The Nation Magazine, February 22, 2016
Prior restraint” used to be a fairly well-defined concept, particularly in the area of First Amendment jurisprudence. It was generally accepted that we do not punish ideas—what someone reads or says or thinks—unless those ideas threaten to depart the realm of mere ideas, becoming a “clear and present danger.” There are two significant forces that are converging to compromise that settled law, both in the U.S. and abroad. The first is the rise of global fear about terrorism. The second is the enormously complex communicative power of the internet.
Many of us in the legal academy have spent the last few decades of the so-called culture wars debating the definition of dangerous speech in traditional media and in new forms of social media. Those debates have been largely focused on books like Mein Kampf, or voices like those of Cliven and Ammon Bundy, or suggestive images like Sarah Palin’s rifle cross-hairs over the faces of her political opponents. We have generally arrived at a sort of free speech absolutism, and sunny cliches that hate speech must be met with more speech. Threats of insurrection have always required more than easy bromides, but nevertheless, it is startling to see how much the contours of the debate have changed recently. Harvard Law Professor and former Obama administration official Cass Sunstein has asked whether it’s time to reject the “clear and present danger” test in favor of one that suppresses “explicit or direct incitement to violence, even if no harm is imminent.” University of Chicago law professor Eric Posner has gone much further, proposing a law that would make it illegal even to read websites that “glorify” the Islamic State or to share links to such sites.
Many of the restrictions now being proposed are directed specifically against the Islamic State—a threat less serious for being a “state” than a state of mind. Posner worries about the persuasive appeal of such sites to the “naïve.” But how do we distinguish the naïve from one who wishes to be informed about a major global phenomenon? Is danger less clear and present when extremist ideas are home-grown and packaged as Christian? Most importantly, who are the gatekeepers not just of what’s dangerous to publish, but who gets punished for reading it?
Many parts of Europe already deploy more stringent regulations on incendiary speech. We may recall that, in the wake of the terrible Charlie Hebdo massacre, the French came together in one of the largest demonstrations in history, dedicated to freedom of expression and resistance to censorship; but France has also long had some of most restrictive speech regulations in the industrialized world. Moreover, a new French surveillance law allows internet monitoring, phone bugging, and secret home invasion, for vaguely described reasons ranging from “organized delinquency” to “major foreign policy interests.” Administration of the law is overseen by a 9-person advisory committee, but it is the prime minister who has ultimate decision-making power.
That prime minister is Manuel Valls, whose stances—against Muslims, migrants, trash-talking comedians, and Roma children–have been controversial and divisive. Valls used to be the mayor of the town of Evry; while in that role, he was captured by a television news crew striding across the town plaza, through a pleasant-looking throng among whom were a number of black people. Valls, annoyed, complained that their presence detracted from the footage and called, in three languages, for white faces to be more prominent: “some blancs, some whites, some blancos.”
Recently, Valls was scheduled to attend a meeting at the University of Avignon. In response, Bernard Mezzadri, a classics professor there, wrote his colleagues a mocking message in an internal email: “I hope that upon this great occasion…there will be present sufficient numbers of ‘blancos’ (without too many of the tanned persuasion), so as not to project too bad a picture of our institution.” The president of the university reported the message to the local constabulary. The prosecutor then pressed charges against Mezzadri for public incitement of racial “discrimination, hatred or violence.” The case has sparked widespread protest in France.
If this prosecution seems silly to some of us, it is because Mezzadri’s message is so clearly sardonic. The gatekeepers seem to be exhibiting some fundamentalist tendencies of their own: indeed, journalist Eric Fassin has written that it almost seems like a resurrection of pre-revolutionary law, when charges of “blasphemy” could be brought against those who dared to mock the king.
Mezzadri’s case is an object lesson in why “emergency” restraints in a time of “perpetual” emergency and “endless” war—whether France’s laws or the dark, unexplained operation of our own USA Patriot Act—are rife with translational dangers, whether attributable to carelessness, ignorance, or abuse.
But the question of speech as imminently threatening or incendiary is even more complicated in the American context, where the right to bear arms has been deemed expressive. Consider the situation of Professor Steven Weinberg, a Nobel-prize-winning physicist at the University of Texas at Austin. He recently said he would close his seminars to anyone carrying a firearm, fearing that guns in the classroom chill discussion. For this, he is vulnerable to lawsuit under Texas’s new “campus carry” law, which goes into effect on August 1, 2016.
Meanwhile, there have been demonstrations on the Austin campus pitting “campus carry” against another Texas law that forbids individuals from displaying or distributing obscene materials. Thousands of students are coming together to protest guns on campus by attaching “gigantic swinging dildos” to their backpacks. The logic has been summed up thus: “You’re carrying a gun to class? Yeah, well I’m carrying a HUGE DILDO.” Dildos are, as organizer Jessica Jin points out, “just about as effective at protecting us from sociopathic shooters, but much safer for recreational play.” A veritable jouissance of expressive freedom may be found at #CocksNotGlocks. Have a look while it lasts, before it’s a-prior-ly restrained. In the effort to keep ourselves safe, it seems somehow easier to think of tying tongues than taking guns.