There's Something Rotten in Denmark: Should Violent Backlash Impact the Free Exchange of Ideas? [IP Bytes #2]

(Original photo from APC Africa - Freedom of Expression)

In looking at ownership of expression we must always be mindful of the counterbalance of the freedom with which we allow that expression to evolve. The United States Constitution authorizes Congress to grant copyrights and patents: "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (U.S. Constitution, Art. I Sect. 8). This grant of Congressional power under the Commerce Clause is meant to have the effect of generating revenues for innovators who contribute to the progress of both science and useful arts. Read in conjunction with the First Amendment of the Constitution, "Congress shall make no law ... abridging the freedom of speech or the press," we begin to see how the American idea of expression must be unabridged and capable of ownership.

This is not without limits. Courts have spent years interpreting the meaning of "useful arts" as well as crafting permissable instances where the government may in fact "abridge the freedom of speech." One such example is Brandenberg's unlawful incitement test:

"Merely teaching or advocating unpopular ideas must be distinguished from teaching or advocating the duty, necessity, or propriety of acting on those beliefs. The right to speak and organize cannot be abridged no matter if the group's message and purpose are repugnant to American values (such as KKK speech). In order for government to intervene, the speaker must subjectively intend incitement (imminent evil), use words which are likely to produce action (imminent action), and openly encourage or urge incitement (suggesting, for example, it's a duty to commit a crime)."

("Freedom of Speech" website: http://faculty.ncwc.edu/toconnor/410/410lect08.htm). Some areas of speech are granted no protection such as obscenity, fighting words and libel. There are other areas of speech that under Constitutional Law are granted lesser protection such as hate speech, commercial speech, internet defamation and campaign speech. These areas intersect with the laws of copyright, and some commentators have called copyright a restriction on speech as well. But what about a world where violent backlash becomes a restriction of free expression?
(Image from National Business Review)

Over the weekend of February 4th 2006, protestors of a Danish cartoon allegedly depicting the prophet Mohammed with a lit bomb for a turban culmanated months of peaceful yet heated protest with extreme acts of violence. They burned the Danish Embassies in Lebbanon and Syria and violence erupted in other countries as well. Initial response to the cartoon stemmed from angry reactions to seeing what Muslims concluded was the prophet Mohammed depicted in graphic form. This is a sin in the Muslim culture regardless of the message intended (in this case that Muslim extremism, regardless of religiousity, involves violence and bombing). The perception of some Westerners has been that Muslims are angry that Mohammed is being depicted as a bomber, and call it ironic that the response to a stereo-type of violence has been violence. What such a conclusion misses, however, is that the extreme response to the cartoon is for the depiction of a prophet at all, not that he is depicted in a certain way.

This story has been a concern here in IP Bytes because of the implecations of violent backlash affecting the free exchange of ideas. While the rules of Amercian Constitutional Law and free expression do not apply with binding force to the world community, I think it is the sincere hope of democratic individuals that others will find value in the ideals of freedom that have been born of having such doctrine here in the United States. To see news stations refuse to show the cartoon in their broadcasts about the embassy burnings for what they say is "respect for Muslim worshippers" is suspect to interpretation. Are they refusing to show the cartoon for fear of backlash? As I write this these same fears cross my mind. It seems however, that the creator/owner of the cartoon is and has been much more likely to be on the receiving end of anger than those who would report or write about it. Which leads me to the point of this blog: will the Danish cartoonists and media be hesitant to print similar material in the future b/c of the response? Has their ownership of such expression, which has caused a violent backlash towards the Dutch in general (rather than the actual copyright holders) be nega-centive enough to curb the further expression of such a topic? Time will tell, but I do know that I would hate to live in a world where such backlash is a response to what becomes permissible to print or own. We need to be free to express and own dissenting views, even if we don't agree with them. The proper response is intelligent discourse and counter-dissent, not burnings and destruction. There are so many tools today (more than ever) to have your voice heard: sign up free blog, write a letter to the editor stage a peaceful protest, etc. For now, we will have to wait and see how the world reacts and whether such tensions can be resolved through open exchange.