Sunday, February 26, 2006

Xian Xian Bao Bao

Freedom of speech has been all the rage of late. In the case of David Irving, convicted of Holocaust denial by an Austrian court, whether one feels that justice is being served will in large measure depend upon whether one feels threatened by National Socialism. Richard Cohen sees Irving as a harmless idiot who should be free to express his idiotic opinions to any and all. Hans Rauscher, writing for Der Standard, argues (in German) that Holocaust denial is not the mere expression of an opinion, but rather part of a political effort to make National Socialism appear harmless, and thus to rehabilitate it as a legitimate political alternative.

As an American my sympathies tend towards Cohen's view. I recall the words of Thomas Jefferson, "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." The original context of the statement, written in a letter to Archibald Stuart, was not a defense of freedom of speech, but of state power vis-a-vis the federal government. The sentence is often included in anthologies of statements about liberty, not unfairly, for it does express a general sentiment about political liberty. Regarding freedom of expression, we see "inconveniences" on either side, and it would be wise to consider which set of inconveniences we would rather live with.

But the limits of expression are not solely defined by such inconveniences. United States jurisprudence has long held that the First Amendment does not provide an absolute protection of all forms of speech. In Virginia v. Black et al, the United States Supreme Court held that "The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence."

The dissent by Justice Clarence Thomas in Virginia v. Black is particularly illuminating. He agreed with the plurality that Virginia had the right to prohibit cross burnings, but not on the grounds of whether any particular cross burner showed an intent to intimidate, which would involve a consideration of First Amendment liberties, but rather because the act of burning a cross is itself an act of terrorism. "[J]ust as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point. In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests."

Thomas, known for saying very little during oral arguments, became exasperated during oral presentations in Virginia v. Black, saying, among other things, "We had almost 100 years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. Was--ins't that significantly greater than intimidation or a threat?" Thomas' questioning reportedly "electrified the courtroom." From the transcript, it seems that the other justices and lawyers echoed and confirmed Thomas' characterization of what the burning cross has meant in American history.

I don't often find myself agreeing with Justice Thomas, and I don't agree with him entirely--an image of Madonna Ciccone behind bars comes to mind, so I think the plurality was correct to consider criminal intent as separate from the symbolic act--but I do agree that in viewing such matters culture and history must weigh heavily. "In every culture," Thomas writes, "certain things acquire meaning well beyond what outsiders can comprehend." And he explains, "In our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence." Minimally, I think, one has to understand this as the background against which any act of cross burning in America will be understood.

Applying the reasoning of the Supreme Court in Virginia v. Black to the case of David Irving, imperfect though the comparison may be, it is not all clear that Irving is the victim of an injustice, for his denial of the Holocaust was not simply a matter of having had a wrong opinion, as he claimed at one point, but rather a deliberate attempt to challenge the laws against National Socialism, and promote a National Socialist agenda. Holocaust denial is a key genre among the symbolic expressions of National Socialism, and whatever else may be at stake, it is appropriate for Austrian jurisprudence to consider Austrian history and culture in deciding whether symbolic expressions of National Socialism constitute a danger to society.

In a lighter vein, one hopes, the Chinese government has moved to ban television cartoon shows that mix live action with animation. The ban will likely cover the popular children's show, Teletubbies, known as Xian Xian Bao Bao in Chinese. The motivation behind the new rule appears to be the protection of China's animation industry. (I was surprised to learn that serious complaints have been made about the cultural symbolism of the Teletubbies, but I shouldn't have been. Nowadays everything is a Rorschach.) If the ban is simply a matter of business, then it may perhaps be easily resolved. Then again, it's the sort of conflict we can expect to see with greater and greater frequency as the global communications network continues to expand.

The prospective ban on Xian Xian Bao Bao raises one issue that I think tends to undermine Cohen's argument, or at the least suggest a need to refine the case for unfettered freedom of expression. Cohen's argument relies on a "marketplace of ideas" metaphor, and more especially, a "free market of ideas" metaphor that doesn't fit the reality of how ideas are exchanged in the modern world. In the global information economy all expressions are not equally accessible, and if any correlation exists between an opinion's reasonableness and its ubiquity, it's likely to be inverse. That Holocaust denial is exceedingly rare in among liberal arts faculty, while reassuring, offers no guarantee that it won't become a popular meme or subtext to popular discourses. As it happens, American popular culture is not remarkably accomodating to Holocaust denial, but the reasons for that owe as much to historical events and cultural mythologies as they do to free and fair competition in the marketplace of ideas. To be sure, freedom of expression is an essential aspect of American culture, but a purely idyllic conception of that freedom obscures the sorts of inconveniences we would be wise to attend to, the actual legal meaning of First Amendment protections, as well as implicit assumptions about discourse that may not present themselves primarily as obstacles to free expression, but may reveal persistent systemic inequalities which cannot be consistent with an ideal of personal liberty.

The odiousness of Holocaust denial is universal, but the nature of the threat implied will differ from place to place. And yet in the era of global communications, the boundaries between cultures seem more porous than they have ever been, and questions of cultural integrity become unavoidable. It is very comfortable for an American to say that the solution to troublesome expression is simply more freedom of expression, but in conjunction with the regime of transgenerational "intellectual property" and the global economic dominance of the United States, such as stance carries a whiff of hegemony and class privilige. Unless or until academic work is as widely available as propaganda, advertising, political opinion--or Xian Xian Bao Bao, for the time being--the educated person's decision to ignore the likes of David Irving cannot be regarded as an unambiguous virtue. To fully turn the table on Cohen, by ignoring these ideas, various American intellectuals accord them a certain respect. See, why are they ignoring us? It must be because they are cultural elites.

I wouldn't want to take this line of argument to its extremes. One virtue of education is that it's not easily undone, and there's no inherent reason that the account one gives of one's view should take the form of an apology. The point I will stick to is that when one engages in crosscutural dialogue, it would be most clever to have a sense of how one's own cultural background informs one's point of view, and it would be most gracious to show respect for cultural differences. This may also be the most reasonable path to follow. As I've suggested, if we look at Austrian law in the context of Austrian history and culture, it does not on its face represent a radical divergence from American law regarding freedom of expression. This should lead us ask more probing questions about issues of liberty and equality, to ask rather than assume what sort of confrontation National Socialism represents, and what sorts of confrontations ought to be allowable in a democracy, and by what criteria we should judge the nature of a confrontation.

Whether or not the Austrian prohibition against Holocaust denial represents the best social policy, the case that a grave injustice has been done to David Irving is hard to accept. Any questions we should raise about the scope of liberty in Austria should not obscure the fact that David Irving is the mastermind of his own misfortune.

posted by Fido the Yak at 5:45 PM.


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