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Frenemies of Free Speech

The damage that benevolent censors do.

Mar 21, 2011, Vol. 16, No. 26 • By SAM SCHULMAN
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It’s no wonder that so many in Europe believe in the notion of “good censorship”—and are willing to prescribe it to us. The European chattering classes believe that it is easy to draft sensible limits on free speech in the interest of civility, tolerance, peace, and civilization. And it may seem to the publics in European countries that silencing and even imprisoning a few journalists and center-right politicians will be worth it if it attains social cohesion. They will never really know, since European national publics no longer have the power to decide on such matters—limitations on freedom of expression come increasingly from EU directives and court decisions. But the notion that speech could be limited in a benevolent way has a history that goes back a century before Denmark’s 1939 experiment, and in two little known but dramatic instances failed in ways that are spectacularly ugly—and still have consequences today.

What did happen when “good censors” went to work in British India and antebellum America? Enormous political impact and dire consequences. These two little-known examples took place almost simultaneously, in the mid-1830s, at opposite ends of the world. And both were attempts to deal responsibly with horribly difficult questions of politics, race, and religion.

In 1837, the great liberal polymath Lord Macaulay and two colleagues in Calcutta drafted an entirely new Penal Code for British India. It was designed to replace at one stroke the existing criminal law, which was largely a hodgepodge of old laws from the previous Mughal regime, and was finally adopted in 1860. Macaulay’s work not only survived the entire period of British rule, but has survived independence to become the penal code of India and Pakistan alike. One section in particular has become a cause of great strife in 21st-century Pakistan: Macaulay’s decision to regulate and criminalize insults to religion became the core of Pakistan’s notorious “blasphemy laws” (which politicians currying favor with religious parties made much more stringent beginning in the 1970s). 

In January of this year, Salman Taseer, the governor of Pakistan’s Punjab Province, was assassinated for proposing a humanitarian modification to the blasphemy laws—which might have spared the life of a Christian woman, Aasia Bibi, whose arrest had become an international cause célèbre. Last week, the controversy claimed another victim, Shahbaz Bhatti, the sole Christian member of the government and an advocate of reforming the blasphemy law. He was gunned down while driving in Islamabad. Much of Pakistan’s population, major media figures, and most of the opposition parties celebrated Taseer’s assassination and made or tolerated threats against anyone who would dare touch the laws. Bhatti knew he was courting his own death by accepting the dare.

Starting in 1835, another group of well-meaning liberals—politicians, intellectuals, and businessmen in Northern states—undertook a campaign against abolitionism in order to placate their Southern political and business partners. Hardly defenders of slavery, these “anti-antislavery agitators” are the true ancestors of the “anti-anti-Communists” of the 1950s and of today’s “anti-anti-Islamists.”

Macaulay was motivated by the need to promote tolerance in a country shared by a few thousand European Christians, millions of Muslims, and, as Macaulay put it, “tens of millions of Hindus strongly attached to doctrines and rites which Christians and Mahomedans join in reprobating.” While Mughal law protected Islam alone against insult (and did so haphazardly), Macaulay’s code gave people of any faith protection from having their “religious feelings” wounded—by words, gestures, trespass, and destruction of property. Macaulay was confident that magistrates would apply the law only to deliberate, malicious, and considered insults—not passing observations or anything said in the heat of religious dispute in defense of one’s own religion. Good jurists would ensure that the subjective impression of the injured party would never define the crime of blasphemy (which is precisely how the modern-day European hate speech laws do operate).

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