William & Mary

Free speech under fire

  • Free Speech
    Free Speech  Demonstrators use colored pencils to show support for freedom of speech.  © Imago/ZUMAPRESS.com
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Editor's note: The recent Charlie Hebdo attack and Sony Pictures hacking have thrust into the spotlight threats against freedom of speech and freedom of the press around the world. Conversations at the national level have focused on how terrorism, including cyberterrorism, are impacting these sacred freedoms and what can be done to ensure these freedoms are protected. William & Mary and Colonial Williamsburg will be convening a panel discussion focusing on this controversial topic April 6 at 3 p.m. in Alan B. Miller Hall, home of the Raymond A. Mason School of Business.

Something in the American psyche revolted on Jan. 7 at the news that the French satire magazine Charlie Hebdo had been attacked by armed terrorists.

By the time the rampage was over, the gunmen had killed 12 of the magazine’s staff and had seized the world’s attention. In response, millions of people all over the world marched in solidarity with the free speech values Charlie Hebdo espoused. They carried pens and pencils and chanted “Je suis Charlie”; George Clooney said the same onstage at the Golden Globe Awards. Pundits across America fumed over why President Obama hadn’t dispatched a high-level state official to march alongside French President François Hollande and 40 other world leaders in Paris on Jan. 11. One of our founding principles, the First Amendment, was back in the spotlight, and we believed freedom of speech would again triumph over threats to its existence.

But it’s not that simple. Threats to free speech are complex and intricately linked to one another, and fused with concepts of identity, history and technology. It’s not simple at all.

Bloodshed over cartoons

It’s a testament to the grip the First Amendment holds on Americans that an obscure French magazine like Charlie Hebdo would instantly become known and revered nationwide following the attacks. The magazine had published racy, controversial cartoons of the Islamic prophet Mohammad on a number of occasions, knowing full well that such depictions were considered blasphemous in much of Islam. Indeed, Charlie Hebdo had endured a 2011 firebombing over cover art depicting Mohammad as the magazine’s “guest editor.” Its editor, Stéphane Charbonnier, said in 2013 that, “we have to carry on until Islam has been rendered
as banal as Catholicism.” The mockery — and the threats — continued. Charbonnier was killed in the January attacks, which were widely said to be a response to Charlie Hebdo’s continuing disrespect of Islam.

More than 3 million people took part in unity marches across France after terrorist attacks on the satirical magazine Charlie Hebdo. Many demonstrators used colored pencils to show support for free expression. © Imago/ ZUMAPRESS.comThe attacks struck a sharp chord in the United States, where it’s nearly unheard of to see terrorism as a response to an act of free speech. Statements today invite seemingly endless protest and outrage, but very rarely violent death. “It seems so foreign,” said William & Mary law professor Timothy Zick, a widely published First Amendment scholar. “We’re looking at it from here and thinking ‘how bizarre’ and ‘how unfortunate.’ But the incident does tap into a domestic debate on how far one should be able to go in terms of freedom of expression.”

Content limitations on freedom of speech are much more common abroad than in the U.S. In France, while blaspheming Mohammad is perfectly legal speech, denying the Holocaust is not. In America, despite many foundational similarities with Western European democracies, the climate is rather different.

“In terms of our free speech law, we’ve balanced it very differently from other countries,” said Zick, who teaches First Amendment, Freedom of Speech and Press at Marshall-Wythe. “In fact, the United States is exceptional in terms of hate speech. Most of the [Western] world imposes some sort of limitation on hateful speech and we don’t.”

“The type of freedom of speech risks and issues that the French cartoonists dealt with is maybe three or four steps ahead of what American editorial cartoonists deal with,” said Drew Dernavich ’90, an accomplished cartoonist himself who frequently publishes his work in The New Yorker. Dernavich cites a few factors for this difference. First, cartoons hold a much larger place in European culture than they do here. Airports are full of “really wild stuff” that would never see shelves in
America, he says. Second, since newspapers are the main source of political cartoons in the U.S., the last few decades of newsroom cuts have left many cartoonists without jobs. Fewer papers with fewer cartoonists means taking Charlie Hebdo-type risks is practically unheard of.

“I grew up in Boston,” Dernavich said. “We have the Herald and the Globe: one right-wing and one left-wing. They have different audiences and aren’t afraid to take shots at one another.”

Unlike Boston, many American cities have seen two or more newspapers consolidate and contract into only one. “Now, if there’s only one cartoonist, it’s going to be more lightweight in the humor and appeal to everybody,” said Dernavich.

That said, many outlets in the United States debated publishing some of the controversial Charlie Hebdo cartoons after the attacks. The New York Times declined to do so, saying it would cross the “line between gratuitous insult and satire.” Online outlets, including BuzzFeed, Vox and the Huffington Post, opted to publish the cartoons.

Max Fisher ’08 is a content producer for Vox, covering primarily foreign news. For Vox, the cartoons were part of the news and it therefore made sense to publish them with their coverage of the attacks. But Fisher also understands the argument not to.

“There’s been this weird meta-debate around this,” he said, “that the reason outlets should publish it is not for the news value — not to educate readers — but in a show of solidarity with Charlie Hebdo. [They’re saying] if you don’t publish it, you’re capitulating to terrorism. I just think that argument is ridiculous.”

Dernavich, like Fisher, understands the editorial concerns that play into decisions to run or re-publish controversial material.

“As an artist or creator, those are issues that anybody has to deal with all the time,” said Dernavich. “I have to take into account the audience, the editors,
the voice and the tone of the paper. That’s part of the challenge of making good art.”

He remembers a difficult decision at The New Yorker following the attacks of Sept. 11, 2001. Dernavich recalled fellow cartoonist Alex Gregory’s “mild” take on a suicide bomber visiting a tailor’s shop. The work never got published, he believes, because the cartoon felt too personal for the magazine’s New York staff.

“A lot of publications went the same route,” he said. “As much as you wanted to express outrage toward what happened, the tragedy meant something for those who were close to home. There are lots of complicated decisions to make.”

Good judgment, said Fisher, is critical. There is no justification for the use of violence, he said. It’s important, however, to understand that free speech does not occur in a vacuum.

“Nobody is arguing for taking away the free speech of Charlie Hebdo or people like them,” he said, “but it’s a question of how responsibly are they using that power of free speech.

“You have a lot of people trying to boil it down to black and white: you’re with Charlie Hebdo or you’re against Charlie Hebdo. But as a journalist you’ve got to do more than that. You’ve got to see nuances, shades of gray, layers.”

The American hue of gray doesn’t look like the French shade, nor the German or Danish. When comparing the First Amendment in America to free speech worldwide, each country chooses its own path.

“Some people say it’s a mistake that we’ve balanced in favor of speaker autonomy and not dignity or equality,” said Tim Zick. “That’s not a dead debate.”

In fact, the debate is older than the United States itself. The freedoms that we cherish today can be traced to the Bill of Rights and have roots reaching back to the oldest public college in the nation — William & Mary.

Free speech in the infant republic

In 1644, John Milton’s Areopagitica contained one of the most influential defenses of free speech in the Western world: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

Thomas Jefferson 1762 had read Milton by the time he arrived at William & Mary as a student. When he later studied under prominent jurist George Wythe — the first-ever law professor in the U.S., who taught at the College — he found a perfect match: they both valued legal education alongside the humanities. They remained close collaborators and political allies for decades to come. As Wythe’s student, Jefferson witnessed firsthand his teacher’s fierce opposition to a landmark threat to free speech in pre-Revolutionary America: the Stamp Act.

The Stamp Act was a tax on paper in the American colonies, requiring many important documents to be printed on specialized paper that could only be bought with British — not colonial — currency.

It was designed to raise money for British armies abroad. But to Americans, the Act looked for all the world like a Parliamentary attack on colonial self-government, commerce and free speech.

Wythe wrote to the House of Commons in 1764, protesting the Act before it was passed the following year. He developed a slight reputation as a revolutionary.
Widespread opposition to the law spread throughout the colonies, surprising the British authorities and stirring the rebellious spirit that would come to a head a decade later. By 1766 the Stamp Act was barely enforced at all, but its mark had been made on Jefferson.

“Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” In 1787, Thomas Jefferson wrote these words to Dr. James Currie. Jefferson was in Paris during the Constitutional Convention, and did not sign the governing document himself. But he took threats to free speech seriously, as evidenced by his presidential campaign in 1800.

On July 14, 1798 — Bastille Day, incidentally — Jefferson’s predecessor John Adams signed the Sedition Act into law, a grave threat to free speech in the United States. Under the Sedition Act, newspaper publishers could be found guilty of treason, should they print “false, scandalous, and malicious writing against the government.” All the more alarming was the notion that the president would have discretion over what speech qualified as treasonous.

Adams had a dangerous tool to defend himself from his numerous critics; Jefferson would have tremendous ammunition against him in the 1800 race. That same year, Jefferson secretly authored the Kentucky Resolution in response to the Sedition Act. Therein, he outlined the idea that, should a state find such a law unconstitutional, that law would have no force in that state.

“…it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights,” he wrote. Jefferson’s stand was full-throated support of freedom of speech, and with it, the Constitution. Jefferson used opposition to the Sedition Act to successfully challenge Adams
for the White House in 1800 — and then pardoned the 26 men Adams had prosecuted with it. Without advocates like Wythe and Jefferson, and the influence of thinkers like Milton, these early obstacles may not have been overcome. But despite their influence and stewardship, the obstacles those men faced centuries ago don’t look much like our challenges today.

Digital intimidation

The United States Central Command, or CENTCOM, is responsible for most of the American military operations in 20 predominantly Muslim nations from Egypt to Kazakhstan. According to its commanding general Lloyd J. Austin III, there are “more than 94,000 U.S. soldiers, sailors, airmen, Marines, Coastguardsmen and civilians selflessly serving and sacrificing in difficult and dangerous places.”

So why, in January, did CENTCOM’s Twitter account link to this statement: You’ll see no mercy infidels. ISIS is already here, we are in your PCs, in each military base. With Allah’s permission we are in CENTCOM now. We won’t stop! We know everything about you, your wives and children. U.S. soldiers! We’re watching you!

It was only the latest example of digital intimidation. Those soldiers, wives and children had already been living with threats from ISIS, leading the U.S. Army Threat Integration Center to release this statement in October: “Think before you post. Always assume everyone in the world will be able to see what you are posting, or tweeting, even if the site limits your posts to your friends and family.”

Illustration by Drew Dernavich '90The impact on free speech has since become increasingly evident. According to several media reports, many wives of U.S. soldiers have decided to log off and abandon social media entirely, fearing that terrorists were monitoring their public comments.

Posting to Twitter and Facebook wasn’t worth exposing their families to these vivid threats. Hacking as an intimidation tactic, or “hacktivism,” is an emerging threat to the online world, according to Andy Purdy ’73, chief cybersecurity officer for Huawei USA, one of the world’s largest providers of telecommunications equipment.

Given the prominence of these social media attacks, he believes these breaches are significant, but primarily cosmetic. “[Terrorists] can do things that are very embarrassing,” he said. “It can give them publicity, and they can strike and move on. It’s really hard to catch them.”

CENTCOM got hacked. The CIA website was hacked in 2011. Major national newspapers like The New York Times get hacked with some frequency.

“At one point, we did get hacked by the Chinese government,” says Max Fisher of his time at The Washington Post. “They had to tear all these servers
out of the wall.”

But then the threats came to Hollywood. A series of leaks emerged from information on Sony Pictures’ servers: emails, Social Security numbers, salary information and personal data. The hackers called themselves the Guardians of Peace. They demanded that Sony cancel the planned Christmas Day release of “The Interview,” in which the CIA hires a talk show host to assassinate North Korean leader Kim Jong-Un. It’s a comedy.

Should Sony not cancel the film, the Guardians of Peace promised to strike at any theater showing the film. As theater chains proceeded to back out of showing the movie, Sony was forced to cancel its release. The Guardians of Peace had succeeded: they suppressed “The Interview.” The speech was not spoken as intended.

“The anonymity that characterizes the Internet makes it easier for hackers to do what they want to do and get away with it,” said Purdy, who directed the National Cyber Security Division of the Department of Homeland Security under President George W. Bush.

“As an attacker gets more sophisticated, the tools they use become more available. Then, less sophisticated attackers can use more sophisticated tools.”

The U.S. government later found Guardians of Peace to be linked to the North Korean government, although Purdy says that opinion is not universal. During Purdy’s tenure at Homeland Security, he oversaw the United States’ first-ever exercise simultaneously testing cybersecurity responses from international, federal and state governments along with private organizations. He stressed that the sort of electronic attacks that get attention — information leaks or Twitter impersonation — are nothing compared to the kinds of leverage terrorists could gain with an attack on critical infrastructure. Whether to suppress speech or do something worse, our networks are vulnerable.

Purdy consistently pointed out that security — the capability of organizations to keep information secure and private — can’t be an end goal. It has to be a process.
The better we get at protecting our networks and data, the fewer vulnerabilities are available for hackers to exploit. A preventative and collaborative approach is invaluable. Safety for people who speak their minds — artists, journalists and anyone speaking truth to power — is imperative.

“For freedom of speech to have any real meaning, governments need to protect those who have unpopular views,” said Purdy. “[They] need to rein in important
or egregious examples of retaliation against those who exercise the right to free speech — such as whistleblowers — against the powerful.”

But there is no hope of confining controversy to a magazine’s small circulation or the interior of a movie studio anymore.

“We’re connected to the rest of the world, and it to us,” said Zick. “Anything you say is not going to stay in your local community; it’s going to blast worldwide.”

Freedom of creativity

The rise in threats of terrorism, cyber attacks and intimidation may lead to changes in the interpretation of the First Amendment, said Tim Zick.

“People who are generally free speech libertarians now may think, maybe we’ve gone too far with protections and we do need to allow for this new threat,” said Zick. “I think the circumstances of culture and communication are forcing us to reexamine the limits that ought to be placed on some forms of communication.”

Andy Purdy, who was a news producer for NBC, CBS and others before entering the realm of cybersecurity, knows these challenges firsthand.

“Work in TV news provides frequent examples of instances where individuals and groups can speak truth to power, and how valuable that is in contributing to greater understanding of issues and progress,” he said. “My time in network television news helped teach me that the First Amendment is a complex matter in real life.”

“There’s no such thing as an actual free speech purist,” said Max Fisher. “People pretend to be when know that there are other considerations and you
have to balance those things.”

The balance is critical in any kind of pluralist society, but that is only one of the many First Amendment questions that are beyond the scope of any single article. And good judgment isn’t the only way to defend against threats to free speech. For Drew Dernavich, being provocative with speech is part of his job as a cartoonist. If something must be expressed, he suggests, no intimidation will prevent word from getting out. No rules can suppress it. It’s the same spirit that animates scholarship and revolution alike.

“I will destroy your idea on your own terms,” he said. “That idea is exciting to me, and I don’t think it happens enough.”

In the end, “The Interview” did find an audience. Sony opted to release the film online instead of through traditional theater chains. The hackers’ digital threats led ironically to digital distribution. Intimidation didn’t win.

“There’s always got to be a way to make the points you need to make,” said Dernavich. “You can be more creative than they are intolerant.”

This story originally appeared in the spring 2015 issue of the W&M Alumni Magazine.