Podcast on Charlie Hebdo and freedom of speech

I discuss this topic with Jonathan Rauch, with Jeffrey Rosen moderating. Rauch and I disagreed about (almost) everything.

1. Should The Times have republished the latest Charlie Hebdo cover?

Rauch: yes, because of its news value.

Me: no, if The Times reasonably feared retaliation against its reporters. I also say that the news value of the cover is minimal because anyone can see images of it on the web.

2. Did European media that failed to republish the offending Charlie Hebdo cartoons act wrongly?

Rauch: not if they reasonably feared retaliation, but still it would have been better if everyone had republished in order to strengthen free speech norms.

Me: not if they reasonably sought to avoid provoking additional violence, against themselves or others.

3. Does the Charlie Hebdo attack show that European hate-speech laws are a bad idea?

Rauch: hate-speech laws cannot be enforced neutrally, resulting in hypocrisy and chilling effects. Hate-speech laws do not improve safety.

Me: if hate-speech laws had been enforced against Charlie Hebdo, then this attack would not have happened. So at a minimum, there is some evidence that they reduce violence. Rauch is right that hate-speech laws cannot be applied “neutrally.” But they can be enforced sensibly, to censor low-value speech that offends groups to the extent that violence may result.

4. Should Europe adopt U.S.-style free-speech law?

Rauch: yes, noting that we have more social peace in the United States than in Europe, and arguing that the First Amendment may account for this. People have no incentive to use violence to force the government to censor offending speech because they know that the First Amendment blocks the government from accommodating them.

Me: [bungling my description of French law, but anyway–] no, the U.S. is an outlier, strongly suggesting that what works for us (or currently works for us) is not ideal for other countries. Specifically, First Amendment law in the United States reflects various pragmatic compromises among groups in a pluralistic society that are different from the compromises that must be made in other countries, which have different groups with different views and interests. Our tendency to think that U.S. law reflects universal principles should be resisted.

5. Will the Charlie Hebdo attacks strengthen freedom of speech in France?

Rauch: yes, as illustrated by the marches and rallies, the outpouring support for Charlie Hebdo.

Me: no, the government will crack down on hate speech in order to reduce violence, and in a (perhaps futile) effort to repair the frayed bond between French Muslims and the state.