Can We Tolerate Tolerance?
We live in a tolerant society. Of course, that is an exaggeration. But when it comes to so many flashpoint issues – ranging from blasphemy to race-hate speech – we are far more tolerant than almost all other nations, so much so that we are routinely criticized for being too tolerant. It is our badge of honor . . . and dishonor.
Mindful of the events in France and Denmark earlier this year, I wonder: Will we continue to tolerate toleration if our world takes a terrible turn? My question has less to do with what is being tagged as the “terrorist’s veto” than with a more complex problem, and one therefore even more difficult to resolve. This problem occurred to me when I first read an eye-opening essay by Mark Lilla in the New York Review of Books, an essay entitled “France on Fire.” Here is a very brief excerpt:
“For the past quarter-century a political and intellectual culture war over the place of Islam in French society has been bubbling along, and every few years some event — a student wears a burka to school, riots erupt in a poor neighborhood, a mosque is attacked, the National Front wins a local election — renews hostilities.”
I want to extrapolate from that essay (at once insightful and provocative) in order to outline a phenomenon that may be hurling our way, a phenomenon related to toleration and dissident speech.
Before I do, however, let turn to the glorious side of the toleration equation by way of a well-known case, West Virginia State Board of Education v. Barnette (1943). Recall the Jehovah’s Witnesses’ flag-salute case, the one with that liberty-inspiring majority opinion by Justice Robert Jackson. In words that should be fixed in every lawmaker’s consciousness, Jackson declared: “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.” The judgment in that case affirming First Amendment freedom is all the more amazing given that it was rendered in wartime and involved a religious sect that was then very much hated in various quarters of American society. (See Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000).)
The (Hypothetical) Problem
Against that backdrop, imagine the following scenario. Assume that the editors of a respectable libertarian magazine elected to publish several satirical cartoons of the Prophet Muhammad in order to make a First Amendment point and to take a stand against the “terrorist’s veto.” Assume thereafter that the Charlie Hebdo incident replayed itself in Cincinnati (the headquarters of my hypothetical magazine). Ten people who work for the magazine are murdered and two Muslim extremists take credit. Both of the terrorists are later killed in a shootout with police that also results in the deaths of two local police officers.
Here is where I begin to extrapolate from Professor Lilla’s essay. Now assume the following additional scenarios, replete with a few quotations from the Lilla essay”
- The Governor of Ohio calls for a moment of mourning with heads bowed on the day following the tragedy (say, the time is 11:00 a.m.);
- A “noticeable number” of Muslim public high school students in Cincinnati refuse, on religious and political grounds, to bow their heads;
- “And not only that. Some [tell] their teachers that the victims got what they deserved because no one should be allowed to mock the Prophet”;
- “Others celebrate the killers on social media, and circulate rumors that the entire crisis was manufactured by the government and/or Zionist agents”; and
- The parents (some of whom work for state and local governments) of some of these Muslim-American students speak openly (though not at work) to defend their children and endorse the positions they took.
Note that the Muslim-Americans in the above scenarios were otherwise peaceful and law abiding. And some Muslim-American leaders sought to counteract the messages of the violent extremists among them. That said, let me stir the pot a bit more with a few more scenarios and related questions:
- So far as government entities are involved, how far are we willing to go to accommodate (culturally, statutorily, and constitutionally) the religious views of the more observant and separatist Muslim-Americans who harbor what we would see as extreme views concerning homosexuality, female purity, and Jews and Israel?
- Finally, let me again from quote Professor Lilla to raise a final question: Some “students and their parents demand separate swimming hours or refuse to let their children go on school trips where the sexes might mix. . . . There are fathers who won’t shake hands with female teachers, or let their wives speak alone to male teachers. There are cases of children refusing to sing, or dance, or learn an instrument, or draw a face, or use a mathematical symbol that resembles a cross. The question of dress and social mixing has led to the abandonment of gym classes in many places. Children also feel emboldened to refuse to read authors or books that they find religiously unacceptable: Rousseau, Molière, and Madame Bovary. Certain subjects are taboo: evolution, sex ed, the Shoah. As one father told a teacher, ‘I forbid you to mention Jesus to my son.’” Does our commitment to religious freedom extend that far so as to accommodate the genuine religious views of those who hold them?
Let me be clear: I do not mean to demean Muslim-Americans as a class, nor do I wish to be understood as saying the above scenarios mirror the sentiments of most Muslim-Americans . I trust they are not. Then again, I may disagree with some of them, and sometimes vigorously, on several of the issues flagged above. But I also believe in toleration, and the ever-present need to be sensitive to the plight of minorities of all ideological, political, and religious stripes.
So where does that leave us?
Testing Our Tolerance
Are we tolerant enough to tolerate such scenarios? Not only as a matter of First Amendment and statutory law (e.g., federal and state RFRA laws), but also as a tolerant culture open to an array of diverse views. Again, I wonder. Even if we are tolerant, should we be? I do not mean for these to be rhetorical questions.
Such hypothetical scenarios are real in France, or so we are told. And as Professor Lilla’s essay essay reveals in stark terms, these scenarios are testing the steel of France’s commitment to liberté, égalité, and fraternité. There is also this: “[I]t is a major mistake,” Lilla stresses, “to think that average French voters will see these things better if their eyes are turned away from . . . social reality — particularly the religious pressure I have described — or if they are called racists for discussing it.” That raises yet other free speech issues.
Were the scenarios I have outlined to happen here, would we protect the rights of the Muslim-American students? Would we safeguard the free-speech rights of their public-employee parents? If they spoke out at a rally in a pubic place, would we permit the rants of hecklers to silence their speech, such silencing in the name of assuring public order and safety? And would we also protect the countervailing rights of vociferous critics of fundamentalist Muslim beliefs (e.g., the late Christopher Hitchens) even if they struck some as “hate speech”?
Admittedly, certain tenets of existing law should protect some of the expression I have mentioned. But would that law be honored in the face of a horrific terrorist act followed by statements either applauding it or justifying it? In such a volatile climate, how receptive would the the public and our courts be to standing up for the constitutional rights of Muslim-Americans and their families?
Moreover, there is also the specter of the consequences a of runaway application of religious freedom laws (e.g., RFRA), the kind that now inform many religious objections to contraception, abortion, and same-sex marriage. If these and other exemptions are allowed in the case of Christian beliefs, why by that logic shouldn’t Muslims be allowed to tap those same laws to exempt them from the things they find morally reprehensible?
Yes, it is complicated, very much so. We are tugged and torn in different directions. Law, like life, can be messy. In all of this, it is well to remember that the Barnett case originally went the other way in Minersville School District v. Gobitis (1940), and this by an 8-1 margin. It took time (and philosophical distance) to turn things around in Barnett. Unfortunately, that clock ticks the other way for us insofar as the scenarios I have suggested are concerned; in fact, their actuality may be drawing near.
Diversity & Dissent
The dissident is the outsider, the one whose views contest ours. The dissident is the different one, the person whose motherland and moral values are not ours. And the dissident is sometimes the one who defends the indefensible, or at least that is how we see it. Diversity has its benefits, no doubt. Then again, multiculturalism demands its dues. Some conservatives deny the former, while some liberals deny the latter.
Catholic, Protestant, Quaker, Witness, Adventist, Muslim, Jew, Scientologist, or atheist – take your pick. At one time, they were (or still are) outsiders. In that regard, know this: In time the outsider’s views may one day prevail in the marketplace of ideas, and in the mosques of faith. If so, will we be the better for it? Maybe. But then again, maybe not. Sometimes experiments fail; sometimes the marketplace yields ruinous results. What then? Nothing! For by that time it may well be too late; the gravity of the “evil” will have brought us down. Hence for that reason alone, reasonable and more prudent-mided people (of the American branch of the Edmund Burke school) may differ in their answers to my questions. Fine. Let us have the debate, provided the spokespersons for the respective sides are honest brokers acting (pardon the expression) in good faith.
All of this is a sobering reminder that the First Amendment is a risky experiment in democratic government. It is, if we are to be unequivocally honest, a gamble. Sure, we turn to “balancing” or “cost-benefit” analysis or “tailoring” or definitional fixes to reduce the risk. But sometimes, securing liberty is little more than a crapshoot, a hope against hopes that freedom and fairness will win out. Albert Camus (the humanist, French resistance fighter, and philosopher who remains a stranger in Algeria, his birthplace) knew that; too many of us do not.
Students of constitutional government in America need to understand this; they need to understand that our grand Madisonian experiment in freedom is sometimes just that – a risk-laden roll of the existential dice.