‘Freedom for the thought we hate’


source: http://opinion.inquirer.net/9801/%E2%80%98freedom-for-the-thought-we-hate%E2%80%99


Mideo Cruz may have blasphemed but precisely for that reason we can only boycott but not censor him. His work “Politeismo” has been vandalized and now suppressed together with the rest of the artwork in the Cultural Center of the Philippines’ exhibit named Kulô. The ensuing outrage has exposed grave misconceptions about why we offer communal protection for expressive freedoms.

The first fallacy is the view that if many people find it offensive, then it can be censored. Susmaryopsep. That’s precisely why we have the Bill of Rights! It protects, in the words of Oliver Wendell Holmes, “not free thought for those who agree with us but freedom for the thought that we hate.” Robert Jackson (who was also the US chief prosecutor at the Nuremberg trials) also said: “[T]he freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

The fallacy puts democracy above liberty, and leaves marginalized minorities at the mercy of the frenzied mob. It forgets that human rights are essentially counter-majoritarian. Again citing Jackson: “The very purpose of a Bill of Rights [is] to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities … [T]hey depend on the outcome of no elections.”

The second fallacy is that it would have been okay if the offending art was displayed in a private gallery, but not at the CCP, “on public property and by a public agency,” “a state instrumentality [which] makes [the government] complicit to an attack on religion.”

On the contrary, my dear Watson. A private gallery is completely free to judge art according to its aesthetic biases. But a publicly-funded gallery is bound by a document called the Philippine Constitution, which requires it to respect “freedom of speech [and] of expression” (Article III, Sec. 4) and “foster … a Filipino national culture … in a climate of free artistic and intellectual expression” (Article XIV, Sec. 14). By shutting down Kulô, the government is reduced to being the henchman of the neighborhood thug.

The third fallacy is that the CCP merely “succumbed to pressure by permanently closing the exhibit.” Not so fast, amigo. Read the fine print of the CCP’s statement. One part rightly speaks of public pressure: it was “due to numerous e-mails, text messages and other letters” sent to the CCP and the artists. But another part speaks of what we call the “heckler’s veto”: due to “hate mail” and “an increasing number of threats to persons and property, the [CCP has] decided to close down” Kulô. There is a world of a difference here. In the first rationale, the censor is the CCP itself. But in the second, the censor is the bully who forces the hand of the CCP to lower the boom not on “content-based” (i.e., the irreligiosity) but on “content-neutral” grounds (i.e., the risk of violence).

The fourth fallacy is that Politeismo deserves less protection because it is lesser art, a “mere” collage, in contrast to, say, a “real” painting. What is art, after all? If you have to ask, Rambo, you’ll never know. The CCP’s curator selected only well-known artists, and this exhibit has been previously housed at two universities, the Ateneo de Manila and the University of the Philippines.

The most potent argument against the CCP is that Politeismo is hate speech; it is “injury-specific.” “Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” But Philippine jurisprudence has been uneven. Look at the Philippine case involving an outright insult against Islam (a tabloid stupidly saying that Muslims consider pigs “sacred animals”). The Supreme Court threw out the case because “the hurtful speech maligned a large class of people, a group too vast as to readily ascertain who among [them was] particularly defamed.” The Court was lackadaisical when it was a minority that was slurred, and it will be finicky now that the religious majority feels slighted?

The fifth is the braggadocio by church lawyers that the Revised Penal Code provides enough basis to punish any person who publicly “offend[s] any race or religion.” Remember that the law likewise criminalizes defamatory speech, but—in order to reconcile it with the Bill of Rights—the courts have concocted the New York Times v. Sullivan test (adopted by the Philippine Supreme Court) that makes it more difficult to convict when it is a public officer who is defamed.

The sixth fallacy is to assume that by defending Politeismo, I am endorsing it or that I really like it. I don’t. The political philosopher Michael Sandel says: “Liberals often take pride in defending what they oppose …. [They] distinguish between permission and praise, between allowing a practice and endorsing it.”

The seventh fallacy is that the CCP violates religious neutrality by exhibiting irreligious art. So conversely it violates religious neutrality if it exhibits religious art? Let us dream briefly: What if the Vatican lends us Michelangelo’s Pieta? If we shun the Pieta, we are all diminished.

The deed is done: vandalism, aborted arson, threats, and the heckler’s veto. In the coming days, I urge the CCP officers to avoid the limp ratiocination that I have heard from them of late, to stand fast by artistic freedom and not resign, and to stare down a benighted public barely aware it is actually the one getting screwed when we let the hecklers win.


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