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The heckler’s veto is an American legal concept sadly transformed into an international symptom of Western timidity. From Denmark to the Vatican, from the Berlin Opera to the editorial pages of The New York Times, the West has repeatedly shown that when confronted with the threat of violence from Islamic fundamentalists, it succumbs to the heckler’s veto with almost reflexive ease. Hecklers express their opposition to a speaker’s views not by refuting those views, but by rendering them radioactive. They accomplish this by threatening violence if the views are allowed an airing. Once the views are too dangerous to handle, they are expelled from the marketplace of ideas. The heckler then “wins” the debate by ensuring that there is no debate. The term “heckler’s veto” was coined by the constitutional law scholar Harry Kalven, and it first entered the Supreme Court’s lexicon in 1966 in Brown v. Louisiana. The case involved a group of blacks arrested for breaching the peace after refusing to leave a segregated library. The court noted the possibility that their presence might provoke others to violence, but rejected that possibility as justifying their arrest: “Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence.” Though the term “heckler’s veto” did not appear until 1966, the concept can be traced back to Justice William Douglas’ opinion in the 1949 case of Terminiello v. City of Chicago. A speaker under the auspices of the right-wing Christian Veterans of America delivered a diatribe against “atheistic, communistic Jewish or Zionist Jews” while an angry left-wing mob protested outside, throwing bricks and smashing windows. The speaker was arrested to prevent a riot. In reversing his conviction, Justice Douglas stated: “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” American law’s rejection of the heckler’s veto was neatly summarized in 1994 by Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit in Nelson v. Streeter. The case involved a painting of the recently deceased Harold Washington, Chicago’s first black mayor, wearing a white bra and G-string. The painting was removed from a public display because of the possibility of riots. Judge Posner stated: “First Amendment rights are not subject to the heckler’s veto. The rioters are the culpable parties, not the artist whose work unintentionally provoked them to violence.” “Rioters are the culpable parties.” That may seem as self-evident as declaring that criminals are lawbreakers. But to accept the consequences of that observation, a society must harbor a strong sense of moral conviction and self-confidence. For it is often safer — not just for law enforcement but for the community as a whole — to let the would-be rioters have their way before they riot. This eliminates the risk that innocent bystanders will be harmed. This course is especially tempting when the speech in question is unpopular, because it is easier to squelch the unpopular speaker than deal with the truculent protester. But a morally secure society rejects the easy course. MORALLY INSECURE Recent events show that the West is not a morally secure society. Last September, after a Danish writer complained about the difficulty he had encountered trying to find artists to illustrate his children’s book about Muhammad, the Danish magazine Jyllands-Posten commissioned 12 cartoonists to draw cartoons of the prophet. The consequences are well known. In October, two of the artists went into hiding because of death threats. In January, a boycott of Danish goods began, followed by attacks on Danish embassies and assaults on Danish and Christian institutions all over the Middle East. By March, 139 people had died in the violence. The cartoons were tame by modern journalistic standards, but whatever one might think of them, no one could doubt that they were expressions of free speech. One would have expected Western institutions committed to Western values to support the publication and condemn the violence. But that’s not what happened. The Council of Europe condemned the Danish government for invoking “freedom of the press” in refusing to take action against the “insulting” cartoons. The day after the French newspaper France Soir published the cartoons, the managing director was fired. After several newspapers on the continent published the cartoons in a show of solidarity with Jyllands-Posten, British foreign secretary Jack Straw praised the British media for not publishing the cartoons and condemned the actions of the European publications as “disrespectful.” The American media was even more craven than the British. With the exception of the New York Post, not a single major American daily newspaper published the cartoons, even though they constituted one of the biggest news stories of the year. The editorial staff of the alternative weekly New York Press walked out after the paper’s publishers decided against printing the cartoons. More than 200 students at the University of California-Irvine protested — not against the West’s self-censorship, but against the decision of the college Republican Club to display the cartoons as part of a forum on terrorism. Former President Bill Clinton, out of office but continuing his presidential habit of apologizing for the West, condemned “these totally outrageous cartoons against Islam.” Even the Bush administration, whose foreign policy is based on the bold hope that Western values can flourish in the Middle East, betrayed those values in the face of the violence. “These cartoons are indeed offensive to the beliefs of Muslims,” State Department spokesman Justin Higgins told the press. “We all fully recognize and respect freedom of the press and expression, but it must be coupled with press responsibility.” There was no doubt what he meant by this coupling: When free expression provokes intolerant people to violence, a responsible press should choose silence. The Danish cartoon incident set a pattern. First, free speech on a controversial topic. Next, local and international Islamic protests, followed by threats of violence, followed by actual violence. Last, the West responds by deploring . . . the free speech. ATTACKING THE POPE Among those deploring the Danish publication was the Vatican. So there was a certain poetic justice to the reaction to Pope Benedict XVI’s September speech at the University of Regensburg, where he once taught theology, on the roles of reason and faith in the modern world. In the course of his speech, he referred to a statement made six centuries ago by a Byzantine emperor that Islam is a “faith spread by the sword.” The reference appeared in the context of Benedict’s argument that faith in God should comport with reason, and that forced conversion is wrong because it defies reason. Once again, protests, threats of violence, and acts of violence ensued. Sheikh Abubukar Hassan Malin of Somalia’s Supreme Islamic Courts Council urged Muslims “wherever you are to hunt down the pope for his barbaric statements as you have pursued Salman Rushdie, the enemy of Allah, who offended our religion. Whoever offends our Prophet Muhammad should be killed on the spot by the nearest Muslim.” Churches were firebombed in the West Bank and Gaza. In Somalia, gunmen killed an elderly Italian nun working at a children’s hospital. The New York Times editorialized: “[The pope] needs to offer a deep and persuasive apology, demonstrating that words can also heal.” But heal what? The Times implied that the pope, not the fundamentalists, was responsible for the violence, so the pope, not the fundamentalists, should take measures to heal the situation. The West seems to have absorbed the lesson of the heckler’s veto so well that it suppresses speech even before it hears the heckler. In September, the director of Deutsche Oper Berlin announced “with great regret” that she had decided to cancel the three-year-old production of Mozart’s “Idomeneo” after state security officials warned that it could generate dangerous reactions. The opera includes a scene in which King Idomeneo presents the severed heads not only of the Greek god of the sea, Poseidon, but also of Muhammad, Jesus, and Buddha. Kirsten Harms, director of the opera, justified the closure, saying that Berlin security officials had warned her that the production “in its originally produced form . . . poses an incalculable security risk to the public and employees.” She based her decision on “weighing artistic freedom and freedom of a theater . . . against the question of security for people’s lives.” And so, a city that braved 45 years of communist encirclement surrendered its artistic freedom before a single fatwa was announced or a single Molotov cocktail tossed. The unity that braced the West after 9/11 (when even the French declared “we are all Americans now”) has long since dissipated. We are bitterly divided over internal security policies, the war in Iraq, and the threat of a nuclear Iran. Disagreement is not necessarily a bad thing, especially in a society sure of its fundamental values. But certain issues should command consensus. One is that Western values are under assault. Another is that freedom of speech is a paramount value. In the face of threats of violence uttered by those who sincerely hate the West, there are many measures a free society can adopt. But the very worst course is to apologize to the haters for allowing freedom of speech. Apologizing, even when the speech is unsuppressed, sends the worst possible message. It says that our values are of such dubious merit that you are right to attack them because we ourselves are not sure we want to defend them. It wins no respect from the hecklers. It wins only their contempt.
Lawrence J. Siskind of San Francisco’s Harvey & Siskind specializes in intellectual property law. This commentary first appeared in The Recorder , an ALM publication in San Francisco.

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