“Prior restraint” used to be a fairly well-defined concept, particularly in the area of First Amendment jurisprudence. It was generally accepted that we don’t punish ideas—what someone reads or says or thinks— unless they threaten to depart the realm of mere ideas, becoming a “clear and present danger.” There are two significant forces converging to compromise that settled law, both in the United States and abroad. The first is the rise of fear about terrorism across the globe. 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 the traditional media and the new forms of social media. Those debates have largely been focused on books like Mein Kampf, or voices like those of Cliven and Ammon Bundy, or suggestive images like Sarah Palin’s rifle crosshairs over the faces of her political opponents. We have generally arrived at a sort of free-speech absolutism: Speech must be met with more speech. Threats of insurrection have always been met with more than easy bromides, however. But even so, it’s startling to see how much the debate has changed recently. Harvard law professor Cass Sunstein, a former official in the Obama administration, has asked whether it’s time to reject the “clear and present danger” standard 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 “naive.” But how do we distinguish the naive from those who wish to be informed about a major global phenomenon? Is danger less clear and present when the extremist ideas are Christian? Most importantly, who will be the gatekeepers to decide not just 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—but France has also long had some of most restrictive speech regulations in the industrialized world. Moreover, a new surveillance law in the country allows Internet monitoring, phone bugging, and secret break-ins for vaguely described reasons ranging from “organized delinquency” to “major foreign-policy interests.” Administration of the law is overseen by a nine-person advisory committee, but the French prime minister has the ultimate decision-making power.
The current prime minister is Manuel Valls, whose stances against Muslims, migrants, trash-talking comedians, and Roma children have been controversial and divisive. He used to be mayor of the town of Évry; in that capacity, he was filmed by a news crew striding across the town plaza, where a pleasant-looking throng that included a number of black people had gathered. 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.”
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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 e-mail: “I hope that upon this great occasion…there will be present sufficient numbers of ‘blancos’ (and not too many dark-skinned), 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, sociologist Éric Fassin has written that it seems almost 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 operations of our own USA Patriot Act—are rife with translational dangers, whether attributable to carelessness, ignorance, or abuse.
But the question of threatening speech is even more complicated in the United States, where the right to bear arms has been deemed expressive. Consider the situation of Steven Weinberg, a professor and Nobel Prize– winning physicist at the University of Texas at Austin. He said he would close his seminars to anyone carrying a firearm, fearing that guns in the classroom would chill discussion. He is vulnerable to lawsuits under Texas’s new “campus carry” law.
Meanwhile, there have been demonstrations on the Austin university grounds pitting campus carry against another Texas law that forbids individuals from displaying or distributing obscene materials. Thousands of students plan to come together to protest guns on campus by attaching “gigantic swinging dildos” to their backpacks. As organizer Jessica Jin points out, the dildos are “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, before it’s restrained a priori. In the effort to keep ourselves safe, it seems easier to think of tying tongues than prohibiting guns.
