We Are All Blasphemers: A Response to Eric Posner

Everyone is a blasphemer to someone.

I know it doesn't feel like it. I know it's hard for modern Americans to imagine going to jail (or worse) because of what you believe in your heart, but every single person reading this has a belief that in some part of the world or at some point in history could've gotten you arrested, beheaded, or burned at the stake.

Are you a Protestant? That was a burning offense.

Catholic? More of a beheading/hanging one.

Jewish? You get the idea.

And, of course, there are people like me, atheists, who are still considered heretics and (when we talk) blasphemers the world over. You can engage in blasphemy even without talking about religion. American political liberals—those of us who, for example, believe that same—sex couples have a right to get married—are considered blasphemers even by some in our own country.

But thankfully, we are incredibly lucky to live in a time and a place where we have largely decided that disagreements about faith (or lack of it) shouldn't get you in trouble with the law.

The reason why we as Americans can't legally be punished for our faith or for our beliefs is that our country was founded by people who sought to avoid the horrors of the religious wars that plagued Europe in the 16th and 17th centuries. The United States was founded with a brilliant and, frankly, quite radical set of ground rules for how to organize society. Included within these ground rules was the crucial right to speak freely. But arguably as critical as free speech were the rules actually mentioned first in the First Amendment: freedom of religion and freedom from state—mandated or defined religious beliefs.

These provisions allowed for religious pluralism, scientific and scholarly innovation, and prosperity unlike the world had ever seen before. But lately, it seems as though we've gotten so used to our First Amendment rights as a country that we take them for granted and forget the deadly serious reasons why we decided that these freedoms should serve as the building blocks for our society in the first place. Ironically, the institutions most likely to take free speech and/or other basic rights for granted in the United States are the institutions most reliant on free and open debate: our colleges and universities.

As I have reported for years in the Huffington Post and as I discuss at length in my forthcoming bookUnlearning Liberty: Campus Censorship and the End of American Debate, I have seen students on college campuses get in trouble for the mildest imaginable expression. In other cases, students suffer for their politically relevant, but locally unpopular, speech.

So it was no surprise to me that when the trailer for "Innocence of Muslims" debuted on YouTube and Islamic militants all over the globe began using it as an excuse to attack American embassies and kill our diplomats, the first prominent people to rise up and say "see, I told you we were wrong about free speech" were college professors.

First, there was professor Anthea Butler of the University of Pennsylvania who wrote an op—ed in USA Today arguing that Sam Bacile (the video's purported maker) should be thrown in jail.

Then, this week, similar criticism came from a much more serious source: University of Chicago law professor Eric Posner.

Posner, son of famous jurist Richard Posner of the United States Court of Appeals for the Seventh Circuit, wrote in Slate that Americans foolishly overvalue free speech and that the violence committed because of the video should cause us to reconsider our free speech radicalism.

For those of us who work in First Amendment law, Posner relies on pretty tired arguments that I plan to address piece by piece in upcoming posts. But before I get too entangled in the details of what was so wrong about Professor Posner had to say, it's important to take a step back and realize why punishing a citizen for offending a religion is so dangerous.

As I alluded to earlier, at our founding, the United States understood that nothing can more savagely divide people than a government that is allowed to pick a side in a battle of faith and to punish you for what you believe. In this case, it can be hard to see the value in that YouTube video and Posner claims it has none. But what the video is essentially saying is that "I don't think what your faith believes is true or even worthy of respect."

Now, saying that may seem like a harsh sentiment in our comfortable society, but we are quick to forget that all of us hold beliefs that are rejections of sacred cows of the past, present, or future. If you reject that women are unclean once a month, eat pork or beef, don't believe in the harm of "graven images," or think intervening angels are either real or a superstition, you are running afoul of some religious doctrine.

The brilliance of our system is that we placed freedom of speech, the free exercise of religion, and the freedom from established religion in the same clause. In one sentence, the Bill of Rights attempted to eliminate some of the most consistent reasons for particularly brutal bloodshed in human history.

It was a huge victory for genuine multiculturalism, diversity, religious tolerance, and pluralism. It is not generally considered a problem that everyone in our country does not agree on matters of faith. But if we start punishing people in the United States because they've offended the beliefs of people of other faiths, we will have put the United States government in the role of enforcer of a religious norm. Worse still, we will have put the United States government in the position of essentially encouraging violent reactions to speech by promising to punish blasphemers if, but only if, true believers are willing to actually get violent.

This is an obscene incentive that promises only more violence. No one should be more concerned about the rise of blasphemy laws in the United States than American Muslims. This fact was powerfully brought home to me by a student who came up to me after a speech I gave at Indiana University. He said he was extremely excited and in agreement with nearly everything I had to say about defending free speech on college campuses, but thought that surely we could agree that blasphemy should be punished.

By blasphemy, he meant speech that was offensive to Islam. I was floored by his belief that blasphemy could function as some small, manageable exception to our national guarantee of freedom of expression and belief.

When it comes down to it, the right to express your religious views or the right to have no religious views at all is the first freedom. In a sense, it even precedes the founding of our country because the compromises that led to the end of the religious wars in Europe necessarily included the ancient ancestor of what we know today as the right of private conscience.

But there was another reason why I was so stunned by this Muslim student's asking for blasphemy laws. He didn't seem to understand that America is a majority Christian country, and therefore not believing that Jesus is the son of God and instead believing that Mohammed is Allah's prophet is textbook blasphemy by majority standards.

He didn't seem to understand that any blasphemy law would be defined by the majority within the country who passed the law. (How else could it work?) He didn't understand that without the protections of the First Amendment, he would be far more likely to be found guilty of blasphemy than those he seemingly would have preferred to silence.

Instead of a law banning "blasphemy" as defined by the majority, what this student really needed was a special law that protected the rights of religious minorities to speak and believe whatever they wanted, free of interference from the state.

We already have such a law. It's the First Amendment.

Further, let's not fool ourselves about what's going on in these anti—U.S. protests all over the globe. As many commenters have said, the violence is not just about a YouTube video. It's also an attempt to make a statement. Religious fundamentalists in Islamic countries, just like religious fundamentalists throughout history, want to send a message to their own people: We don't want any Islamic Martin Luthers or, worse yet, Islamic Richard Dawkinses in our country, and you'd better not even consider trying to make waves, lest you be the next target of violence.

It's become easy for American academics, elites and contrarians to scoff at the universal values of freedom of speech, freedom of religion, and freedom from imposed beliefs. But while America may be almost alone as a nation in being relatively purist about these doctrines, this does not mean we are wrong. A nation and even a world where it's safe for people to believe as they choose—or not to believe at all—is one worth aspiring towards.