This summer the whole country seems to have fallen through the proverbial looking glass. A decent, pragmatic president gets called Hitler by the right and a traitor to the cause by the left, people angrily bring guns to town-hall meetings that have been convened on the subject of health care, the political landscape seems to change—or is it just the postures of punditry?—in a matter of weeks. And now First Amendment fundamentalists are confusing reckless endangerment with free speech, accusing a respected university press of, well, being a traitor to the cause of freedom. Denunciations have been raining down like town-hall insults on Yale University Press for its decision to withdraw 12 cartoons satirizing the prophet Muhammad from a book it is publishing about the Danish cartoon controversy. The Press has also come under fire for removing from the same book several other derisive Western images of Muhammad. But amid all the censorious protests against “self-censorship” an important legal principle has been ignored.
That is the principle of a “clear and present danger,” devised by Justice Oliver Wendell Holmes in 1919.
It was Holmes’ opinion that speech that “might bring about the substantive evils that the United States Congress has a right to prevent”—he was addressing protests against the draft during the First World War—should not be protected under the First Amendment. Fifty years later, this solid judicial precedent was refined in Brandenburg v. Ohio, where the Supreme Court ruled that the state cannot prohibit possibly violence-provoking hate speech unless such speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Read Alan M. Dershowitz’s article on the Yale cartoon controversy.
Leave aside the question of intent for a moment. Though both Supreme Court decisions dealt with words and not images, the principle of “imminent lawless action” could not be more relevant in this case.
The publication of the satirical cartoons by the Danish daily newspaper Jyllands-Posten on September 30, 2005, resulted in riots, death threats, and the murder of at least 200 people. The bloody havoc took place over a period of nearly three years. This terrible history makes the publication of the cartoons, or of any derisive image of Muhammad, “likely to incite or produce” violence. In the light of such carnage, anyone publishing the cartoons would virtually be guilty of intending to provoke such violence.
The most recent atrocity occurred just last June, when a car bomb exploded in front of the Danish embassy in Islamabad, Pakistan, killing eight people and injuring at least 30. Al Qaeda proudly claimed to be behind the bombing, describing it as retaliation for “the insulting drawings.” Like Freud’s concept of the obsessive id, fanaticism lives in an eternal present.
It is understandably tempting for Yale’s critics to want angrily to stand up—or at least to want other people to stand up—to militants whose thirst for vengeance is undaunted by the passage of time, the barriers of geography, or the certainty of capture or death. But standing up to terrorism is precisely what Yale did.
Rather than allow Islamic terrorists to yet again use the publication of the cartoons as a pretext to incite more savagery—does anyone doubt that the terrorists need such pretexts to provoke their followers to murder?—Yale chose to say no to homicidal lunatics and to deprive them of the vitriolic fuel they need to wage perpetual war.
Yale’s critics, however, seem to want it both ways. They want us to understand the profound threat posed to us by an utterly irrational barbarism that will not be reasoned with, and they want all sense of responsibility abandoned when dealing with an utterly irrational barbarism that will not be reasoned with.
When John Donatich, the editor in chief of Yale University Press—Donatich is my editor at Yale, and I am proud to call him my friend—said that he withdrew the cartoons because he did not want “blood on my hands,” he was not trampling on the Constitution and traducing the cause of global freedom. He was saying that he did not want the blood of Yale employees, students, and faculty, and the blood of their families, and the blood of his family, on his hands. He was heeding the advice—solicited by the university itself—of American and European counterterrorism experts, American diplomats familiar with Islamic militancy, the highest ranking Muslim official at the United Nations, and respected scholars in Islamic studies. With such warnings of “imminent lawless action” stacked on their desks, it would have been criminally negligent for the Press’ editors and university officials to go ahead and publish the book.
But the pundits are not praising Donatich and Yale for being sane and responsible and risking a storm of politically correct abuse. Rather, they are celebrating the author of the book, Jytte Klausen, for refusing to sign a confidentiality agreement meant to protect the identities of the experts Yale consulted. Klausen herself, despite her loud indignation, has not withdrawn her book from publication by Yale, bravely choosing instead both to have Yale publish her book and to denounce Yale to the media.
And if Yale had acted recklessly and published the book with the mocking images, and if that action had caused the deaths of 200 more people, would John Donatich’s bloody hands have been kissed by the armchair warriors now exploding in rage against him? Would he have been considered a hero for standing up to terrorism? Of course not—as the editors of newspapers across America, all of whom have declined to publish the cartoons to this day, surely know.
Still, the denunciations keep coming, right through the looking glass.
Lee Siegel has written about culture and politics and is the author of three books:Falling Upwards: Essays in Defense of the Imagination; Not Remotely Controlled: Notes on Television; and, most recently,Against the Machine: Being Human in the Age of the Electronic Mob. In 2002, he received a National Magazine Award for reviews and criticism.