The Interview, Charlie Hebdo illustrate complexities of completely supporting free expression

I was recently asked to pen an article for The Civilian, a student publication at the Louisiana State University Paul M. Hebert Law Center, about the recent free expression conversations regarding the release of Sony’s The Interview. Some of my thoughts surrounding The Interview controversy aligned with my feelings about the tragic Charlie Hebdo attacks. Therefore, I combined the two current events in my article to make a larger point—to defend free expression in its totality, you must accept expression that confirms your views as well as expression that contradicts your views.

It is easy to be a champion of free expression when the expression affirms your pre-conceived views, but it becomes more difficult to be a staunch supporter of free expression when the expression conflicts with your opinions. In my article I demonstrate how only certain forms of expression are condoned by some people—a person I call a selective speech supporter”—and explain why it is vital to allow robust, unfettered expression and not merely those notions in concert with your own ideologies.

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The Interview, Charlie Hebdo illustrate complexities of completely supporting free expression

By Michael Lambert
As published in The Civilian
Jan. 23, 2015

Although many people claim to be supporters of free expression, their actions do not always back up their lofty claims.

Supporting free expression in its totality is not a selective process. It’s not a buffet where you fill your plate with expression that favors your viewpoints while leaving out expression in opposition to your views. Although it may be uncomfortable at times, to be a complete supporter of free expression, which includes the communication of ideas through speech and other means, you must welcome many types of expression onto your plate—even ideas that are offensive or in opposition to your views.

Within the past months there have been two prime examples of selectively supporting free expression. First, Sony proclaimed a victory for free expression in December by releasing “The Interview” after hackers, known as the “Guardians of Peace,” exposed troves of its confidential data. “The Interview” stars James Franco and Seth Rogen in an attempt to assassinate North Korean leader Kim Jong-un.

In addition to the cyber threats, the hackers, believed by many to be sponsored by North Korea, warned they would take terrorist actions against movie theaters that screened the film.

Sony’s choice to release the movie left many Americans flexing their free expression muscles in the face of the international hackers. But behind the scenes, Sony did not share the same strength. Sony pressured press outlets to not publish the internal Sony communications released by the hackers. “Motherboard,” an online technology magazine, reported that Sony’s attorneys sent threatening letters to Twitter and multiple news organizations demanding that they delete or not report the information gleaned from the hacks.

These were empty threats as the Supreme Court of the United States has held in many cases, including Bartnicki v. Vopper and Smith v. Daily Mail Publishing Co., that the publication of truthful information about matters of public concern is protected absent minor exceptions not present in this situation.

By releasing “The Interview” and attempting to intimidate the press, Sony, a private corporation not subject to the constraints of the First Amendment, publicly used the mantra of free expression as a shield in one hand against international hackers while holding a sword in its other hand threatening domestic press outlets for exercising their free expression. Sony chose to be an advocate for free expression only when it was beneficial for the company’s interests.

Another example of selectively supporting free expression occurred more recently when extremists attacked the French satirical newspaper Charlie Hebdo on Jan. 7, tragically killing 12 people.

More than a million people marched through Paris on Jan. 11 protesting the attack, chanting “Charlie, Charlie, freedom of speech!” But many world leaders involved in the march are the very ones limiting the free flow of information to their own citizens. For example, Egyptian Foreign Minister Sameh Shoukry, Turkish Prime Minister Ahmet Davutoglu, and Russian Foreign Minister Sergei Lavrov attended the march purporting to support free expression, but these world leaders are some of the worst offenders of expression freedoms.

In Egypt last year a court sentenced three journalists to jail for “terrorism.” The Committee to Protect Journalists named Turkey the world’s worst journalist jailer in 2012 and 2013. In Russia, independent journalists are rare as most news is funneled through the government. These leaders are hypocritically publicly condemning the assaults on free expression in France while attacking their own citizens’ expression rights.

The United States is fortunate to have expansive free speech rights, especially in comparison to many other nations, because of the First Amendment. Although the First Amendment safeguards numerous types of expression from government infringement, it does not protect certain categories of speech: fighting words, true threats, incitement, child pornography, defamation, and obscenity (as defined in the Miller test). The satire found in “The Interview” and the offensive speech found in Charlie Hebdo are not contained on that list; these types of expression are protected in the United States.

Being tolerant of extreme forms of expression doesn’t mean the tolerant person supports the expression; it just means the person supports the allowance of the expression. For example, I would never burn an American flag, but I respect the right of others to do so (Texas v. Johnson). I would never attend a Klu Klux Klan meeting, but I respect the right of others to do so. (Brandenburg v. Ohio). I would never chant anti-gay rhetoric on a public sidewalk during a military funeral, but I respect the right of others to do so (Snyder v. Phelps). These are all examples of constitutionally protected expression that I support even though I do not endorse the messages they are expressing.

These types of fringe expressions are protected for many reasons. Allowing vast expression leads to the pursuit of truth. This is often referred to as the “marketplace of ideas” theory. Justice Holmes, dissenting in Abrams v. U.S., wrote: “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Widespread forms of expression are also allowed to facilitate democracy and create an informed electorate. If all potential candidates—regardless of their beliefs—are able to disseminate their views without interference, voters can objectively pick among candidates during elections.

Additionally, permitting robust expression ensures individual liberty and autonomy. When governments forbid expression they disagree with, governments are engaging in thought control by attempting to tell their citizens how and what to think. Being able to hear conflicting positions on issues and engage in debates on those issues stimulates independent judgment. You are then able to form your own conclusions from your own thoughts.

Finally, if our right to say what is on our mind—whether offensive or not—is taken away, we will be chilled from speaking about other topics. If we are hesitant to discuss particular subjects, our ability to communicate expression that may have more First Amendment “value” is stifled. Forbidding offensive or fringe expression begins a slippery slope of suppression. To avoid chilling effects, we must allow more expression rather than less.

The real measure of a democratic society’s commitment to free expression is not supporting similar views, but it is standing up for the rights of those with opposing or unpopular opinions. Only then is free expression completely supported.

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