedom of speech is one thing, however; freedom of expression is arguably another. In one sense, they’re much the same: speech is a form of expression. And the two phrases are often used synonymously. Nevertheless, their connotations are subtly different. ‘Speech’ connotes an articulate statement, a contribution to rational conversation, a social or public phenomenon. The focus of ‘expression’, on the other hand, is on the individual subject, whose inner self is being expressed. Its connotation is more emotional than rational and, if not exactly private, then individualist. It conjures up the image of the Romantic artist, full of his or her own native genius, absolved from the tiresome rules that bind ordinary mortals, and permitted to do and say as she pleases, exercising a transcendent, godlike, even anarchic freedom.

Roel Wijnants/Flickr

Maybe this distinction is subtle to the point of invisibility, but suppose that it holds. Why would it matter? It matters because ‘speech’ implies a certain responsibility to other people—a responsibility to address, to communicate, to persuade, to be accountable, to give reasons and to receive them, to prove beliefs and even to admit errors. ‘Expression’ implies none of these things. And in Western culture such as we have it today—where belief in the authority of objective truth (outside the natural sciences) is weak, and belief in our common obligation to it is weaker; where individual authenticity and freedom of choice are dominant values; and where the discipline of self-restraint and the pain it involves are more the objects of suspicion than esteem—the tendency will be to dissolve accountable ‘speech’ into unaccountable ‘expression’. Thus the right to freedom of speech comes to be understood as the legal right to say whatever one damn well pleases.

“In Western culture such as we have it today, the tendency will be to dissolve accountable ‘speech’ into unaccountable ‘expression’. Thus the right to freedom of speech comes to be understood as the legal right to say whatever one damn well pleases”.

Now it might be that the legal right to freedom of speech should still encompass the freedom to self-expression of this kind. It might well be that no law could clearly capture the difference between responsible ‘speech’ and irresponsible ‘expression’, and that courts, therefore, could not be expected to adjudicate between them. It may be that for the sake of responsible freedom we must allow, legally, irresponsible freedom, too. Nevertheless, the word ‘speech’ is better able to remind us that the securing of a certain freedom by means of a legal right, however important that is, is not the conclusive task. There remains the moral business of exercising that freedom well or badly. The space that lies within the walls of the legal right is not a morality-free zone. What law permits, moral obligation might yet forbid.

“What law permits, moral obligation might yet forbid”