It was morally wrong for two men to attack an anti-Islam installation last weekend in Garland, Texas, and no one should mourn the death of these terrorists. But what about deliberately provoking the assault by staging a competition for the most insulting caricature of the Prophet Muhammad? Was that morally wrong? Or was it just a reasonable exercise of the right to free speech?
It’s easy to be distracted by the condemnation of the crime, which should be absolute. No verbal provocation can justify killing.
But it’s also easy to be distracted by the First Amendment. The Constitution guarantees a right to speak. Under Supreme Court precedent, that right extends to most offensive speech, provided it doesn’t count as “fighting words” that would immediately cause a reasonable person to respond by throwing a punch. Many other countries, including those we consider free, outlaw racist speech or speech inciting racism. The United States doesn’t — and can’t under most interpretations of the First Amendment.
But the protected status of free speech says nothing about whether particular speech is morally right or wrong. That status allows me to advocate for child abuse or witch-burning or killing members of a race I don’t like. These kinds of speech are morally repugnant, even though they are constitutionally protected.
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To evaluate the conduct of someone who speaks with the intent to provoke a violent response, then, we need to consider the speech on its own terms. We need to ask: What did those who staged the provocation intend to happen? And what were the foreseeable consequences?
One goal of the provokers in Texas seems to have been sending a message to Muslims that their faith may be criticized with impunity. Pamela Geller, the organizer, said she chose the venue because Muslims had previously organized an event there. Geller also said that Muslims generally cannot be criticized in the United States because of political correctness, and that she wanted to counteract what she perceives as a new social norm.
The desire to condemn Islam by intentionally offending Muslims is morally unpleasant in itself. Insulting the Prophet to make a point is a bit like showing Nazi propaganda to prove that Jews can be subject to criticism: effective, but repulsive.
Yet as moral wrongdoing goes, giving offense isn’t at the top of the list. You shouldn’t do it, but when you do, you’re offensive — nothing more. Compared with intimidation, for example, offense is less wrongful. If offense were all that Geller intended, she’d deserve a stern lecture about civility, not deep condemnation.
Geller also had a plausible moral rationale: to strike a blow for free speech itself, after January’s attacks in Paris at the offices of Charlie Hebdo. Perhaps, it could be argued, some offense is justified in light of the need to stand up against terrorism that is intended to repress speech.
But there was almost certainly another goal at work in the provocation, too. Geller clearly wanted to get a reaction from Muslims offended by the event’s intentionally offensive speech. The point of the offense was, in part, to generate a response.
Perhaps all Geller wanted was to provoke a counterdemonstration that would have drawn attention to her efforts. But assuming for a moment that she didn’t want to provoke a violent attack, Geller could still be held morally responsible for the foreseeable consequences of her provocation.
There’s a moral theory, called the doctrine of double effect, that says you shouldn’t be blamed for foreseeable consequences that you don’t want. We sometimes rely on it, as in justifying collateral damage as a result of an otherwise morally correct use of force.
This moral doctrine of double effect has no place in evaluating a conscious provocation. Geller was trying to provoke a reaction. If the reaction was reasonably likely to be violent, she can’t hide behind the notion that she didn’t want anyone to get hurt.
Was a violent reaction foreseeable? I’d like the answer to be no. Plenty of insults against Muslims go unremarked, and certainly unavenged. Violent attacks like the one on Charlie Hebdo are extremely rare.
Fairness toward American Muslims would seem to require us to say that the violent reaction wasn’t reasonably likely to occur. We’d then have to absolve Geller on a ground she probably wouldn’t much like.
But that still leaves the question of Geller’s own subjective beliefs and intentions. It’s hard to escape the suspicion that part of her hoped to provoke a violent response.
After all, it’s part of Geller’s worldview to believe that Islam is a violent religion. The bus and subway ads she’s paid for depict Islam in terms of violent jihad. She paid for an armed security guard outside the event, suggesting she considered violence at least possible. What’s more, the value of the free speech she is trumpeting is relevant mostly because cartoons perceived as insulting the Prophet have been met with violence.
If — and I say if — Geller intended to provoke violence, she did something much worse than giving offense. By willfully trying to provoke violence, Geller was trying to create a situation in which innocent people could have been harmed or killed. As it was, a security guard at the event was injured. (By the way, the guard who shot and killed the attackers counts as a hero who saved lives, regardless of Geller’s motives.) If Geller wanted violence to happen, her actions were morally culpable — even though she obviously didn’t commit it.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently “Cool War: The Future of Global Competition.”
© 2015, Bloomberg News