THE BLOG
01/15/2015 03:49 pm ET Updated Mar 17, 2015

The Attacks in Paris Are a Clarifying Moment for Freedom of Speech

TOSHIFUMI KITAMURA via Getty Images

The terrorist attacks in Paris, for all their horror and barbarity, are a clarifying event. Freedom of speech, we can all see, is the ultimate soft target, as vulnerable as it is precious.

The terrorists came first for journalists, selecting the satirical magazine Charlie Hebdo to rid the world of satire, irreverence and Western cultural excess. Hours later, revealing their true historical and ideological heritage, they came for the Jews. Deja vu of the worst kind.

While the creation of legal and cultural norms conducive to free speech can take generations, only a moment is needed to shatter that right, just as it takes only a moment for an angry and resentful mob, urged on by its leaders -- religious or governmental -- to turn against Jews, Europe's traditional and all-purpose scapegoat.

To their credit, millions have marched to proclaim their love of freedom and their solidarity ("Je suis Charlie") with the targeted journalists and their magazine. However, very few news media have been willing to publish the cartoon images that provoked the terrorists, and many have refrained from publishing the cover of the magazine's post-attack issue. While the publications may say that the cartoons of Prophet Muhammad violate this or that editorial policy, the truth is that they are afraid to be associated with them.

News organizations that for decades have proudly published in the face of demands by presidents and threats by dictators opted this week not to publish obviously newsworthy content, apparently out of concern that they too would become terrorist targets. I say this without criticism. The publications employ staff around the world, many of whom could be exposed to attack by jihadis. These are serious concerns.

But the fact remains that a handful of terrorists, allegedly directed by Al Qaeda's affiliate in Yemen, have succeeded in deterring highly independent and reputable news organizations from publishing images that they ordinarily would have elected to publish. While Charlie Hebdo itself has not been silenced, other major media have engaged in, and continue to engage in, self-censorship.

The events of Paris are clarifying for still another reason: they demonstrate that true freedom of speech requires a willingness to protect not only ideas and expression that one agrees with, but also ideas and expression that are offensive, repugnant, even hateful. That proposition, while obvious in the abstract, is too often disputed in practice.

Despite the French government's post-attack embrace of the magazine, many cartoons in Charlie Hebdo are probably illegal under French laws criminalizing expression that is offensive and insulting on the basis of religion or national origin. The magazine is the "South Park" of French print media, specializing in offending and insulting all major religions with cartoons that emphasize excretory and sexual functions in their caricature of images sacred to Muslims, Christians or Jews.

France is not alone. Other democracies that impose civil or criminal penalties for "hate speech" include Canada, Britain, South Africa, Germany, the Netherlands, Australia, New Zealand and India. The U.S. is the outlier. Our First Amendment, as interpreted by the Supreme Court, protects all the Charlie Hebdo cartoons, no matter how outrageous and provocative.

But even in America, with its tradition of official tolerance for unpopular viewpoints, Charlie Hebdo would have been banned from the libraries and curricula of our most elite and selective private colleges under politically-correct "speech codes" adopted in the 1980s and 90s (as pointed out by New York Times' columnist David Brooks).

The First Amendment's protection of hateful speakers and their hateful speech is based on considerations that are fundamentally pragmatic. One is the insight that trying to block the spread of an idea is self-defeating because it serves only to give that idea legitimacy -- why else would government try to discredit it? -- and, by making the idea illicit, to increase its appeal and potential audience.

The First Amendment also reflects the view that the best way to neutralize a bad or dangerous idea is to force it to compete in an open "marketplace of ideas" where its defects will be exposed through debate. Still another consideration embedded in First Amendment cases is the prevention of self-censorship caused by uncertainty about what is, and isn't, protected. The Supreme Court has sought to minimize this uncertainty by adopting rules, in the case of expression about public officials or issues of public importance, that are highly speech-protective -- even to the point of protecting speech that is false.

To many foreigners, America's protection of hate speech is baffling because the rants of bigots and hate mongers are not worth protecting. Americans do not disagree. We nonetheless protect such speech because even more than hate speech we fear a government that has the power to decide what speech will be heard and what speech will be silenced.

In countering Islamist terrorism, the best defense is not to circumscribe and regulate speech, but to foster free and open debate in which the idea of jihad is revealed as a nihilistic dead end, and tolerance of offensive expression -- like the Charlie Hebdo cartoons -- is seen as a virtue of civil society.

If France and other western democracies pursue this path, then the tragic events of Paris, January 2015, will be remembered as a defeat for terrorism.

Peter Scheer, a lawyer and journalist is the First Amendment Coalition's executive director. These views are his alone; they do not necessarily reflect the opinions of the FAC Board of Directors.