Free speech isn’t free with a carveout for blasphemy: Part 12 of answers to bad arguments against free speech from Nadine Strossen and Greg Lukianoff

In May 2021, I published a list of “Answers to 12 Bad Anti-Free Speech Arguments” with our friends over at Areo. The great Nadine Strossen — former president of the ACLU from 1991 to 2008, and one of the foremost experts on freedom of speech alive today — saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. My answers, when applicable, appear below hers.

In this series:

• Part 1: Free speech does not equal violence
• Part 2: Free speech is for everyone
• Part 3: Hate speech laws backfire
• Part 4: Free speech is bigger than the First Amendment
• Part 5: You can shout ‘fire’ in a burning theater
• Part 6: Is free speech outdated?
• Part 7: Does free speech assume words are harmless?
• Part 8: Is free speech just a conservative talking point?
• Part 9: Free speech fosters cultural diversity
• Part 10: Why 'civility' should not trump free expression
• Part 11: ‘New’ justifications for censorship are never really new
• Part 12: Free speech isn’t free with a carveout for blasphemy
• Part 13: Does free speech lead inevitably to truth?
• Part 14: Shouting down speakers is mob censorship
• Part 15: Is counterspeech the best answer to bad speech?
• Part 16: Would censorship have stopped the rise of the Nazis?

Assertion: I believe in free speech, but not for blasphemy. 

Nadine Strossen: “Blasphemy” is the stigmatizing term for expression that contradicts a prevailing religious orthodoxy. It is diametrically inconsistent with the “viewpoint neutrality” principle, which the Supreme Court has hailed as “the bedrock” of our free speech system:  Government must remain neutral concerning the viewpoints or ideas that individuals convey through their speech, never suppressing any speech solely due to disapproval of the views expressed. Blasphemy is also diametrically inconsistent with the parallel “non-endorsement” principle that undergirds the First Amendment’s religious liberty guarantees: that government may not endorse any religious belief.  

In both contexts, the unifying notion is that ideas and beliefs are for individuals to formulate and espouse on their own, as matters of their freedom of conscience, without government coercion or interference. As the Supreme Court eloquently declared in its landmark 1943 decision in West Virginia Board of Education v. Barnette:  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 

Not only are restrictions on blasphemy antithetical to individual freedom; they are also antithetical to democracy and the search for truth. As the philosopher George Bernard Shaw observed, “All great truths begin as blasphemies.” His observation applies to all spheres of human endeavor, including natural science and government. In a democracy, where “We the People” wield sovereign power, we must be free to air and discuss all perspectives on matters of public concern — even perspectives that some religions regard as blasphemous. Many religions propound doctrine concerning matters of public concern, including abortion and vaccinations — to cite two very current examples. If members of the public and government officials were barred from advocating certain policies on such matters because those policies were inconsistent with some religious dogma, we would be living in a theocracy, not a democracy. 

Blasphemy laws are disproportionately enforced to silence dissent and persecute minorities.

Along with other censorial laws, blasphemy laws are disproportionately enforced to silence dissent and persecute minorities. In Pakistan, for example, blasphemy laws are regularly enforced against members of the Hindu minority. In a shocking recent example, in August 2021, an 8-year-old Hindu boy was charged with blasphemy — a capital offense — because he urinated on a carpet in the library of a madrassa (a college for Islamic instruction). Even in modern democratic countries, various laws, including those targeting “hate speech,” have functioned as anti-blasphemy laws, because they are used to punish expression that is deemed insulting to religious beliefs. For example, Italian comedian Sabina Guzzanti was subject to criminal investigation in 2008, facing a potential five-year prison sentence, for joking at a rally that Pope Benedict XVI would go to hell and be tormented by gay demons. And Britain, like Pakistan, subjected a minor to such laws; in 2008, a 15-year-old British boy was criminally charged and investigated for holding up a sign at a demonstration declaring, “Scientology is not a religion, it is a dangerous cult.”

In recent years, the following argument has been raised for banning particular blasphemous speech: that it is likely to trigger a violent response by offended religious believers. This argument arose in the aftermath of the “Danish cartoons controversy” that arose from the 2005 publication of cartoons depicting the prophet Muhammad, which was followed by violent riots and associated deaths in several Muslim countries.  

In 2012, the U.S. was pressured to censor an online video that was widely criticized as anti-Islamic and was blamed (wrongly, as it later turned out) for having spurred the murderous attack on the U.S. Embassy in Benghazi, Libya. In a speech to the U.N. General Assembly shortly after this terrorist attack, President Barack Obama not only laid out the principled reasons why the expression at issue should not be censored; he also explained the practical, strategic reasons why such censorship would undermine the goal of preventing violence:  

There are no words that excuse the killing of innocents... In this modern world with modern technologies, for us to respond in [a censorial] way to hateful speech empowers any individual who engages in such speech to create chaos around the world. We empower the worst of us if that’s how we respond. 

A 2017 petition to the Danish Parliament, calling for the repeal of Denmark’s blasphemy law — which was subsequently repealed — well summarized the wrongheadedness of suppressing blasphemy for the purpose of preventing responsive violence by those who object to it: “In a liberal democracy, laws protect those who offend from threats, not those who threaten from being offended.”

Greg Lukianoff:  My best answer to this argument is the entirety of my 2012 Huffington Post article, “We Are All Blasphemers.” I wrote the piece in response to a number of arguments coming out of the academy that the film “The Innocence of Muslims” illustrates why we need broader restraints on speech, pointing to the mass outrage and violence that occurred in response to the film.

To summarize, everyone — literally every person reading this article — is a blasphemer to someone else. Whether you’re a Catholic, Protestant, Jew, Muslim, Sikh, Hindu, Buddhist, or — like me — an atheist, you hold some belief that would get you jailed or killed somewhere in the world today, or at some point in recent history. Modern Americans are very fortunate to live in a time and place where the government can’t punish you on the basis of what god you believe in or don’t believe in.

This isn’t an accident: The founders of our country intended to avoid the kinds of religious wars and persecutions that were endemic to Europe in the 1500s and 1600s. The First Amendment’s guarantee of freedom to practice any faith and be free from the coercion of a state-established religion was quite radical for its time. Just a few words in the Bill of Rights mitigated one of the biggest drivers of bloodshed in history and helped enable unprecedented scientific and scholarly advancement.

Just a few words in the Bill of Rights mitigated one of the biggest drivers of bloodshed in history.

Those who argue for enforcement of blasphemy laws may not realize it, but they’re asking for the government to enforce the norms of a religion. Moreover, if we punish blasphemy that “provokes” a violent response, as some suggested in the wake of “The Innocence of Muslims,” we create a dangerous incentive for individuals to respond violently to the blasphemy they’d like to see censored.

Over a decade ago, after I gave a speech at Indiana University, a Muslim student approached me and told me he agreed with nearly everything I had said about free speech, but that, surely, I must agree that blasphemy is an exception to free speech that should be punished (specifically, he meant speech offensive to Muslims).

I was shocked. Despite the fact that this is a majority-Christian nation, he did not seem to understand that many of his religion’s beliefs — including that Jesus was merely a prophet and not himself divine — would be blasphemy to the majority, and that he was likely to be prosecuted for blasphemy before anyone who defied Islamic precepts.

Rather than a prohibition on blasphemy, what would protect this student is a law that protects the rights of religious minorities — like Muslims — to practice their beliefs, free from the imposition of the faith of the majority.

Indeed, this law already exists: It’s called the First Amendment.

Coda: If you have any doubt about the recurrent allure of blasphemy laws, look no further than last week’s edition of Newsweek, in which Turning Point USA founder Charlie Kirk argues his way, unknowingly, into a blasphemy exception to the First Amendment. What caused Kirk to draw the line? The not-fake-at-all plague of Texas Satanists! Yes, and while Kirk acknowledges that these Satanists explicitly state that they are atheists who don’t actually worship Satan, he nonetheless thinks their speech should not be protected because it’s…well, really, really bad, in his opinion. He even claims that the founding fathers would agree. But the founding fathers were no strangers to rhetoric explicitly designed to trigger their pious opponents. Indeed, Thomas Paine and Benjamin Franklin probably would’ve been tickled by this group of atheists’ transparent ploy to mess with people who would curtail liberty in the name of religion.