From: Pamela Kellet <pck2104@columbia.edu>
  To  : <cpc@emoglen.law.columbia.edu>
  Date: Tue, 14 Feb 2006 04:29:30 -0500

Paper1: Unfair Negotiations

Unfair Negotiations: The American Principles of Freedom of Speech and of 
the Press

"If I had to choose, I prefer the excess of caricature over the excess of 
censure." What a great summation of America's devotion to the dual 
principles of free speech and freedom of the press. It echoes the words of 
the founding fathers, or at least the words we choose to remember. Take 
Benjamin Franklin: "Without freedom of thought there can be no such thing 
as wisdom; and no such thing as public liberty, without freedom of 
speech."[1] Or perhaps Thomas Jefferson: "If there be any among us who 
would wish to dissolve this Union or to change its republican form, let 
them stand undisturbed as monuments of the safety with which error of 
opinion may be tolerated where reason is left free to combat it."[2]

As riots broke out last week and deadly mobs gathered in various Middle 
Eastern cities threatening Western embassies in protest of a series of 
cartoons published in Danish newspapers, one might have thought that the 
United States would have taken the Voltairian approach and defended the 
newspapers on principle. "These cartoons are indeed offensive to the 
beliefs of Muslims?We all fully recognize and respect freedom of the press 
and expression but it must be coupled with press responsibility?Inciting 
religious or ethnic hatreds in this manner is not acceptable. We call for 
tolerance and respect for all communities and for their religious beliefs 
and practices."[3] Then again, maybe not.

If the government cannot (or will not) say that freedom of the press is 
non-negotiable, surely we can count on our newspapers to do just that. 
Certainly they will show their solidarity with their European journalist 
brethren. "Newspapers ought to refrain from publishing offensive 
caricatures of Mohammed in the name of the ultimate Enlightenment value: 
tolerance."[4]  Then again, maybe not.

Perhaps American newspapers really are exercising their editorial 
prerogative. Just because you can publish something (thank you First 
Amendment) doesn't mean you should. Maybe the newspapers have simply made a 
decision to favor good taste over newsworthy images. In which case, I am 
left with a quandary. Were the photos that were released in June of 2004 
depicting brutal acts of torture perpetrated against inmates at Abu Ghraib 
in good taste?

Another submitted reason for the reluctance to publish the images is that 
American newspapers simply do not feel that publishing is necessary. This 
is the argument of USA Today's Jim Michaels. "We have described them, but I 
am not sure running it would advance the story."[5] Even more to the point, 
there is the internet. If you really want to see the cartoons, just hop 
online. So (once again) only those who possess the means, the patience and 
the desire will be able to get the whole story. As a bonus, if they are 
really lucky, their online activity might be monitored by the government; 
they might even be placed on a special watch list or arrested. All that 
just for looking for pictures that were too insignificant to be printed in 
a newspaper.

A third possible reason for not publishing the images could be that the 
newspapers are afraid of the consequences of publishing. Protests in 
Britain have featured people carrying placards which read (among other 
things) "massacre those who insult Islam" and "whoever insults Islam, kill 
him." A reaction that seems almost tame when compared to the burning of the 
Danish embassy in Damascus. The threats are real and persistent enough that 
the original cartoonists have gone into hiding. At least ten people have 
died. Could it be that the American press is afraid that a similar violent 
backlash could occur in the United States should they reprint the offending 
cartoons? Is this an attempt to heal the wounded relationship that the 
American press has had with Muslim-Americans since 9/11? If it is, no one 
is admitting it.

Whatever the reason for the general refusal[6] of newspapers to print the 
cartoons (decency, irrelevance, or fear) this episode has highlighted the 
one truth about the modern American principle of freedom of the press. It 
is negotiable. What is worrying is that the terms of the negotiation are 
not clear. Who decides that Abu Ghraib photos are publishable but cartoons 
of Muhammad are not? What makes an image newsworthy? How much violence or 
threatened violence will cause the press to back down?

Perhaps what Jefferson meant to say was: "If there be any among us who 
would wish to dissolve this Union or to change its republican form, let 
them be edited out so that reason may never have the arduous task of having 
to combat it." After all, it appears as though those great American 
principles of free speech and freedom of the press do not really work the 
way our national rhetoric would have us believe.

Oh and who is the originator of that great summation of American free 
speech: "I prefer the excess of caricature over the excess of censure"[7] 
One Nicolas Sarkozy, France's Minister of the Interior. It was his reaction 
to the violence resulting from the re-publication of the Danish cartoons.



[1] Benjamin Franklin, letter from "Silence Dogood," no. 8, printed in The 
New-England Courant, Boston, Massachusetts, July 9, 1722. 
http://www.bartleby.com/73/674.html.
[2] President Thomas Jefferson, Inaugural Address (March 4, 1801). 
http://www.bartleby.com/124/pres16.html.
[3] State Department spokesman Justin Higgins, 
http://www.breitbart.com/news/2006/02/03/060203161134.7zd6bpnp.html.
[4] Editorial, "Forms of Intolerance," The Boston Globe, February 4, 2006. 
http://www.boston.com/news/globe/editorial opinion/editorials/articles/2006/02/04/forms of intolerance/.
[5] As quoted in Joe Strupp "UPDATE: 'Inquirer' One of Few U.S. Papers to 
Publish 'Muhammad' Cartoon," Editor & Publisher, February 3 2006. 
http://www.editorandpublisher.com/eandp/news/article display.jsp?vnu content id=1001957270.
[6] A handful of American newspapers have now published a selection of the 
original 12 controversial cartoons in print, including: The Philadelphia 
Inquirer, The New York Sun, The Riverside Press-Enterprise, and The Dallas 
Morning News.
[7] Sebastian Rotella, "Anger Over Cartoons of Muhammad Escalates," The Los 
Angeles Times (February 3, 2006), 
http://www.latimes.com/news/nationworld/world/la-fg-muhammad3feb03,0,4651147.story?coll=la-home-headlines. 




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