Why Free Speech is a Liberal Myth... But Muslims Should Play Along

Why Free Speech is a Liberal Myth... But Muslims Should Play Along

Musings on the Recent Quran-Burning in Sweden

By: Javad T. Hashmi

I used to be a free speech absolutist. I chanted all the same mantras that good liberals do. For example, I echoed the remark incorrectly ascribed to Voltaire (d. 1778), “I disapprove of what you say, but I will defend to the death your right to say it.” And, of course, I agreed with the adage put forward by Supreme Court Justice Louis Brandeis (d. 1941): “the remedy [for harmful speech] is more speech.” Undergirding all of this was the near religious trust in the so-called Marketplace of Ideas, or the belief that good ideas would win out in the long run and that they would eventually beat out harmful and hateful ones.

Given that these mantras are well-accepted and taken for granted in my home country, the United States of America, there is hardly anything special or unique about my (former?) endorsement of them. However, what set me apart, perhaps, and made me useful to liberals — and to the liberal project — was my unique positionality as a Muslim. As a Muslim liberal — then both religiously and philosophically — I was one of the few who promised to complicate views of “Islamic exceptionalism,” or the idea that Islam is somehow uniquely unsuited to the liberal and democratic enterprise. I was, in other words, the Good Muslim, an example to herald to the benighted Muslims of the world, wallowing in the depths of their medieval backwardness.

As a scholar of religion, I forcefully reject any theses of Islamic exceptionalism. I have studied religions and religious traditions for far too long and in far too much depth not to realize how malleable and dynamic they truly are, internally diverse and ever-responsive to change based on social, political, and historical contexts. I also know what Judaism and Christianity looked like not too long ago and how rapidly they were transformed by the juggernaut of modernity.

When it comes to ideas of free speech, the truth is that the Quran is full of ammunition for the liberal Muslim seeking to make his (or her) case. When Muhammad declared his prophetic mission, he was roundly rejected by the Arabian pagans around him. His early community of followers slinked in the shadows for some years and then faced severe persecution when they finally declared their views publicly. Although historical-critical scholars are wary of the traditional sources narrating the Prophet’s life story, we can safely say that the Prophet’s followers were forced to flee their native city (perhaps two or three times). Religious persecution (fitna) came to be a central feature of the founding moment of what would eventually come to be called Islam.

Given this context, it is perhaps not surprising that the Quran is full of verses calling to religious freedom and condemning religious coercion. The Quran (2:256) bellows, “Let there be no compulsion in religion. Truth stands out clearly from error.” The Quranic theology disallows religious coercion, on the grounds that religion is a matter of the heart (and thus inaccessible to any other than God himself). According to the Quran, it is God’s will that religious diversity exists, so how can we human beings seek to circumvent this divine decree? “And had your Lord willed,” the Quran (10:99) declares, “all those who are on earth would have believed all together. Would you then compel men till they become believers?”

For the liberal Muslim, it is easy to see in the Quranic rhetoric a strong Lockean element. (Or, perhaps chronologically speaking, we should say that there is a strong Quranic element in the Lockean rhetoric.) John Locke (d. 1704), considered by some to be the founder of liberalism, famously argued for religious toleration and freedom of religion in A Letter Concerning Toleration (1689). One of his key arguments could almost seem to be inspired by the Quran:

"Though if infidels were to be converted by force, if those that are either blind or obstinate were to be drawn off from their errors by armed soldiers, we know very well that it was much more easy for Him [i.e. God] to do it with armies of heavenly legions than for any son of the Church, how potent soever, with all his dragoons."

There are many other Quranic passages that could be further invoked here but suffice to conclude with the seemingly unambiguous verse: “Unto you your religion and unto me my religion” (Q 109:6). Needless to say — and contrary to the advocates of Islamic exceptionalism (whether of the non-Muslim or fundamentalist persuasion) — there is plenty from the wellspring of revelation for the Muslim liberal to draw from.

If liberal Western thought is any indication, the freedom of religious belief is the launching pad for a wider and more robust conception of freedom(s). Quite simply, religious belief is the toughest case for the believer, so that if religious freedom is granted, everything else besides that is considered less contentious and flows downstream from it. In other words, if you can allow your fellow citizen the right to blasphemy against God, then anything less than that could also be tolerated.

When it comes to free speech — including the toughest case (at least for the believer) of blasphemy — there is also much in the Quran that the Muslim liberal can cite for a robust scriptural defense. The Quran actually seems to presuppose that prophets and believers will be maligned, abused, vilified, and mocked by their detractors. Far from being a modern secular occurrence, the Quran takes this for granted and considers it part of the burdens of prophethood: “Verily,” the Quran (21:41) reassures Muhammad, “messengers were mocked before you.” He is told to “bear patiently” (Q 6:34) the insults and injuries of his detractors. Indeed, facing such barbs with dignity, grace, and steadfastness is considered by the Quran to be spiritual- and character-building.

Although medieval Islamic empires would go on to institute laws against apostasy, blasphemy, and heresy, these are noticeably absent from the Quran. Surveying the early Syriac material, Stanford historian Michael Penn finds no evidence of laws of apostasy in early Islam. This corroborates what another historian of Islam, Patricia Crone, concludes in her essay on the Quranic verse (2:256), “Let there be no compulsion”: “Both Christianity and Islam began as freely chosen systems of belief” she writes. Ironically, medieval Muslims were likely influenced by Christian Roman law, which criminalized apostasy and equated it to treason. (It is ironic because Muslim liberals are often accused by their conservative co-religionists of being influenced by Western ideals. Ironic as well since many Christians today consider these “barbaric” laws to be distinctly Islamic.)

Coming back to the Quran, what we find is that nowhere does it say to respond to insult and mockery with violent reprisal. Instead, the Quran (25:63) declares, “The servants of the Merciful are those who walk humbly upon the earth, and when the ignorant address them [with insulting words], respond, ‘Peace.’” And elsewhere, the Quran (7:199-200) cautions:

"Take to pardoning, and enjoin right, and turn away from the ignorant [who assail your religion]. And should temptation from Satan provoke you [to respond aggressively], seek refuge in God."

There are, of course, other verses and passages that have a less amicable and more bellicose ring to them. However, Muslim liberals have long argued that these justify fighting in self-defense only. (In fact, my own dissertation work seeks to buttress this reading, which I find to be intuitive and even obvious.)

On the other hand, the Hadith canon — considered by conservative Muslims to be a second scripture alongside the Quran — is another story altogether; this is where laws against apostasy, blasphemy, and heresy are justified (and back-projected onto the Prophet). However, not only is the Hadith full of conflicting and contradictory viewpoints, liberal Muslims tend to be cautious or skeptical towards the authenticity of the Hadith (a view shared by historical-critical scholarship).

In sum, there is plenty within our sacred text to convince Muslims today to embrace religious freedom as well as free speech… and to decry blasphemy laws. Contrary to the naysayers and advocates of the Islamic exceptionalists, the religious argument is not terribly difficult to make. Indeed, Islamic modernists since the nineteenth-century have been making this case, long before blasphemy laws had completely disappeared from Western countries.

I trace my own religious intellectual trajectory to Sayyid Ahmad Khan (d. 1898), an Islamic reformer who galvanized an entire movement of modernization after him. Khan was obviously impressed with John Stuart Mill (d. 1873) and defended a robust conception of freedom of opinion, writing in Tahzib al-Akhlaq (vol. 1, no. 6): “No reform can ever come to pass until and unless freedom of opinion is established.” It was so key to his reform project that Khan dedicated an entire treatise to the subject. Sayyid Ahmad Khan was a beneficiary of the freedom of speech that the British brought to India (along with, of course, the great harms of colonialism). This allowed religious reformers like himself to articulate their ideas without fear of violent reprisals from reactionaries and extremists from amongst his co-religionists.

Yet, notwithstanding grandiose claims of “free speech” doctrine, the British themselves censored speech. Amidst severe communal tensions between Hindus and Muslims, the British passed legislation that prohibited “deliberate and malicious” words meant to cause “outrag[e] [of] the religious feelings of any class [of citizens], insults, or attempts to insult the religion or the religious beliefs of that class.” It was not considered politically expedient to have communal riots break out under divisive British rule. And, of course, there were laws against libel and sedition, the latter of which severely curtailed free speech in dissent of empire.

From the time of Sayyid Ahmad Khan to the present, Muslim liberals (like myself) have argued against their reactionary and conservative co-religionists in defense of free speech in Islam. Yet, there is at the same time the undeniable (but often denied) historical fact that free speech has never truly existed. It is a chimera. A liberal facade. It does not, and cannot, exist — except, of course, in the imagination of liberal minds. Instead of dealing with the historical record and realities, liberals have a tendency to discuss societies and laws in thought experiments and on the back of napkins, so to speak.

As Aria Nakissa, the formidable anti-liberal thinker and professor of anthropology and Islamic studies has cogently argued, Western colonial powers have always used the law of emergency in order to circumvent free speech. “Liberalism,” opines Nakissa, “is about free speech for white liberals and everyone else needs to be shut down based on accusations of terrorism and extremism.” Nakissa then lists a long record of colonial policy towards subject populations, in which free speech was always heavily curtailed on the basis of anti-sedition and other emergency laws.

Liberals would, of course, want to claim that these were mere aberrations or blemishes in the history of liberalism — simply a failure to live up to the lofty ideals of liberalism. In their mind, these were actions by bad liberals and the solution to this problem is simply more liberalism, a purer form of liberalism. However, I am no longer convinced of this. Instead, it seems that this problem is a feature of liberalism, not a bug. Indeed, it is inbuilt in liberalism and baked into its very fabric.

John Rawls (d. 2002), one of the most influential articulators of liberalism, implies that intolerant religions “will cease to exist in the well-ordered society of political liberalism.” In other words, illiberal religions — which thus includes all traditional religions — cannot be tolerated in liberal societies. This is the actual paradox of liberal toleration: liberalism, like any other ideology (or religion), has a hard time accepting anything other than itself (or its mirror). Imagine, for instance, if a Muslim said they can accept any religion so long as it is Islam or any other religion sufficiently Islamicized.

As for free speech, liberal societies have never really tolerated anti-liberal talk when it threatens to topple the liberal regime. How could it? When anything threatens the liberal system, laws of emergency are called, emergency powers extended, exceptions made for the curtailment of speech. Some would argue that liberal societies, in fact, work more efficiently at manufacturing consent than do authoritarian states, given that they use information technology and mass surveillance. Wael Hallaq, another anti-liberal thinker and professor of Islamic studies, argues (correctly) that no pre-modern Islamic state could have ever dreamed of the sweeping centralized governmental powers that modern, post-Westphalian nation-states boast.

In today’s day and age, government agencies have deep access to a citizen’s internet usage and social media presence. Americans can quickly understand the linkage between free speech and privacy when they look at Middle Eastern or Asian countries’ surveillance of their citizens, but somehow we remain oblivious (or uncaring) about the threat posed by our own government in this regard. The lack of privacy chills free speech, even of free thought.

Coming to the issue of social media, we see how chimerical free speech really is. Legal scholar and philosopher Stanley Fish, author of There’s No Such Thing as Free Speech: And It’s a Good Thing, opens up his recent book on hate speech by recounting Mark Zuckerberg’s predicament. On the one hand, Zuckerberg self-identifies as a free speech advocate; on the other hand, he cannot allow his platform, Facebook, to be overrun by nefarious actors. Fish writes:

"A few weeks later [Zuckerberg] had apparently migrated from the giving-everyone-a-voice side, where he had originally positioned himself, to the keeping-the-community-safe side."

Facebook subsequently moved to “cancel” conspiracy theorist Alex Jones and his website InfoWars “because,” writes Fish, “the company announced, they violated ‘Community Standards,’ words capitalized in order, perhaps, to deflect attention from the obviously local and subjective nature of these standards.”

In a more recent example, we have an even louder proponent of free speech who faced a similar situation: Elon Musk. Like my previous self, Musk calls himself a “free speech absolutist.” So, did he allow absolute freedom of speech on Twitter as he promised? In fact, even though Musk unbanned some people, other bans remained; still others were newly instituted. Twitter re-banned white nationalist Nick Fuentes, for example, with Musk now opining that he does not want this social media platform to become “a free-for-all hellscape, where anything can be said with no consequences.” What then of the absolute free speech Musk promised?

Musk also banned Twitter accounts that revealed his personal location (or, more precisely, accounts that track his private jet), claiming of course that this violates “the rules,” which always remain intentionally nebulous. But isn’t this free speech? Of course, even in the United States it is widely accepted that one is not free to yell “fire” in a crowded theater if there is not really a fire. Musk is trying to extend this logic to include his own perceived personal safety here. So, how do we square these circles?

This is where the philosophical literature is helpful. Prior to acquainting myself with this material, I was content (and feeling good about myself) endorsing free speech as a proud “free speech absolutist.” I would reassure my Muslim friends that the proper response to hate speech against Islam was more (good) speech (in defense of Islam). Now, after reading careful philosophical writing on the topic, I am not so sure the answer is so easy.

In fact, Stanley Fish has convincingly argued that there is no such thing as free speech; in other words, any free speech doctrine is incoherent and impossible to defend. The reason, he argues, is that the line between speech and action is unclear. We can take the example of the Musk jet trackers. Though they think that they are merely expressing their free speech, Musk considers them to have crossed the line into action; their actions allow people to stalk Musk and threaten his safety.

There is no way to create a sharp dividing line between speech and action. The courts have recognized, for example, flag burning — something that can be done without uttering a single word — as a protected expression of speech, i.e. expressive conduct. Meanwhile, calling for the assassination of the president — or uttering words encouraging the overthrow of the government — would be considered an act of treason and punishable by the law.

As Fish explains, this ambiguity in free speech doctrine goes all the way back to “John Stuart Mill in On Liberty (the theoretical fountainhead of modern-speech doctrine) [where he] distinguished between language vilifying corn-dealers as a class in the press—that’s just talk—and rehearsing that same language ‘to an excited mob assembled before the house of a corn-dealer’: that’s intimidation.”

We don’t have to think too far back for a contemporary example: was Donald Trump’s impassioned speech to his frenzied supporters protected free speech or did it, instead, constitute a call to action? The answer to this question usually hinges on whether or not you like Trump or not. If you like Trump, then you say it was speech and thus protected; if you detest Trump and consider him a danger to democracy, then you likely consider what he said to be incitement to violence and insurrection (i.e. “fighting words”) and thus punishable (or at least ban-worthy).

The truth is that we most often use the label “free speech” when it comes to speech that we agree with, or at least speech that we are not too bothered by. (It’s the latter attitude, as we shall see, that allows many liberal elites the luxury of decrying Quran-burnings and racist cartoons even as they “defend to the death” these as part of free speech.) However, speech that offends the core of our being and threatens what we hold most dear, this we seek to push into the category of action that can then be curtailed or proscribed altogether.

It is fairly easy to illustrate this point. Recently, the Florida state legislature adopted a law called the “Stop W.O.K.E. Act,” also known as the Individual Freedom Act (IFA). The law, supported by conservatives, seeks to prohibit instructors from teaching certain key concepts related to race. On the one hand, progressive opponents claim that the law infringes upon the free speech of the teachers. On the other hand, supporters of the law argue that “compelling” students to sit through such discussions would constitute an infringement of their rights (and that of their parents). Opponents of the law see this as a free speech issue; supporters consider the problem to be compelled action. If we were to modify the situation and imagine a law that banned instructors from teaching about the medical dangers of abortion, would we really be surprised when conservatives and progressives flipped sides?

Selective outrage over free speech is an almost daily occurrence. Many right-wingers decried the Hamline professor being released from her job for showing a painting of the Prophet Muhammad; “free speech!” they yelled at the top of their lungs. (To be clear, the organization I work for, the Muslim Public Affairs Council, MPAC, also came to the swift defense of the professor.) On the other hand, many right-wingers were silent over Harvard rescinding its fellowship to Kenneth Roth over his political views. (Again, MPAC spoke out against this incident as well.)

Is it really possible to just be principled about free speech and allow it across the board? Was I not just implying that MPAC did exactly that in the two situations described above? Maybe. But I am not so sure. The reality is that I do not think our organization would have come so quickly to the defense of the professor had she shown an Islamophobic cartoon of the Prophet Muhammad and if she had done so in order to cause offense to the Muslim students in her class.

How many people do you think would have come to the professor’s defense if she had approvingly shown blatantly Antisemitic cartoons or Neo-Nazi materials? What about if she had created a slideshow of racialized images of black people or come to class in black face? What if she came in, stood on top of the desk, and gave a thirty minute speech about the medical dangers of homosexuality? The point is that very few “free speech absolutists” would extend to this professor an unconditional right to say whatever she wants. So, what then of this mythical free speech?

Another area of great elasticity that people exploit in order to defend free speech selectively is to claim either a narrow or expansive view as needed. Allow me to give an example to illustrate this point. When Twitter banned Donald Trump, many conservatives decried this violation of “free speech.” Meanwhile, progressives defended Twitter by claiming that the platform is a private company: “the First Amendment only applies to the government!” Yet, when Elon Musk took over Twitter, suddenly it was the progressives decrying “free speech” when he allegedly started banning or shadow banning several progressive-leaning outlets. The conservative voices were, of course, suddenly silent.

Stanley Fish makes the further point that there really is no free speech if we are taking a narrow view based on the First Amendment; if censorship is to be allowed on every other level except the state, what free speech is left? Social media platforms are now a part of our day-to-day lives and operate like utility companies. Again, this becomes clear if we imagine repressive “regimes” abroad banning Facebook and Twitter. (We have governments; they have regimes.) Are we suddenly alright with the same sort of censorship if it is the tech giants themselves that do it? With the alliance between government lobbyists and big business (and big tech), are we really so sure that the two situations are wholly different?

The truth is that our speech is controlled and censored almost everywhere. We are not free to say whatever we want at work; in fact, our employers can and often do fire us for what we do outside of the office. How many times has someone been fired for going on a racist drunk diatribe that was videotaped and had the good/bad fortune of being put up on YouTube? Often, people can be fired simply for their political views.

Almost everywhere we go — whether it is the university, community center, movie theater, shopping mall, or opera — there are written and unwritten rules and regulations governing our speech. Curtailment of speech is the norm; free speech is the rare exception. Fish convincingly argues that really the only times you have absolute free speech is when your speech is completely inconsequential: “The obvious (and perhaps the only) example is the Hyde Park corner or some equivalent ‘free-speech zone’—a place designated to the production of speech that is insulated from both seriousness and consequences.” Hyde Park is, incidentally, where many fundamentalist apologists engage in heated but useless polemics against each other; polite society, on the other hand, could not tolerate such unbecoming and damaging behavior.

When a lawyer colleague of mine reviewed this essay, he worried that I was constructing a strawman: no American scholar of jurisprudence, he informed me, would take such a naive view of free speech. Indeed, the very purpose of the law is to determine what the limits of free speech are. But, to me, this underscores the very point I am trying to make. In spite of the fact that serious philosophers and scholars would not propagate “free speech absolutist” ideology, I fear that this is often the norm in public discourse (especially when Muslims are at the receiving end of this discourse). Furthermore, even amongst scholars of jurisprudence I wonder how many of them really appreciate the social constructivist aspect of their work whereby they create, as opposed to merely describe, the dividing line between speech and action.

Quite simply, free speech absolutism is a fiction that could never work. It would mean that blatantly open Al-Qaeda and ISIS sympathizers could freely operate on social media sites and churn out YouTube content. Can they? Certainly not. Even if they were allowed to put their content up, government agencies would surveil them and likely seek to conduct a sting operation on them, or at least close them down. The reality is that no government, liberal or otherwise, would allow such subversive “speech” to exist and operate without serious repercussions.

Again, I ask: what of free speech?

* * *

What does any of this have to do with Quran-burning, you might be asking? It has everything to do with it, of course. When Western leaders and pundits insist on Quran-burning (or cartoons of the Prophet Muhammad) as the epitome of free speech, and cast all this as part of a civilizational battle between the free secular West and the regressive Islamic world, we should well know and appreciate their great selectivity and bias at work here.

Muslims have long pointed out this double standard. A majority of European countries (and Canada) have laws against Holocaust denial. The reality is that free speech is always tied to power. Throughout most of the twentieth-century, Jews were a marginalized group and faced severe, institutionalized Antisemitism; they could not have imagined any such protections or considerations. Indeed, it is well-known that German Jews lived in an environment saturated with Antisemitic speech and posters, well before the Holocaust. (The Holocaust can be seen as a development of this propaganda, speech turned into action.)

Following World War II, however, Jews have thrived in the West and have largely been amalgamated into whiteness. This does not mean that Antisemitism does not exist in some of these European countries, but it usually exists on the margins; those in positions of governmental power and in elite circles do not usually countenance such Antisemitism. Most importantly, Jews can feel fully European.

Columbia professor Joseph Massad has convincingly argued that the New Antisemitism is actually geared towards Arabs. He traces the origins of Antisemitism, which initially targeted both Jews and Arabs (i.e. “Semites”) as the Other to Europe; Jews were the inside Other and Arabs the outside Other (i.e. just outside the walls of Europe). Once Jews were amalgamated into whiteness, this left Arabs (Arab Muslims, to be specific) as the remaining Other. With “mass migration” to Europe, the Arab has now become the outside and inside Other. As such, free speech is now at the Arab or Muslim’s expense. Aria Nakissa is, therefore, correct when he says that free speech is the preserve of “white liberals” (liberal here understood in its wider philosophical sense).

Free speech is always tied to power. There is a power gradient. If you are in a position of power, then you can declare certain speech to be exceptionally dangerous and worthy of censorship. If you are in a position of relative weakness, then free speech comes at your expense. This is the only way to understand the reason why Holocaust denial is censored in so many countries and Quran-burning would suddenly become the symbol of free speech. It is easy to champion a cause when it is at the expense of a weaker party. Can anyone imagine a Swedish prime minister defending the importance of free speech in relation to Holocaust denial and Antisemitism?

The myth of free speech is exacerbated by the fact that many Americans imagine that the rest of the “civilized world” is like them when it comes to this issue. However, the reality is that the United States is virtually exceptional when it comes to free speech legislation. Most other developed countries have laws curtailing hate speech.

Most Americans cannot countenance hate speech laws — and I was one of them. In fact, I had supposed that hate speech laws were simply an exception. In fact, however, they are the norm; the United States is the exceptional case. Of course, the U.S. is able to be such an exception because of how severe the social and financial repercussions are for hate speech. Someone who is caught using blatantly racist or Antisemitic language will face severe social and financial consequences; such a person will often become a social pariah. Whereas there may exist free speech on one level, on another level the consequences of such speech are very costly.

From this perspective, many Muslims like myself simply want equal treatment. The organization I work for, the Muslim Public Affairs Council, believes that polite society should not tolerate hateful speech against Islam and Muslims, i.e. Islamophobia, just as it would not accept racist or Antisemitic rhetoric. We, of course, understand that the law in the United States protects such speech but simply wish there to be the same social and financial consequences as exist for other groups targeted in this way.

On the other hand, in other developed countries — including Sweden! — there exist hate speech laws. On this basis, the Swedish prime minister’s statement: “freedom of expression is a fundamental part of democracy” seems hypocritical and part of a double standard. If the targeted community had not been a marginalized and much-maligned group, i.e. Muslims, perhaps Quran-burning in front of an embassy would have been considered hate speech.

Of course, this begs the question: should hate laws even exist? My previous self would have recoiled at even the thought, so thorough the liberal programming was. Now, however, I am not so sure. After much soul searching, I have moved from a liberal to a post-liberal direction; I am not, however, an anti-liberal. I still hold certain key liberal values to be essential and I appreciate the important gains in human, civil, and women’s rights, all of which liberalism has heralded. The formal end of slavery alone is enough of an achievement in my mind to counter the ideologies (and theologies) of anti-liberal traditionalists who wish to wind back the clock.

And yet, I — like several others who have moved into the post-liberal camp — have realized that the excessive liberal focus on individualism and autonomy has led to a loss in overall societal well-being. Contrary to liberal mythology, human beings were not dropped onto this earth as fully rational, disembodied, and detached human beings who then entered from the state of nature into a social contract with one another.

Contrary to the liberal image of the world, we are all born naked, crying, and helpless, literally connected by an umbilical cord to our mothers. We are raised by our parents and family — who we did not choose or opt into — and we have duties to them. Post-liberals seek to balance the needs and rights of the individual with that of the family and society. Unlike the liberal system where liberty is the ultimate value that trumps all others, liberty is understood as one important value amongst several others; societal well-being or flourishing is equally important. Religion, tradition, and culture are important to preserve in order to maintain this societal well-being. In a purely liberal-libertarian model, hate speech is the right of the individual and thus must be protected. According to a post-liberal view, however, it makes sense to promote the value of free speech but also to limit certain obviously harmful forms of speech.

To a diehard liberal-libertarian, censoring hate speech means the end of free speech. There cannot be one without the other. This is expressed forcefully by journalist Glenn Greenwald; in his view, the doctrine of free speech is meant to protect “exactly those political ideas that are the most offensive, most provocative, and most designed to inspire others to act in the name of its viewpoints.” The standard example is the Skokie case, in which the American Civil Liberties Union (ACLU) came to the defense of Neo-Nazis who intended to march through neighborhoods populated by Holocaust survivors. Greenwald and the ACLU can morally condemn such speech but “defend to the death” the right of those people to say it; that, at least, is the rhetoric.

Jeremy Waldron, himself a liberal philosopher, makes a good case against such religious devotion to the doctrine of free speech. He points out that it is easy for white liberals like Greenwald to comfortably chant, “I hate what you say but I will defend to the death your right to say it.” But, argues Waldron, we really should be asking the marginalized groups who are being targeted how they feel about this sort of speech:

"The costs of hate speech… are not spread evenly across the community that is supposed to tolerate them…. We should speak to those who are depicted in this [hateful] way, or those whose suffering or whose parents’ suffering is mocked [by the neo-Nazis], before we conclude that tolerating this sort of speech builds character."

Additionally, there is no real reason — except a religious sort of belief in it — to think that the Marketplace of Ideas will necessarily correct such hateful ideas or prevent them from gaining steam. Indeed, we have the whole of history telling us otherwise.

When Antisemitic signs and images were being placed throughout Nazi Germany, was there “more speech” that came to the rescue? Was the eventual defeat of Nazism decades later (by military action no less) any consolation to the early victims of such discrimination? Should we have simply told them to wait till speech turns into action before anything can be done? Should we have told them, “Don’t worry, the Marketplace of Ideas will eventually correct this and vindicate you after you are long dead.”

This is not mere hypothetical talk or something of the distant past. Massad’s argument of the New Antisemitism — the Arab as the remaining Semite of Europe — rings true, with far-right conspiracy theories against Arab and Muslim citizens, residents, and migrants running wild. The very fact that it was a Swedish politician — not some random yahoo — who burned the Quran should tell us something about the threat these far-right parties pose to Arab and Muslim populations in Europe. The reality is that such blatantly xenophobic and Islamophobic parties have made huge gains in several European countries, with some of them even becoming leaders of their countries.

This is an even graver problem in the developing world and countries with unstable democracies. For example, India is currently ruled by the far right-wing, fascist-inspired, Hindu nationalist Bharatiya Janata Party (BJP). The leader of this party, currently the country’s prime minister, has been found responsible for the genocide of Muslims in Gujarat. However, India was not always like this. Prior to the rise of the BJP, the country had been ruled by the secular Congress party. Could hate speech laws have prevented the rise to prominence of Hindutva ideology in the country?

It is, of course, another liberal mantra that squashing such hateful speech would only lead people espousing such ideologies to become more entrenched and even more radicalized. The thought is that such governmental regulation would cause these ideas to gain an even greater allure. But, is any of this really true? I don’t think so. It is probably far more likely that the legalization of such hate speech allows members to communicate using mainstream platforms and thereby connect with each other, grow their numbers, fund their organizations, and organize their movement. Most importantly, it allows them to move from the fringes of society into the mainstream.

With the rise in far-right movements across the globe — including in North America, Europe, certain Asian countries, and a multitude of Muslim-majority states — this is something that really needs to be considered. Are we going to sacrifice the “well-ordered society” at the altar of liberal myth-making?

Waldron, for his part, makes the case for hate speech laws in liberal democracies. He argues that certain forms of hate speech should be banned not because they offend, but rather, because such speech assails the “basic social standing” of a group of citizens — it assaults, in other words, their dignity. Hate speech threatens a public good, the “sense of security in the space we all inhabit… Hate undermines this public good.”

For Waldron, it is not the speech of individuals that is targeted, but rather, objects of hate speech that invade the public space we all inhabit. He gives the example of a Jewish or black person walking into a store and seeing signs that say “No Jews allowed” or “No blacks allowed.” If a majoritarian society is overwhelmed by such sentiments — and we can just look at India today as an example — do targeted minority communities have the ability to feel safe and secure, enjoying the right to life, liberty, and the pursuit of happiness?

The (American) liberal resistance to hate speech regulation rests on a slippery slope argument. But, as Waldron points out, the majority of advanced liberal democracies of the world have managed to balance free speech — which, in any case, is never unlimited — and hate speech laws. Even us Americans know this is possible since we inhabit social media platforms that routinely strike this balance.

Few of us would want to use YouTube, Twitter, or any other social media platform that is absolutely overrun by Neo-Nazis and white nationalists — or, for that matter, Al-Qaeda or ISIS sympathizers. However, it is because we buy the myth of free speech — and fail to see the active regulation thereof (whereby regulation of speech is the norm) — that we can imagine that absolute free speech could actually ever work. Quite simply, most users of these social media platforms do not see how heavy-handed the regulation of them is; instead, we think them to be “free” (or, at least, ideally free).

Waldron makes a persuasive case for the reasonableness of hate speech regulation. He points out that even American law criminalizes libel due to the understanding that individuals so libeled suffer real social and economic consequences. If a New York Times article wrongfully states that an individual is a convicted pedophile, does any of us think that chants of “free speech” are appropriate and that the solution for such an aggrieved party is simply to respond with “more speech”? Similarly, Waldron points out, many countries consider hate speech to be a form of “group libel” or “group defamation,” with real world social and economic consequences for those groups so smeared. (In fact, this used to be a part of U.S. law too.)

Overall, liberal advocates of hate speech regulation (and post-liberals as well) wish to uphold the idea of free speech; however, they think that free speech should be downgraded from a principle that must be preserved at all costs to a value that must be weighed against other competing values. This is a realization that Elon Musk came to, even if he did not quite understand the implications for his liberal-libertarian worldview.

So, what about Quran-burnings? Or offensive and racialized cartoons of the Prophet Muhammad? Waldron wishes to differentiate between speech that assails a group’s dignity and speech that merely offends sensibilities. He seems to recognize the difficulty in clearly differentiating between the two. However, he writes, “the civic dignity of the members of a group stands separately from the status of their beliefs,” and he thus excludes Quran-burnings and cartoons of the Prophet from hate speech that he would seek to regulate. Hate towards Muslims as a group can be regulated but not hate directed towards a religion’s scripture, teachings, or founding figures.

I am not convinced by the feasibility of making this sort of distinction; neither is Stanley Fish. Waldron, for his part, seems to understand that there are going to be times in which the distinction is fuzzy; commenting on the Danish cartoon controversy, Waldron writes,

"So it might be a question of judgment whether this was an attack on Danish Muslims as well as an attack on Muhammad. But it was probably appropriate for Denmark’s Director of Public Prosecutions not to initiate legal action against the newspaper… Where there are fine lines to be drawn the law should generally stay on the liberal side of them."

Does Waldron really think that the Danish cartoons were simply intended as an intellectual attack on a seventh-century figure? Let me put it this way: if Europe did not have a single Arab, Muslim, or non-white person living in its midst, do we think that there would have been a cartoon controversy? It is the existence of the Arab or Muslim population in the country that incites attacks upon the Quran and the Prophet Muhammad. Every Muslim on earth knows that the attack on the Quran or the Prophet is really an attack on themselves, or rather, on their class (i.e. Muslims).

Waldron’s failure to recognize this is due to another liberal fiction: the idea that religion is about beliefs that one chooses to believe in. In his otherwise excellent book, Waldron dedicates a section to decrying what he sees as “identity politics”:

"People sometimes say they identify with their religious beliefs. When they say this, they make it difficult to distinguish between an attack on a belief and an attack on a person."

Yet, for the vast majority of history — and in all but liberal societies today — religion is not something individuals opt into nor is it simply a set of beliefs. In the vast majority of cases, religion is something that we are born into, something we have little choice in for all practical purposes. Yes, a person could theoretically leave a religion or convert to another one, but it is not like in liberal Western societies where life remains more or less the same afterward. Such a person faces social death, thereby leaving one’s community and, yes, one’s very identity. Furthermore, religion is not just beliefs but rituals and community. It is not simply something that happens inside a person’s mind but it manifests in all the dimensions of one’s life.

As Jonathan Haidt explains, religion is not just about belief and action, but also about belonging. It is thus intimately tied to community identity. This is not a perversion of religion but the very essence of it. Conversely, when people attack a religion, it is usually an attack intended against the group.

We know this from the recent Quran-burning in Sweden. Rasmus Paludan, the Danish-Swedish politician who initiated the Quran-burning event, is the leader of a far-right political party, which has as its primary pillar the creation of an ethno-nationalist state. Not surprisingly, immigration is at the center of the party’s concerns: it calls for a complete “Muslim ban” and a deportation of all Muslims currently residing in the country.

The theatrical act of burning the Quran is not based on some intellectual critique of its contents; it is, rather, meant to offend Muslims and to threaten them. This is what we will do to you. That is the message being sent. Given the rise of such extremist parties throughout Europe — with some of them gaining positions of influence and power — how can this not be seen as a threat to the safety and well-being of the Muslim residents in these countries?

There is thus no difference between this sort of thing and “No Jews or blacks allowed here.” Or would Waldron think it is acceptable for stores to have signs that depict Jewish or black people in highly racialized terms? The message is the same either way: you are not welcome here. Similarly, the cartoons of the Prophet Muhammad were heavily racialized caricatures, and they are in reality depicting Muslims as implacably violent and irrational. (Angry and violent responses to these cartoons by some fundamentalist Muslims certainly did not help dispel this idea! On the other hand, this was a predictable and calculated reaction.)

Ultimately, what I am trying to say is that there are plenty of reasons, at least on a theoretical level, to countenance hate speech regulation, and these would indeed include Quran-burnings and offensive cartoons of the Prophet. Even from the perspective of maintaining social order and peace, it makes sense to restrict hate speech that would inflame passions and create civil unrest; maybe the British, who passed such legislation in colonial India, actually got something right.

* * *

I have thus come a long way from my days as a dyed-in-the-wool Muslim liberal but could it be said that I am now all the way back to affirming the medieval position against blasphemy? I do not think so. I actually oppose all the blasphemy laws currently on the books in Muslim-majority countries (and any potential ones in the future). This is for a variety of reasons. Firstly, in a pluralistic world, we simply cannot derive laws directly from scripture — in this case, the Hadith.

Secondly, any laws prohibiting “blasphemy” need to be applied equally across the board and cannot privilege one religion over another. If Muslims insist that offensive depictions of the Prophet cannot be countenanced, then they should equally be ready to ban offensive images of Krishna or other Hindu gods. (Jesus is not a good example since Muslims revere him as a prophet.)

Interestingly, there is a precedent in the traditional Islamic sources for this idea of reciprocity. The Constitution of Medina, considered a founding document of Islam, established bilateral and equal relations between Muslims and Jews. In terms of blasphemy, the Quran (6:108) itself cautions believers: “Do not revile those whom [the idolaters] call upon apart from God, lest they should revile God out of enmity, without any knowledge.”

Thirdly, blasphemy laws in the Muslim-majority world today — like was the case in medieval Europe in the past — enforce unacceptably harsh punishments, including long prison sentences and even capital punishment. From this perspective, any reasonable Muslim should want to distance him or herself from blasphemy laws, which extend the authoritarian control of the government. The association between judicial corporal or capital punishment and state authoritarianism is well established.

Having said all of this, what if laws were passed restricting “hate speech” against religions if such laws were: (1) derived from reasoned discourse, (2) applied equally across the board (and thus not privileging one religion over another), and (3) only handed out mild and reasonable punishments (i.e. monetary fines)? Would this take out the sting from the “barbarism” that we think of when we look at “blasphemy” laws?

I should clarify here that what I am countenancing is not mere hate speech as understood by liberal advocates such as Waldron. For one, I am extending his own logic to say that Quran-burnings and blasphemous cartoons should fall under what he considers hate speech, and that the distinction he makes between offense and dignity is impossible to maintain. For another, however, I am making a broader argument that free speech does not really exist and societies restrict speech that they do not approve of… and they do this all the time. In the secular liberal West, we are sensitive to attacks against race, gender, or sexual orientation. These are our Western sensitivities, so we protect them. But, other societies have different sensibilities; should they not have a right to protect them as well?

If a society is religious, it simply makes sense that they would want to protect their religious sensibilities. For most Western liberals, of course, religion does not deserve any such protections. If anything, religion deserves ridicule and contempt. However, as a post-liberal who now quite clearly sees in the West the breakdown of family, society, and church, I have come to realize the benefits of religion and why it is worth cherishing. This is something that the classical Islamic philosophers realized long ago and what America’s Founding Fathers also affirmed: religion is necessary for the well-being of society and its social or moral fabric.

Studies have shown that religion can make people happier, more generous, more civically engaged, less depressed, less lonely, less likely to commit suicide, less likely to engage in anti-social behavior, less likely to commit crime, less likely to binge drink or abuse drugs, etc. etc. Even more importantly, religion corrects the worst excesses of liberal individualism and social atomization; it also promotes marriage, prevents divorce, and keeps families together, resulting in less single parent households. Many liberals won’t want to admit any of this but the data is compelling.

What does this have anything to do with “blasphemy” or hate speech against religion? In a purely theoretical post-liberal world, I believe the value of religion would be recognized (even by those who do not necessarily believe themselves — again, religion is more than about mere belief). In such a world, “blasphemous” depictions — whether of “Piss Christ” or a bomb-wielding Muhammad — would not be tolerated, not due to any religious or scriptural prohibition, but rather, due to the social harm affected by such.

Liberals want to say, “it’s just a cartoon,” but we all know it is much more than that. Surely we all understand the power of satirical cartoons, which can bring down governments. It is disingenuous to act absolutely flabbergasted when many Muslims take great offense at a “mere” cartoon. Nothing can be as damaging to a religion as ridicule and mockery, which is exactly why critics of religion engage in it. And there is very little a reasonable believer can do to respond to such a thing. Whereas I think all societies should and must preserve the right to intellectually critique religions — and to do so forcefully and vigorously — we can all recognize the difference between an intellectual critique and pure mockery. In other words, I can at least see the reasoning to allow one and not the other.

* * *

In this long and winding essay, I have defended the existence of hate speech laws, which might even include some provisions against what could be considered “blasphemy.” However, this has been on a purely abstract theoretical level. In reality, however, I am not calling for Muslims to push for such laws in Western countries; this, I think, would be counterproductive. Moreover, I stand opposed to any blasphemy laws in the Islamic world. Why is this?

Firstly, I recognize what I said at the start of this essay: free speech is intimately tied to power. Societies protect speech that they value (or, at least, what the powerful in their society value). Even in the United States today, powerful social and economic forces act to suppress racist or homophobic rhetoric. Meanwhile, government agencies and laws curtail the free speech of the country’s sworn enemies, such as Al-Qaeda and ISIS sympathizers today. From this perspective, free speech is a myth.

The shibboleth of “free speech” is invoked in a deeply unequal way to prioritize the speech of the powerful at the expense of the weak. Liberal ideologies are thereby prioritized, with speech being constrained most recently, for example, on matters pertaining to transgenderism.

Few Americans seem to know this but anti-religious speech was indeed curtailed in early U.S. history. In 1823, for example, a Massachusetts man was imprisoned for writing an essay denying the existence of God and calling the life story of Jesus fictitious. Most liberals today would look back at this, shake their heads in disbelief, and feel good that we have come a long way. But, the reality is still there that human beings in general seek to restrict the speech that they do not agree with.

A major reason why blasphemy against Christianity is no longer criminalized is because religion is no longer seen as important in the day-to-day lives of Americans and Europeans, at least not in the lives of the ruling elite. Had this not been the case, secular arguments could be raised against blasphemy, and this is exactly what happened in the past. At that time, it was said that such speech was curtailed not due to religious or scriptural reasons, but rather, to preserve social order and the good ordering of society. (I have agreed with this reasoning above.) This reveals to us again how speech can so easily be moved into the camp of action (and thereby proscribed). But, since religious sentiment has declined (especially amongst the elite), now the critique of religion has become central to free speech.

In any case, the point is that American Muslims — or European Muslims — are not in a position of power. In fact, they — we — are a marginalized and highly stigmatized group. As such, we are at the receiving end of the “free speech” myth. Free speech is wielded as a weapon to further stigmatize us, to claim that we are somehow less than, unable to appreciate a right that the free and civilized world affirms. This was implicit in the Swedish prime minister’s statement: “freedom of expression is a fundamental part of democracy.” This is not something that he would have dared to say to Jewish citizens about Holocaust denial. And, of course, reasons can always be adduced as to why that is so much different than this.

Free speech is a myth. It is used to promote speech the powerful agree with. Given that we Muslims have no power, we should realize that advocacy for hate speech laws in our defense only serves to further stigmatize us as opponents of free speech and of “civilization.”

On the other hand, where Muslims do have power (i.e. in the Muslim-majority world), there anti-free speech and blasphemy laws are indeed used in a highly biased way by fundamentalists and majoritarian groups in order to exert power over beleaguered minorities. In Pakistan, for instance, hate speech laws are invoked at the expense of Christians and Ahmadis, with grave consequences. We should absolutely not accept this situation.

Furthermore, and most importantly, there is a desperate need to acknowledge the need for accepting free speech as an important value in the Islamic world. Even though I have pointed to some Western double standards and hypocrisies, I do not agree with anti-liberal traditionalists in the Islamic world who wish to use these examples to circumvent the idea of free speech altogether and to return to (or remain in) a state of medievalism. The reality is that even though Holocaust denial is proscribed in many European countries, nobody’s head is being chopped off for this either. There is thus still a major difference between how that issue is treated and how many reactionary fundamentalists and extremists react to depictions of the Prophet Muhammad. We cannot allow pseudo-intellectual sophistry to hide this fact. We Muslims must look at the ugly face of Islamic fundamentalism and extremism… and punch it in the nose.

* * *

In sum, I have laid out a (purely) theoretical defense of hate speech laws, including a possible proscription of Quran-burnings and offensive cartoons of the Prophet Muhammad. In practice, however, I do not advocate any such laws and call on fellow Muslims to abandon such advocacy. As discussed at the start of this essay, there is much in the Quran that can inspire such a magnanimous attitude. From a purely religious and scriptural perspective, then, I think ignoring such acts of offense — and responding with words of peace — is the right path to go down for us as a religious community.

My message to non-Muslim Westerners, on the other hand, is a little bit different. I would first ask people to recognize the myth of free speech and how it always operates against a power gradient. Secondly — and this is where I now speak for my organization (the Muslim Public Affairs Council) — I would simply call for equal and just treatment. This means recognizing that we cannot dictate to other groups what they find offensive or not, no more than I can poke fun of someone’s weight and think it unacceptable for someone to insult my height. We all have different sensibilities and sensitivities. If Americans are sensitive about race or sexual orientation based on its connection to identity, similarly do many Muslims feel about their religion, which often forms the core part of their identity.

In the United States, most Americans oppose hate speech regulation, although not by a sizable percentage (40% of Americans actually support hate speech laws). Yet, even so, an overwhelming 79% of Americans consider hate speech to be morally unacceptable. What this means is that those people who engage in racist or Antisemitic speech will be heavily stigmatized and face real social and economic life consequences. This serves to penalize and prevent such hate speech from becoming mainstream or acceptable. I only ask that Americans consider Islamophobic rhetoric — including Quran-burnings and racialized cartoons of the Prophet Muhammad — to fall into this same category. It might remain legal but it should not be acceptable within polite society.

Meanwhile, we should also recognize that a majority of Western countries do in fact have hate speech laws on the books. As such, the claims of “free speech” when it comes to what offends Muslims seems hypocritical, especially when it is framed in civilizational terms. Is not the headscarf, which is variously banned in French schools and governmental buildings, a part of free speech and expression of one’s religious beliefs? Yet, how easy it is to claim that dress is an action and not protected speech. Again, “free speech” is always expressed down a power differential, with justifications always ready at hand to discriminate against a marginalized group.

We do not feel that it is inconsistent with the laws of many European countries that such actions — such as Quran-burnings and offensive cartoons of the Prophet Muhammad — be put in the same category as Holocaust denial and other forms of proscribed hate speech. It is absolutely true that Muslims, whether here in the West or in the Islamic world, cannot expect special treatment. However, there is a deeper issue of double standards and hypocrisy, which rides the back of the free speech mythology.

Dr. Javad T. Hashmi is Research Director at the Muslim Public Affairs Council (MPAC) and a PhD candidate in the Study of Religion at Harvard University.