The contract of mutual respect

In the last couple of days the Guardian has carried opinion pieces by two eminent philosophers on the issue of the cartoons. They evidently agree that it was wrong to publish these. But otherwise there's an important difference. One of the two, Ronald Dworkin, sets out a robust defence of freedom of speech:

There is a real danger... that the decision of British media not to publish, though wise, will be wrongly taken as an endorsement of the widely held opinion that freedom of speech has limits, that it must be balanced against the virtues of multiculturalism, and that the government was right after all to propose that it be made a crime to publish anything "abusive or insulting" to a religious group. Freedom of speech is not just a special and distinctive emblem of western culture that might be generously abridged or qualified as a measure of respect for other cultures that reject it, the way a crescent or menorah might be added to a Christian religious display. Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be. Ridicule is a distinct kind of expression; its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended. That is why cartoons and other forms of ridicule have for centuries, even when illegal, been among the most important weapons of both noble and wicked political movements.

So in a democracy no one, however powerful or impotent, can have a right not to be insulted or offended...

Muslims who are outraged by the Danish cartoons point out that in several European countries it is a crime publicly to deny, as the president of Iran has denied, that the Holocaust ever took place. They say that western concern for free speech is therefore only self-serving hypocrisy, and they have a point. But of course the remedy is not to make the compromise of democratic legitimacy even greater than it already is but to work toward a new understanding of the European convention on human rights that would strike down the Holocaust-denial law and similar laws across Europe for what they are: violations of the freedom of speech that that convention demands.

The other article (free registration), by Onora O'Neill, doesn't offer a robust defence of freedom of speech:

It is standardly said that free speech must include a right to say things that are offensive or provocative, but not rights to defame, insult, let alone intimidate. These supposed distinctions are inevitably unclear because interpretations of speech acts vary with audiences. Danes might read the cartoons as no more than mildly provocative and offensive; many Muslims have read them as insulting and defamatory. If we think of speech as mere self-expression, we are likely to think that what has happened is in no way the responsibility of Jyllands-Posten or of Flemming Rose. But if we think of free speech as exercised in communicating with audiences, and remember that audiences vary greatly in the way they will read what is said and written, we may find reason to be more circumspect.

The distinctions between giving offence, on the one hand, and defamation, intimidation or incitement, on the other, no doubt do have their unclarities, but in democratic countries we deal with this difficulty through processes of law. Though law, of course, does not stand apart from the society it is supposed to regulate, it is not just the same thing as opinion - much less the same thing as the opinion of one or another section of the society in question. But O'Neill's argument risks making the distinction between giving offence and defamation (or worse) a matter to be adjudicated in the light of audience reaction, of the way different audiences 'will read what is said and written'. It is hard to see how an effective right of free speech could survive this test.

Let us hypothesize, as I briefly have once before, what I will now call a 'contract of mutual respect' - for trying to move beyond the kind of stand-off that we have lately witnessed. It would involve at least these two clauses: respect for the standard norm within liberal-democratic societies that people are free, within the constraints ruling out defamation and incitement, to think and say what they like, even if this mocks or offends against the beliefs of others (call this the free speech clause); and respect for other people and their right to find their own way, subject only to the limitation that they may not harm others, and even if their way involves them holding beliefs which seem misguided or wrong-headed or ridiculous to some or many of those who have found a different way (call this the civility clause). It is plain from the very formulation of the hypothetical contract that though it can work, and work well, in many circumstances, it is bound to generate frictions, because its two clauses can have mutually incompatible results. If the free speech clause permits you to mock my deeply held religious beliefs, then these may sometimes be mocked even if most people most of the time do not mock them; and if my deeply held religious beliefs include the notion that a certain type of speech act by you is in itself a disrespect to my religion and thereby an incivility to me and my co-believers, then the civility clause requires that that mockery should not take place. Where this kind of conflict arises - as, to repeat, it widely should not where there is a social will to abide by a 'contract of mutual respect' - there are not two ways out of the impasse; there's only one. Dworkin is clear that the free speech clause should prevail. O'Neill is rather less clear about this.

But in any case, both Dworkin and O'Neill attempt a resolution of the tension here within the spirit of a recognizable liberalism. This is more than can be said for Stanley Fish in the New York Times. According to him:

The first tenet of the liberal religion is that everything (at least in the realm of expression and ideas) is to be permitted, but nothing is to be taken seriously. This is managed by the familiar distinction - implied in the First Amendment's religion clause - between the public and private spheres. It is in the private sphere - the personal spaces of the heart, the home and the house of worship - that one's religious views are allowed full sway and dictate behavior.

That nothing is to be taken seriously is a travesty of historical liberalism - though it does apply to a certain light-minded postmodern relativism. But if you read on you will see that what, for Fish, counts as taking a view seriously is that you adopt it and live it as your own, implement it as policy, and so forth. Otherwise the much-vaunted respect is merely a form of 'condescension'. It's a rather demanding criterion of the notion of 'taking seriously'. And the practical implication of Fish's view? Who knows? On the one hand, there's the faith of liberalism, calling smugly for dialogue. On the other hand, there are other faiths:

[A] firm adherent of a comprehensive religion doesn't want dialogue about his beliefs; he wants those beliefs to prevail. Dialogue is not a tenet in his creed, and invoking it is unlikely to do anything but further persuade him that you have missed the point - as, indeed, you are pledged to do, so long as liberalism is the name of your faith.

Once you've seen the adherent's point there is no problem, I guess, since you now know that he wants his beliefs to prevail. Why didn't anyone else think of this? He wants his to, you want yours to, we want ours to, they want theirs to. Brilliant Stanley Fish. I suppose one should give him credit for not fudging the issue that some partisans of 'the middle way' prefer not to face: namely, that there is a type of religious outlook not amenable to liberal compromise or dialogue. But in terms of saying anything of practical value, of suggesting how one might proceed where these conflicts arise, Fish's article is comprehensively useless.