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Hate Speech or Fighting Words: Protections Under the First Amendment

On January 07, 2015, two gunmen attacked offices of Charlie Hebdo – a satirical magazine known for publishing controversial cartoons– in Paris, killing 12 people: eight journalists, two police officers, a caretaker and a visitor.

News media, quoting eyewitnesses, reported that at the time of the shooting, the gunmen chanted ‘Allah is Great’ and ‘we have avenged the Prophet Muhammad’ in Arabic because Charlie Hebdo was planning to publish cartoons of the prophet of Islam. Shortly thereafter, journalists reported that Al-Qaeda said it had directed the Charlie Hebdo attack. In the wake of events in Paris, then-French president, François Hollande, named the attackers as 'terrorists and killers’ and appealed to the French people to join hands to defend ‘democracy, freedom and pluralism.’

Many world leaders followed suit, condemning the attack as an assault on liberty and press freedom: British Prime Minister David Cameron, American President Barack Obama, Russian President Vladimir Putin, Indian Prime Minister Narendra Modi, European Commission President Jean-Claude Juncker, to name a few. The Charlie Hebdo attack was framed by many news outlets as an assault on freedom of expression, specifically, freedom of speech.

The purpose of this paper is to assess whether a publication of cartoons containing Hate Speech or fighting words would or should be protected by the Constitution of the United States under the First Amendment. In the public discussion after the Charlie Hebdo attacks, free speech was often described as an absolute right to say anything – to offend, to make a fool of others and of oneself, and to express an opinion regardless of the consequences. Common speculation led by mass media was that this understanding paid respect to the 12 people who lost their lives. Hence, the first section of this paper deconstructs the Charlie Hebdo cartoons that sparked the terrorist killings in France in 2015. The second section of this paper analyzes the protection of hate speech or fighting words under the First Amendment in the United States. The third section will examine Supreme Court precedents regarding political cartoons, actual malice, satire and parody. This section will also go into further detail about the specific case Hustler Magazine, Inc. v. Falwell. To begin, the following section of this paper analyzes some of the work scholars and other experts have completed concerning political cartoons, hate speech, fighting words, and the Charlie Hebdo attack.

Literature Review

Political cartoons are for the most part composed of two elements: caricature, which parodies the individual, and allusion, which creates the situation or context into which the individual is placed, according to Werner Hofmann, an Austrian art historian, cultural journalist, writer, curator and museum director. Hofmann also explains that caricature as a Western discipline goes back to Leonardo da Vinci's artistic explorations of “the ideal type of deformity,” or the grotesque, which he used to better understand the concept of ideal beauty. Over time the principles of form established in part by Leonardo had become so ingrained into the method of portraiture that artists like Agostino and Annibale Carracci rebelled against them. Intended to be lighthearted satires, their caricatures were, in essence, “counter-art.”

Benjamin Franklin's "Join or Die", which depicts a snake whose severed parts represent the Colonies, is acknowledged as the first political cartoon in the United States. The image had an explicitly political purpose from the start, as Franklin used it in support of his plan for an intercolonial association to deal with the Iroquois at the Albany Congress of 1754. This began the American usage of political cartoons as a means of criticizing current events of the time with seemingly simple pictures embedded with greater visual context. However, for most observers, “the American cartoon didn’t really come into its own until 1871, when Thomas Nast’s caricatures brought down Boss Tweed, the infamously corrupt head of Tammany Hall, the seat of New York’s Democratic Party political machine.” Victor S. Navasky, scholar, editor and journalist, wrote that while many art historians have undervalued the artistic relevance of cartoons, they have also recognized the power of image and “anthropologists report that people have responded to images as if they were real; as if, in the words of art historian David Freedberg, they ‘partake of what they represent.’”

When in 2005 a Danish publication published cartoons depicting the Prophet Mohammed, journalist Sören Billing wrote that there were riots, lootings and assassination attempts in Denmark and around the world. The 12 caricatures, published by Jyllands-Posten, a conservative Danish paper, on September 30, 2005, included portrayals of the prophet wearing a bomb inside a turban and as a knife-wielding nomad flanked by shrouded women. At the time, the event was explained by many in the press as the Quran forbids the depiction of the prophet, therefore the Jyllands-Posten cartoons were blasphemous and warranted criticism and fired debate. Nearly all the western media took the lesson of intimidation and refused to run cartoons which might be seen to be critical of Islam. Charlie Hebdo stood almost alone against this. Since that date, it continued publishing many cartoons and caricatures of Mohammed and the last cartoons sent out on Charlie Hebdo’s Twitter feed an hour before the attack was a cartoon of the purported ‘Caliph’ of the self-styled Islamic State,Abu Bakr al-Baghdadi. On January 9, 2015, the front page of French daily newspaper Le Monde featured a striking headline: “Le 11 Septembre Français.” Scholar Matthew Moran acknowledged that the powerful reference to the events of 2001 in New York reflected the profound sense of shock at the worst terrorist attacks on French soil.

These events had nothing of the scale and coordination of the subsequent November 2015 attacks that left 130 dead and many more injured, yet the Charlie Hebdo shootings were significant for at least three reasons. First, the shootings represented the most serious terrorist attacks since the bombing of the Paris metro by the Algerian Armed Islamic Group in 1995. Indeed, in the two decades leading up to 2015, The Telegraph reported that France had “developed a reputation as Europe’s ‘counterterrorism powerhouse,’” managing to avoid major jihadist attacks such as those that hit the United States and the United Kingdom. The Charlie Hebdo attacks thus marked an important turning point. Second, as analyzed by academic Mustafa Dikeç, the media as a whole was quick to note that each of the terrorists had links to the Parisian banlieues and commentary was soon grounded in these “badlands of the Republic.” The attacks were condemned as an assault on freedom of expression and core French values of liberty, equality and laïcité, the French form of secularism, by disciples of what Prime Minister Manuel Valls described as Islamofascism. Furthermore, Moran claimed that the terrorists were represented as the extreme manifestation of a deviant and nihilistic ‘other’ that rejected the Republic and embraced a form of ideological extremism that originated beyond France’s borders. Third, for some time prior to the Charlie Hebdo shootings, The Guardian reported that “France had been deeply concerned about potential attacks by a new wave of French jihadis returning from Syria, and had recently stepped up anti-terrorism measures.”

The virtual response of the ‘#JeSuisCharlie’ hashtag, was driven by a sense of solidarity with the victims and a desire to support “Charlie Hebdo’s alleged ‘values’: freedom of speech and an anti-establishment stand (against all ‘established powers’, be they political, religious, or economic),” as analyzed by french scholar Philippe Marlière. BBC later reported that the attacks prompted an unprecedented display of national unity in France with almost four million taking to the streets of French cities to express their disgust at the terrorists’ actions in a series of “unity marches.” The widespread display of national unity that followed the attacks was given additional momentum by the response in the political arena. The next section evaluates free speech under the first amendment and whether or not political cartoons with Hate Speech or fighting words would be protected.

Free Speech under the First Amendment

Among other cherished values, the First Amendment of the United States Constitution protects the freedom of speech, leaving the impression to many Americans that “[they] are freer to think what [they] will and say what [they] think than any other people,” as written by author, reporter and columnist for The New York Times, Anthony Lewis. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech.

Freedom of speech includes the right to criticize other people’s beliefs and values, and in

Western societies, artists who mock religion or other values within certain limits are not usually doing anything illegal. However, whether religiously provocative cartoons are laudable as defenses of freedom of speech or not depends on how one sees the cultural and political context in which they are published. They can be seen as acts of rebellion against tyrannical religious authority in general or as acts of rebellion against making religious figures exempt from ordinary factual and/or moral criticism. Conceiving freedom of speech as negative freedom also implies that insulting is, in principle, always an act that defends freedom of speech.

There is a vast literature on the totemic power of images, paintings, statues, and other variations of art. Navasky makes the point that images and power, especially where the image involves the depiction of a person but if that “person” is a divine being, it’s a different matter entirely. Of course, photographs are also images and have their own power. But as Navasky mentions, “people don’t blame photographers for the pictures the way they blame cartoonists for their cartoons.” However offensive political cartoons may be, the discussion often turns to questions regarding hate speech and fighting words. Hate speech “consists of written or spoken words that insult and degrade groups identified by race, gender, ethnic group, religion, or sexual orientation” and under the First Amendment, is a protected expression with the exception of two categories: fighting words and true threats. Fighting words are defined by the United States Supreme Court as “those that by their very utterance inflict injury or tend to incite an immediate breach of the peace” and only constitutes as such if “a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Meanwhile, true threats are defined as a speech or symbolic expression “intended to create a pervasive fear in victims that they are a target of violence.”

Historically, the constraints for freedom of speech have been understood to be institutional. It was introduced in order to secure the right of an individual to speak up without needing to be afraid of suppression from those who are in power, especially from the state or the church. It seems to be a rather new trend from the twentieth century to alter the scope of this freedom and evaluate the relations between individuals in this way, so that the central question turns out to be whether one person is allowed to say things that offend other people.

The ultimate faith of democracy is rooted in the marketplace of ideas, that through free and unfettered rational discourse good ideas will drive bad ideas out of circulation. But the ultimate faith within art is that transcendance of “good” and “bad” ideas, accumulating all ideas from various angles and nudging them closer and closer into the public’s eye. These two pillars are then met by what Navasky claims as pillars of faith: “one, free-speech values, above all else; the other, the idea that parody, cartoons, and caricatures are a form of satire, and as such deserve to be protected along with speech itself… At a minimum, visual language deserves the same protection as verbal language.” The next section discusses the first amendment regarding protection of free speech for political cartoons under the precedent set by the Supreme Court.

Supreme Court precedents for Free Speech

In 1988, Hustler Magazine published a parody of a liquor advertisement in which Reverend Jerry Falwell described his first sexual encounter as a drunken encounter with his mother in an outhouse. Campari, the aperitif, had run a series of magazine advertisements labeled “the first time” which portrayed those who had tasted Campari, but, by innuendo, their first sexual experience. Falwell sued for libel, invasion of privacy, and intentional infliction of emotional distress. According to the U.S. Court of Appeals for the Fourth Circuit,

the parody did not invade privacy under Virginia law because it was not used for commercial purposes. There was no libel, the court said, because no reasonable person would believe that the statements about Falwell in the parody were factual. However, the Fourth Circuit did rule t