tag:theconversation.com,2011:/us/topics/freedom-of-speech-1248/articlesFreedom of speech – The Conversation2024-03-27T14:22:09Ztag:theconversation.com,2011:article/2247032024-03-27T14:22:09Z2024-03-27T14:22:09ZJulian Assange: how British extradition law works<p>Julian Assange will have to wait a further few weeks to learn whether he can appeal his extradition to the US. The UK High Court has delayed making a decision on the case, giving the US three weeks to provide assurances about aspects of his trial and sentence if extradited. </p>
<p>If the US does not provide these assurances, the court will allow Assange to appeal. But if they do provide them, a further hearing in May will decide if the assurances are satisfactory, and make a final decision.</p>
<p>The WikiLeaks founder <a href="https://theconversation.com/after-years-of-avoiding-extradition-julian-assanges-appeal-is-likely-his-last-chance-heres-how-it-might-unfold-and-how-we-got-here-221217">has spent years</a> attempting to stop his extradition to stand trial on charges of espionage and computer misuse. </p>
<p>The US argues that Assange has put the lives of human intelligence sources in Afghanistan and Iraq at risk by releasing classified documents that named informants in 2010 and 2011. The UK approved his extradition in 2022 following Assange’s arrest after he finally left the Ecuadorian embassy in London, where he had been given political asylum. </p>
<p>Extradition in the UK is governed by the Extradition Act 2003. Although the UK is signatory to a number of international treaties on extradition, judges must apply domestic law only. The act sets out several <a href="https://www.gov.uk/guidance/extradition-processes-and-review">bars to extradition</a>, including human rights. The law does not give judges or politicians discretion to decide whether a person should be extradited – either a bar to extradition applies, or it does not. </p>
<p>Assange has claimed that his extradition would violate the <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/243246/7146.pdf">UK-US extradition treaty</a>, which bars extradition for some political offences. This treaty was signed in 2003 as an attempt to strengthen and expedite extradition between the two countries. </p>
<p>But the Extradition Act, introduced into UK law the following year as a reaction to the rise in international terrorism, removed the political offence exemption in UK law. The High Court has rejected Assange’s argument that extradition should be barred under the UK-US extradition treaty, because it is only the Extradition Act that the court can apply.</p>
<p>While the US can refuse to extradite for certain political offences, there is no reciprocal bar in UK law. Whether Assange’s extradition request relates to political offences has never been considered by a UK court.</p>
<p>Assange’s case and that of <a href="https://www.scotsman.com/news/opinion/why-clara-ponsati-shows-government-actions-can-be-threat-to-democracy-dr-paul-arnell-3165442">Clara Ponsati</a>, a Spanish politician involved in the Catalonian independence referendum wanted by Spain for the crime of sedition, have led to calls to reinstate the <a href="https://journals.sagepub.com/doi/full/10.1177/00220183231191476?casa_token=mzXdo5clBZwAAAAA%3A8pkhfzbcYYExc8-deHqEE5A7ZLNhdPWm1SCKlo1TgOdOZIQP62MjCAd0pTIvelaGUnYuo8Ve70oP">political offence exception</a> for nonviolent offences. </p>
<h2>Extradition and human rights</h2>
<p>Assange claims that extradition to the US would breach his rights protected by the European convention on human rights, including his right to <a href="https://pressgazette.co.uk/news/julian-assange-extradition-appeal/">freedom of expression</a>. The law requires that all extraditions must be compatible with human rights. However, the threshold required to bar an extradition is high.</p>
<p>There is no doubt that some of the charges against Assange relate to journalistic activity. The right to freedom of expression, however, is a qualified right. This means that it may be restricted on certain grounds, including national security. In UK law, an argument based on this right has never before prevented an extradition.</p>
<p>At Assange’s extradition hearing, the US prosecutor stated that they would argue that the first amendment (which enshrines freedom of speech and freedom of the press in the US) should not apply to Assange, who is Australian and not a US citizen. </p>
<p>If this were to happen, the High Court held Assange’s extradition could risk a flagrant denial of his human rights. The court found that failing to allow Assange to rely on the first amendment because of his citizenship status would also prejudice his trial by reason of his nationality – another bar to extradition in the Extradition Act. </p>
<p>Now, the High Court has asked the US to give three assurances, or promises, that address its concerns. First, Assange will be permitted to rely on the first amendment. Second, he will not be prejudiced at trial (including sentence) because of his nationality and he will be given the same free-speech protections as a US citizen. And, finally, the death penalty will not be imposed. </p>
<p>Death penalty assurances are relatively common, but those relating to specific aspects of a criminal trial are not. Generally, assurances in extradition remain controversial. It is of course important that they are <a href="https://publications.parliament.uk/pa/ld201415/ldselect/ldextradition/126/12605.htm#n82">genuine and effective</a>, but there is no set mechanism to monitor them, and therefore <a href="https://6kbw.infoservegroup.com/wp-content/uploads/2015/07/Recent-Developments-in-Extradition-Law.pdf">no way of knowing</a> whether they have been honoured. </p>
<p>The high-profile nature of Assange’s case would offer him protection in this regard. If extradited, his trial and treatment in the US would undoubtedly be widely reported.</p>
<h2>What the case tells us about UK extradition law</h2>
<p>This case highlights an inherent conflict in extradition law, between criminal cooperation and reciprocity with other countries, and the protection of human rights. Both the Extradition Act and existing case law lean in favour of extradition. This can only be overcome in rare and exceptional circumstances. </p>
<p>Extradition is based on <a href="https://blog.6kbw.com/posts/what-are-the-limits-of-mutual-trust-in-extradition-relations">mutual trust</a>. The High Court’s concern over Assange’s possible treatment in the US has not yet stopped his extradition, but led to a request for further assurances. The underlying judicial desire to agree to the US extradition request is clear. </p>
<p>Academics and legal experts are currently exploring these controversial issues in a scoping review on <a href="https://lawcom.gov.uk/new-collaboration-on-scoping-study-on-international-cooperation-in-criminal-law/">extradition and international cooperation</a> for the Law Commission. This could be an opportunity to bring greater clarity to aspects of this complex law. </p>
<p>But improvements to the law in the future will not grant Assange any reprieve – his case is headed towards its end, at least in the UK. If the court decides not to allow him to appeal, he is likely to bring the case higher, to the European Court of Human Rights. Whatever the outcome, Assange’s case has brought to the fore the inherent conflicts and complexities in transnational criminal justice.</p><img src="https://counter.theconversation.com/content/224703/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The WikiLeaks founder has been given a temporary reprieve from extradition to the US.Gemma Davies, Associate Professor in Criminal Law, Durham UniversityPaul Arnell, Reader in Law, Robert Gordon UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2244962024-03-14T12:42:05Z2024-03-14T12:42:05ZEmployees have a right to express support for Black Lives Matter while they’re on the job, according to a historic labor board decision<figure><img src="https://images.theconversation.com/files/581413/original/file-20240312-24-pix1iz.jpg?ixlib=rb-1.1.0&rect=149%2C183%2C4387%2C2788&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The aftershocks of George Floyd's death are still reverberating for Home Depot.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/mourners-in-home-depot-aprons-wait-to-view-the-casket-of-news-photo/1218632854?adppopup=true">Godofredo A. Vásquez-Pool/Getty Images</a></span></figcaption></figure><p>A <a href="https://www.nlrb.gov/news-outreach/news-story/board-rules-employees-black-lives-matter-action-at-home-depot-was">Home Depot store violated labor law</a> when it disciplined Antonio Morales, the National Labor Relations Board ruled on Feb. 21, 2024.</p>
<p>Morales, a Home Depot employee in the Minneapolis area, had drawn the letters BLM on a work apron and refused to remove them. BLM stands for the <a href="https://www.loc.gov/item/lcwaN0016241/">Black Lives Matter movement</a>, which campaigns against violence and systemic racism aimed at Black people. Morales ultimately quit because of pressure to end the use of BLM messaging.</p>
<p>The NLRB has now <a href="https://www.nytimes.com/2024/02/21/business/home-depot-blm-nlrb-ruling.html">ordered Home Depot to rehire Morales</a> based on the legal right U.S. employees have to engage in “<a href="https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employee-rights">concerted activity</a>” for the purpose of “mutual aid or protection.”</p>
<p>As a legal scholar who has <a href="https://law.tamu.edu/faculty-staff/find-people/faculty-profiles/michael-z-green">studied issues of race in the workplace</a> for more than 20 years, I believe the Home Depot decision establishes an important precedent for workers who express broad concerns about systemic racism.</p>
<p>This decision indicates that employees have a right to demonstrate their support for the Black Lives Matter movement on the job if they are seeking to improve their own working conditions with respect to racial discrimination. And this right persists even if the messaging arguably has political connotations that some workers or customers might disagree with. </p>
<h2>Right to display slogans</h2>
<p>The <a href="https://www.nlrb.gov/about-nlrb/who-we-are">National Labor Relations Board</a> is the federal agency that conducts elections when employees seek to be represented by a union. It also prosecutes and adjudicates complaints filed against employers and unions based upon unfair labor practices as defined by the <a href="https://www.nlrb.gov/guidance/key-reference-materials/national-labor-relations-act">National Labor Relations Act</a>. </p>
<p>Workers have the right to display slogans related to working conditions when they’re on the job under <a href="https://www.law.cornell.edu/uscode/text/29/157">Section 7 of that law</a>, which was enacted in 1935. Section 7 “protects the rights of employees to wear and distribute items such as buttons, pins, stickers, t-shirts, flyers, or other items displaying a message relating to terms and conditions of employment, unionization, and other protected matters.”</p>
<p>In this <a href="https://apps.nlrb.gov/link/document.aspx/09031d4583c6ebac">Home Depot case</a>, the NLRB reviewed a preliminary decision issued in 2022 by <a href="https://apps.nlrb.gov/link/document.aspx/09031d45837af63d">Paul Bogas</a>, an NLRB administrative law judge. Bogas found that Home Depot’s ban on manifestations of support for the Black Lives Matter movement didn’t violate labor law.</p>
<p>The NLRB disagreed with the decision by Bogas in a 3-1 decision that cited a <a href="https://www.oyez.org/cases/1977/77-453">1978 Supreme Court precedent</a>.</p>
<p>In that case, Eastex Inc. v. National Labor Relations Board, the court found that workers distributing materials related to their terms and conditions of employment are protected by Section 7 when there is a reasonable and direct connection to the advancement of mutual aid and protection in the workplace.</p>
<p>That ruling held that this protection exists even when political messages may be involved in the workers’ communications. “Moreover, what may be viewed as political in one context can be viewed quite differently in another,” the Supreme Court held.</p>
<p>At the Home Depot in question, Morales and other employees had previously discussed concerns about racial misconduct by a supervisor and two separate incidents of destroying a display of Black History Month materials the workers had created to celebrate Black culture.</p>
<p>Employees had a right to express their support for BLM messaging in the workplace because they had already objected to working conditions based upon racial concerns, the NLRB’s majority ruled.</p>
<p>One of the NLRB’s four members, <a href="https://www.nlrb.gov/bio/marvin-e-kaplan">Marvin Kaplan</a>, <a href="https://cdn.theconversation.com/static_files/files/3135/Board_Decision-HOME_DEPOT_USA.pdf?1710272577">dissented, in part, from the majority</a> based on his different view about the purpose of Morales’ display of the BLM messaging. Morales was expressing support for the Black Lives Matter movement’s “goal of combating police violence against Black individuals – not with improving terms and conditions of employment,” Kaplan wrote.</p>
<h2>Discussing racial justice at work</h2>
<p>Morales’ show of support for the Black Lives Matter movement in the workplace was hardly an outlier.</p>
<p>Many Black Americans began to <a href="https://www.usatoday.com/story/money/2020/06/17/george-floyd-protests-black-lives-matter-employees-corporate-america-racism/3195685001/">speak out about racism and discrimination</a> by discussing BLM in their workplaces amid the widespread protests that followed <a href="https://theconversation.com/pain-of-police-killings-ripples-outward-to-traumatize-black-people-and-communities-across-us-159624">George Floyd’s murder by police officers on May 25, 2020</a>, in Minneapolis.</p>
<p>A year after Floyd was killed, a poll found that 68% of Americans thought that employees “<a href="https://www.paradigmiq.com/blog/nearly-7-in-10-americans-think-racial-injustice-is-problem-and-believe-they-should-be-able-to-talk-about-it-at-work/">should be able to discuss racial justice issues at work</a>.”</p>
<p>Employees who wanted to show their support for BLM at work have in recent years met resistance from other employers besides Home Depot, <a href="https://www.hrdive.com/news/diversity-inclusion-grocery/627933/">including the Publix</a> and <a href="https://www.kuow.org/stories/grocery-store-workers-union-wins-case-for-black-lives-matter-buttons">Fred Meyer supermarket chains</a>.</p>
<p>Some companies have said their bans on workers displaying BLM insignia were intended to <a href="https://www.seattletimes.com/business/local-business/black-lives-matter-logos-in-the-workplace-divide-employers-workers-and-customers/">prevent disruptive responses</a> by other workers and customers who may not agree with the movement’s message. </p>
<h2>Mixed decisions</h2>
<p>Legal decisions about this issue have been mixed so far.</p>
<p>A court found that <a href="https://casetext.com/case/amalgamated-transit-union-local-85-v-port-auth-of-allegheny-cnty-2">a Pennsylvania government agency violated the First Amendment</a> when it prohibited workers from wearing face masks emblazoned with BLM messaging during the COVID-19 pandemic.</p>
<p>But <a href="https://www.nytimes.com/2023/12/21/business/whole-foods-black-lives-matter.html">Whole Foods has prevailed against workers</a> in similar cases. An <a href="https://www.aseonline.org/News-Events/ASE-News/Press-Releases/nlrb-board-overrules-its-administrative-judges-to-hold-in-favor-of-over-riding-dress-rules-for-worker-blm-wear">NLRB administrative law judge</a> found that its employees had worn BLM insignia merely as a political statement <a href="https://www.shrm.org/topics-tools/employment-law-compliance/court-dismisses-claims-whole-foods-black-lives-matter-masks">unrelated to their working conditions</a>.</p>
<p>That preliminary decision is now in question after the NLRB’s final ruling about the same issue in the Home Depot dispute.</p>
<p>Whole Foods workers asserted in a separate legal challenge that their employer’s ban on wearing BLM insignia <a href="https://www.foxbusiness.com/politics/appeals-court-rejects-whole-foods-workers-discrimination-claim-dress-code-crackdown-blm-protests">represented racial discrimination under federal law</a>. In that case, the court found that the employees had failed to prove that the ban had a racial motivation.</p>
<p>Whole Foods was instead seeking to stop expression of a “politically charged” and “controversial message by employees in its stores,” according to the court.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/581411/original/file-20240312-18-s5qhb2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People stand in front of a Whole Foods with painted signs depicting a woman in a Black Lives Matter face mask and another one with a Black person's face without a mask." src="https://images.theconversation.com/files/581411/original/file-20240312-18-s5qhb2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/581411/original/file-20240312-18-s5qhb2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=407&fit=crop&dpr=1 600w, https://images.theconversation.com/files/581411/original/file-20240312-18-s5qhb2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=407&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/581411/original/file-20240312-18-s5qhb2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=407&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/581411/original/file-20240312-18-s5qhb2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=512&fit=crop&dpr=1 754w, https://images.theconversation.com/files/581411/original/file-20240312-18-s5qhb2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=512&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/581411/original/file-20240312-18-s5qhb2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=512&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Whole Foods employees who were dismissed from their shift for wearing Black Lives Matter face masks conduct a protest in 2020.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/adam-hermon-left-and-abdulai-barry-stand-in-front-of-whole-news-photo/1227707669?adppopup=true">Erin Clark/The Boston Globe via Getty Images</a></span>
</figcaption>
</figure>
<p>One interesting aspect of these cases is the apparent contradictions involved.</p>
<p>After Floyd’s death, many <a href="https://abcnews.go.com/Politics/corporate-america-weighs-protests-racism-companies-struggle-diverse/story?id=71077049">big companies proclaimed their commitment to fight racism</a> and promised to do a better job of supporting diversity, equity and inclusion efforts. </p>
<p><a href="https://corporate.homedepot.com/news/diversity-equity-inclusion/message-craig-menear-racial-equality-justice-all">Home Depot</a>, for example, expressed its “anguish over the senseless killing of George Floyd” and “other unarmed Black men and women in our country.” The company explained how it had established worker programs “to facilitate internal town halls to share experiences and create better understanding.” </p>
<p>Amazon, which owns Whole Foods, <a href="https://www.aboutamazon.com/news/policy-news-views/amazon-donates-10-million-to-organizations-supporting-justice-and-equity">made a similar statement</a>, along with a pledge to donate US$10 million to “organizations that are working to bring about social justice and improve the lives of Black and African Americans.”</p>
<h2>Possible aftermath</h2>
<p>To be sure, this NLRB decision isn’t the final word on this issue, because <a href="https://apps.nlrb.gov/link/document.aspx/09031d4583c8e109">Home Depot has filed an appeal</a>.</p>
<p>Regardless of how the courts respond, the NLRB’s decision is historic. The labor panel has established that a worker’s support for Black Lives Matter in the workplace isn’t merely an expression of their political beliefs.</p><img src="https://counter.theconversation.com/content/224496/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Z. Green does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Racism can be a workplace issue, even at Home Depot.Michael Z. Green, Professor of Law and Director, Workplace Law Program, Texas A&M UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2240492024-03-05T14:01:24Z2024-03-05T14:01:24ZPublishing Taylor Swift’s flight information: Is it stalking or protected free speech?<figure><img src="https://images.theconversation.com/files/579690/original/file-20240304-51556-7v39u5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Taylor Swift, flanked by security guards and Donna Kelce, mother of her boyfriend, Travis Kelce, appears at the Super Bowl in February 2024.</span> <span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v2/items/528216703c8548edb732773004b4aed9/preview/AP24043163440642.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Julio Cortez/AP</a></span></figcaption></figure><p><a href="https://www.forbes.com/profile/jack-sweeney/?sh=bc38f2170831">Jack Sweeney, a junior at the University of Central Florida</a>, says the First Amendment gives him the right to <a href="https://twitter.com/Jxck_Sweeney">publish publicly available</a> information about the flight paths of private jets owned by the rich and famous – including Taylor Swift. </p>
<p>Swift’s legal team – and <a href="https://www.newsweek.com/taylor-swift-jack-sweeney-elon-musk-private-jet-flights-1867604">many of her fans</a> – say that Sweeney posting the comings and goings of the singer’s private plane on social media is technological stalking.</p>
<p><a href="https://www.news-journalonline.com/story/news/2024/02/07/jack-sweeney-taylor-swift-legal-track-private-jets/72505276007/">Sweeney also tracks the private planes</a> owned or used by Elon Musk, Ron DeSantis, Mark Zuckerburg, Bill Gates, several Russian oligarchs and others, using public data from a global flight tracking website, TheAirTraffic.com. </p>
<p>I am an attorney and a <a href="https://lynngreenky.com/">scholar who has written</a> about the <a href="https://press.uchicago.edu/ucp/books/book/distributed/W/bo156864042.html">boundaries of the First Amendment</a>.</p>
<p>My advice to Mr. Sweeney: The First Amendment is a valuable ally, but its protections might not be available to you in this situation.</p>
<figure class="align-center ">
<img alt="A blonde woman wears a sequin bodysuit and holds a microphone in one hand. She raises her arm and shows off her muscles." src="https://images.theconversation.com/files/579688/original/file-20240304-26-axeg2b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/579688/original/file-20240304-26-axeg2b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=486&fit=crop&dpr=1 600w, https://images.theconversation.com/files/579688/original/file-20240304-26-axeg2b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=486&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/579688/original/file-20240304-26-axeg2b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=486&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/579688/original/file-20240304-26-axeg2b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=610&fit=crop&dpr=1 754w, https://images.theconversation.com/files/579688/original/file-20240304-26-axeg2b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=610&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/579688/original/file-20240304-26-axeg2b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=610&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Taylor Swift performs in Inglewood, Calif., on the Eras Tour on Aug. 7, 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1584249148/photo/taylor-swift-performs-during-the-eras-tour-concert-at-sofi-stadium.jpg?s=612x612&w=gi&k=20&c=MB2QbNqs8F6MnRY6xXg_qWlfsqEoV2g8xP-iXFfo9cM=">Allen J. Schaben/Los Angeles Times via Getty Images</a></span>
</figcaption>
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<h2>The arguments, explained</h2>
<p>Since December 2023, Swift’s attorneys have sent Sweeney <a href="https://www.news-journalonline.com/story/news/2024/02/07/jack-sweeney-taylor-swift-legal-track-private-jets/72505276007/">multiple cease-and-desist</a> letters demanding that he stop sharing the real-time and precise information about Swift’s plane’s location. The most recent letter that has been made public accuses Sweeney of “<a href="https://time.com/6692227/taylor-swift-cease-desist-letter-jack-sweeney-jet-tracker-emissions/">intentional, offensive, and outrageous conduct</a>” that threatens her safety and well-being. </p>
<p>Swift’s attorneys warn Sweeney that if he continues to publish her private travel information, she will seek legal action against him. </p>
<p>Sweeney, who is 21 years old, <a href="https://www.businessinsider.com/college-student-tracks-elon-musk-jet-forbes-30-under-30-2023-11">has gained fame, and perhaps a fortune</a>, over the past few years with this work. He has several hundred thousand followers across multiple social media platforms, including Instagram, Mastodon, Discord, Telegram, X – formerly known as Twitter – and Threads.</p>
<p>Sweeney argues that he is merely reposting public information as a matter of public interest. Sweeney also believes the public has a <a href="https://www.theverge.com/2024/2/6/24063220/taylor-swift-jet-public-data-social-media">right to know</a> that Swift and others are “<a href="https://www.bbc.com/news/world-us-canada-68248168">trying to hide the bad PR of (carbon) emissions</a>.” </p>
<p>Sweeney insists that his passion for the environment adds constitutional protection to his activities.</p>
<p>Sweeney is correct that the First Amendment offers robust protection to political speech. Over and over again, the Supreme Court has reminded Americans that protecting <a href="https://www.oyez.org/cases/2010/09-751">political speech is necessary for a strong democracy</a> – but even the shield of political speech has its limits.</p>
<p>The First Amendment does not protect <a href="https://www.oyez.org/cases/2002/01-1107">speech that could further a crime</a>. Speech that terrorizes another person, causing them to fear for their life, can be prosecuted. It is no defense that the speaker <a href="https://casetext.com/case/planned-parenthood-v-amer-coalition-of-life">was trying to make a political point</a>.</p>
<h2>The trail of digital data</h2>
<p>Technology makes the act of gathering information easier than ever before. </p>
<p>Corporations and tech-savvy private citizens like Sweeney can forage through the depths of the digital world, finding and publishing information that most people would rather keep confidential. </p>
<p>Today, <a href="https://www.whitecase.com/insight-our-thinking/us-data-privacy-guide">though there are some state and federal privacy protections in place</a>, anyone willing to pay for the data can usually learn about people’s <a href="https://www.nytimes.com/wirecutter/blog/state-of-privacy-laws-in-us/">buying habits</a> or even where they live, work and play. </p>
<p>Dozens of unregulated companies collect this personal information and <a href="https://www.nytimes.com/interactive/2019/12/19/opinion/location-tracking-cell-phone.html">log people’s movements via mobile phones</a>. They then store that information in large data files.</p>
<p>Sweeney claims his First Amendment right to publish information about others is as vast as his technological ability to gather personal information about celebrities and other high-profile people. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1756462148136403257"}"></div></p>
<h2>Tread carefully</h2>
<p><a href="https://www.justice.gov/ovw/stalking">The Department of Justice defines stalking</a> as “a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress.” </p>
<p>If a court determines that Sweeney is stalking Swift – which legally is considered conduct, not speech – his assertion that he is exercising his First Amendment right will not transform his act of publishing flight information into protected speech.</p>
<p>Sometimes, an action or a certain behavior is intended to communicate a message. For example, people have <a href="https://www.oyez.org/cases/1968/21">worn black armbands</a> in the <a href="https://www.aclu.org/documents/tinker-v-des-moines-landmark-supreme-court-ruling-behalf-student-expression">past to protest the Vietnam War</a>. People also have publicly <a href="https://www.oyez.org/cases/1988/88-155">burned the American flag</a> to show their disapproval of different political decisions or policies.</p>
<p>Wearing an armband and burning the American flag are not illegal activities, so the First Amendment protects the messages attached to these behaviors. </p>
<p>But if someone’s behavior used to communicate a message is unlawful or harmful, <a href="https://www.oyez.org/cases/1967/232">the First Amendment will not protect the speaker</a>. In other words, a messenger can be held responsible for any conduct that causes harm, even if the behavior was intended as a form of speech.</p>
<p>Sweeney has not been prosecuted or sued for stalking anybody, so no court has determined if he has indeed engaged in that behavior. But if, as Swift contends, <a href="https://www.news-journalonline.com/story/news/2024/02/06/jet-tracker-taylor-swift-ucf-jack-sweeney-social-media-twitter-x-reddit-mastadon-bluesky/72491332007/">Sweeney’s actions are simply a more sophisticated form of stalking</a>, the First Amendment will not transform his behavior into protected speech. </p>
<p>So, Mr. Sweeney, back to my advice: Tread carefully. </p>
<p>Technology is powerful, but so is people’s right to be free from terror and harm. The First Amendment may not be available to you to defend your behavior even if you cloak it in political speech.</p><img src="https://counter.theconversation.com/content/224049/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lynn Greenky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A college junior who has gained a following by sharing high-profile people’s private flight information says that he is sharing public information. Others, like Taylor Swift, say that he is stalking.Lynn Greenky, Professor Emeritus of Communication and Rhetorical Studies, Syracuse UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2235192024-02-20T15:17:04Z2024-02-20T15:17:04ZReligious diversity is exploding – here’s what a faith-positive Britain might actually look like<p>The future of the UK’s Inter Faith Network (IFN), a long-standing charity that promotes dialogue and cooperation between Britain’s religious groups, is in doubt after the government announced it was <a href="https://religionmediacentre.org.uk/rmc-briefings/devastating-outrageous-impending-closure-of-the-inter-faith-network/">withdrawing funding</a> for the group. Communities secretary Michael Gove has cited concerns that a member of the Muslim Council of Britain (MCB), with which the government has <a href="https://www.theguardian.com/politics/2009/mar/23/muslim-council-britain-gaza">suspended cooperation</a> since 2009, has been appointed an IFN trustee. </p>
<p>In response to Gove’s letter, the IFN <a href="https://www.theguardian.com/world/2024/feb/16/inter-faith-network-headed-for-closure-as-gove-minded-to-withdraw-funding">has said</a> it had never been advised “to expel the MCB from membership”. It also said that while the government might choose not to engage with the MCB, doing so “is not a sensible option open to the IFN if it is to achieve the purposes for which the government funds it in the first place”. </p>
<p>Founded in 1987, the IFN represents Baha’i, Buddhist, Christian, Hindu, Jain, Jewish, Muslim, Sikh and Zoroastrian faith groups. In the charity’s 37-year history, religious pluralism in the UK has grown exponentially – and is still growing despite an overall <a href="https://www.theguardian.com/world/2019/jul/11/uk-secularism-on-rise-as-more-than-half-say-they-have-no-religion">decline in religiosity</a>. </p>
<p>This underlines the importance of the <a href="https://theconversation.com/bringing-people-of-different-faiths-together-to-solve-the-worlds-problems-is-a-noble-goal-but-its-hard-to-know-what-it-achieves-170047">interfaith</a> dialogue the charity exists to promote. Indeed, the government-commissioned <a href="https://assets.publishing.service.gov.uk/media/64478b4f529eda00123b0397/The_Bloom_Review.pdf">Bloom review</a> of England’s growing religious pluralism, published in 2023, made a similar point when examining how the government might best acknowledge the value different faith groups bring to society.</p>
<figure class="align-center ">
<img alt="A crowd of women in colourful saris." src="https://images.theconversation.com/files/576736/original/file-20240220-20-io09l1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/576736/original/file-20240220-20-io09l1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/576736/original/file-20240220-20-io09l1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/576736/original/file-20240220-20-io09l1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/576736/original/file-20240220-20-io09l1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/576736/original/file-20240220-20-io09l1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/576736/original/file-20240220-20-io09l1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Performers take part in the Sikh festival of Vaisakhi in Gravesend.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/gravesend-apr-6-performers-take-part-1078636838">Shutterstock</a></span>
</figcaption>
</figure>
<h2>The UK’s increasingly diverse faith landscape</h2>
<p>In 2018, the Pew Research Centre published “Being Christian in Western Europe,” a survey of religion in <a href="https://www.pewresearch.org/religion/2018/05/29/being-christian-in-western-europe/">15 western European countries</a>. The majority of the adults surveyed in 14 of the 15 countries considered themselves “non-practicing Christians”. </p>
<p>The survey found that the UK had roughly three times as many non-practicing Christians (55%) than church-going Christians (18%). It concluded that the notion of Christian identity remains a meaningful religious, political and sociocultural marker. </p>
<p>It also noted that many people have “gradually drifted away from religion, stopped believing in religious teachings, or were alienated by scandals or church positions on social issues.”</p>
<p>The rising number of people who subscribe to no religion belies the fact that the Christian proportion of the population is changing too. In 2023, British journalist Tomiwa Owolade <a href="https://www.newstatesman.com/politics/religion/2023/03/future-christianity-britain-african-christian">reported</a> on how demographic shifts are reshaping churches across the UK. Between 1980 and 2015, churches saw a 19% rise in attendance by non-white worshippers. </p>
<p>“Without immigration,” he wrote, “the decline of Christianity would be even more profound: it is largely white British people who are abandoning their faith.” </p>
<figure class="align-center ">
<img alt="An interior shot of a modernist church in England." src="https://images.theconversation.com/files/576589/original/file-20240219-30-38pqkp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/576589/original/file-20240219-30-38pqkp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=412&fit=crop&dpr=1 600w, https://images.theconversation.com/files/576589/original/file-20240219-30-38pqkp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=412&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/576589/original/file-20240219-30-38pqkp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=412&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/576589/original/file-20240219-30-38pqkp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=518&fit=crop&dpr=1 754w, https://images.theconversation.com/files/576589/original/file-20240219-30-38pqkp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=518&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/576589/original/file-20240219-30-38pqkp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=518&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The St Francis of Assisi church on the Mackworth estate in Derby.</span>
<span class="attribution"><a class="source" href="https://unsplash.com/photos/church-altar-4COdbEnGCmA">Rachael Cox|Unsplash</a></span>
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<p>Recent migration from <a href="https://www.churchtimes.co.uk/articles/2023/27-october/news/uk/chinese-church-is-fastest-growing-in-the-uk-study-reveals">Hong Kong</a> has seen the Chinese Christian community in the UK grow substantially. As of 2023, there are about 115,000 Chinese Christians worshipping at over 200 churches across the UK. </p>
<p>Newly arrived Chinese Christians bring with them a belief in the importance of Bible reading. They are strengthening Church of England congregations in cities including Manchester, Liverpool and Bristol. </p>
<p>This highlights how migrant populations in the UK and more broadly in western Europe wield <a href="https://theconversation.com/tarry-awhile-how-the-black-spiritual-tradition-of-waiting-expectantly-could-enrich-your-approach-to-lent-222007">increasing influence</a> in terms of spirituality and belief. Between 2011 and 2021, the proportion of the population of England and Wales that identifies as Muslim has grown, from 4.8% (2.71 million people) to 6.5% <a href="https://mcb.org.uk/2021-census-as-uk-population-grows-so-do-british-muslim-communities/">(3.87 million)</a>. </p>
<p>Other fast-growing religious groups in the UK include Shamanism, whose followers have increased from 650 people in 2011 to <a href="https://www.economist.com/britain/2023/02/09/shamanism-is-britains-fastest-growing-religion">at least 8,000 in 2021</a>. Its emphasis on all things in nature – from people to the environment – being treated with dignity and respect distinctively appeals to the growing number of people in the UK who live with <a href="https://theconversation.com/religious-communities-can-make-the-difference-in-winning-the-fight-against-climate-change-172192">climate anxiety</a>. </p>
<h2>How the government engages with faith groups</h2>
<p>Until now, UK politicians have largely only engaged with local faith groups in public when it has been politically expedient to do so. A primary motivation has often been to not be criticised by detractors for excluding communities on the basis of religion. This approach is underpinned by an Enlightenment theory of secularism, which sees engaging with issues of religion as unworthy of the looming headaches such engagement might cause. </p>
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<img alt="People kneel down in a carpeted space with tall windows." src="https://images.theconversation.com/files/576590/original/file-20240219-22-yr113h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/576590/original/file-20240219-22-yr113h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/576590/original/file-20240219-22-yr113h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/576590/original/file-20240219-22-yr113h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/576590/original/file-20240219-22-yr113h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/576590/original/file-20240219-22-yr113h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/576590/original/file-20240219-22-yr113h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Worshippers in prayer in the Regents Park Central Mosque, London.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-england-february-18th-2009-crowd-1704858379">Shutterstock</a></span>
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<p>The 2023 Bloom review, by contrast, calls for government to build constructive relationships with faith groups. “It should be the government’s responsibility,” Bloom writes, “to equip all civil and public servants with the basic factual knowledge to be able to recognise and understand the diverse religious life of the population.” </p>
<p>Appointed in 2019 by Boris Johnson, who was then prime minister, Colin Bloom was commissioned to explore what the government could do to better acknowledge and support the contribution faith groups make to society. He investigated how to better promote shared values and tackle harmful practices and how to promote both freedom of religion and freedom of speech. He also looked at how government officials might improve their faith literacy.</p>
<p>To be <a href="https://bristoluniversitypress.co.uk/religion-and-belief-literacy">faith literate</a> is to understand how belief systems differ and how those distinct from your own shape other people’s attitudes, values and experiences. In a bid to boost equality, Bloom recommends that government workplaces and educational settings adopt the term “faith-sensitive”. </p>
<p>As opposed to the flattening out of difference that a “faith-blind” approach can take, promoting faith-sensitivity encourages people in positions of authority to acknowledge, understand and treat with respect diverse belief systems. </p>
<p>The language the UK government uses on faith-related subjects matters. It models – for everyone living in the UK – how to best engage with <a href="https://theconversation.com/glasgows-museum-of-religion-has-been-saved-from-closure-heres-why-its-important-for-multicultural-britain-180002">diverse manifestations of belief</a>. </p>
<p>I would argue that Bloom’s emphasis on a faith-sensitive government approach does not go far enough. It implies that the government’s priority should be to not cause offense. Even better would be a “faith-positive” approach that actively ascribes value to the contributions faith communities can make to everyday British life.</p>
<p>Back in 2001, the IFN <a href="https://www.interfaith.org.uk/uploads/ar2002.pdf">said</a>, “Greater awareness about the faith of others is crucial as we enter the 21st century in the UK because ignorance is a major contributor to prejudice and even to conflict.” Two decades on, the shocking rises in incidents of <a href="https://www.theguardian.com/news/2024/feb/15/huge-rise-in-antisemitic-abuse-in-uk-since-hamas-attack-says-charity">antisemitism</a> and <a href="https://www.itv.com/news/2023-11-09/i-was-terrified-islamophobic-incidents-up-by-600-in-uk-since-hamas-attack">Islamophobia</a>, in recent months, point to how urgently that remains true. </p>
<p>Early 20th century English writer G.K. Chesterton once affectionately wrote, “Let your religion be less a theory and more a love affair.” He was offering a framework to help British Christians better understand their faith. A similarly faith-positive approach to all of Britain’s belief systems would both recognise and value quite what people of faith can bring to wider British society.</p><img src="https://counter.theconversation.com/content/223519/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Christopher Wadibia receives funding from a postdoctoral research fellowship specialising in race, theology, and religious studies based at Pembroke College, University of Oxford.</span></em></p>The language the UK government uses on faith-related subjects matters. It models – for everyone living in the UK – how to best engage with diverse manifestations of belief.Christopher Wadibia, Junior Research Fellow in Theology, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2213302024-01-18T16:48:52Z2024-01-18T16:48:52ZHow AI threatens free speech – and what must be done about it<figure><img src="https://images.theconversation.com/files/569817/original/file-20240117-21-c4rmno.jpg?ixlib=rb-1.1.0&rect=162%2C108%2C5835%2C3899&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/girl-pointing-finger-on-screen-smartphone-780955027">Dragana Gordic/Shutterstock</a></span></figcaption></figure><p>Headlines about the threats of artificial intelligence (AI) tend to be full of <a href="https://www.nytimes.com/2023/11/21/us/politics/ai-drones-war-law.html">killer robots</a>, or fears that when they’re not on killing sprees, these same robots will be <a href="https://www.forbes.com/sites/elijahclark/2023/08/18/unveiling-the-dark-side-of-artificial-intelligence-in-the-job-market/?sh=151014456652">hoovering up human jobs</a>. But a serious danger which gets surprisingly little media attention is the impact these new technologies are likely to have on freedom of expression. And, in particular, how they’re able to undermine some of the most foundational legal tenets that protect free speech.</p>
<p>Every time a new communications technology sweeps through society, it disrupts the balance that has previously been struck between social stability and <a href="https://www.hrw.org/news/2016/03/25/digital-disruption-human-rights">individual liberty</a>. </p>
<p>We’re currently living through this. Social media has made new forms of community networking, surveillance and public exposure possible, which have led to increased <a href="https://www.forumdisuguaglianzediversita.org/wp-content/uploads/2021/05/Social-Media-Political-Polarization-and-Political-Disinformation-Literature-Review.x28591.pdf">political polarisation</a>, the rise of global populism and an epidemic of <a href="https://www.sciencedirect.com/science/article/pii/S1054139X20301075">online harassment and bullying</a>. </p>
<p>Amid all this, free speech has become a totemic issue in <a href="https://www.jstor.org/stable/j.ctv199td7w">the culture wars</a>, with its status both boosted and threatened by the societal forces unleashed by social media platforms. </p>
<p>Yet free speech debates tend to be caught up with arguments about “cancel culture” and the “woke” mindset. This risks overlooking the impact technology is having on how freedom of expression laws actually work. </p>
<p>In particular, the way that AI gives governments and tech companies the ability to censor expression with increasing ease, and at great scale and speed. This is a serious issue that I explore in my new book, <a href="https://www.bloomsbury.com/uk/future-of-language-9781350278851/">The Future of Language</a>. </p>
<h2>The delicate balance of free speech</h2>
<p>Some of the most important protections for <a href="https://www.coe.int/en/web/human-rights-convention/expression">free speech in liberal democracies</a> such as the UK and the US rely on technicalities in how the law responds to the real-life actions of everyday citizens.</p>
<p>A key element of the current system relies on the fact that we, as autonomous individuals, have the unique ability to transform our ideas into words and communicate these to others. This may seem a rather unremarkable point. But the way the law currently works is based on this simple assumption about human social behaviour, and it’s something that AI threatens to undermine. </p>
<p>Free speech protections in many liberal societies rule against the use of <a href="https://dictionary.law.com/Default.aspx?selected=1606">“prior restraint”</a> – that is, blocking an utterance before it’s been expressed. </p>
<p>The government, for instance, should not be able to prevent a newspaper from publishing a particular story, although it can prosecute it for doing so after publication if it thinks the story is breaking any laws. The use of prior restraint is already widespread in countries such as <a href="https://www.cecc.gov/prior-restraints">China</a>, which have very different attitudes to the regulation of expression. </p>
<p>This is significant because, despite what tech libertarians such as <a href="https://www.theguardian.com/technology/2022/apr/14/how-free-speech-absolutist-elon-musk-would-transform-twitter">Elon Musk may assert</a>, no society in the world allows for absolute freedom of speech. There’s always a balance to be struck between protecting people from the real harm that language can cause (for example by defaming them), and safeguarding people’s right to express conflicting opinions and criticise those in power. Finding the right balance between these is one of the most challenging decisions a society is faced with. </p>
<h2>AI and prior restraint</h2>
<p>Given that so much of our communication today is mediated by technology, it is now extremely easy for AI assistance to be used to enact prior restraint, and to do so at great speed and massive scale. This would create circumstances in which that basic human ability to turn ideas into speech could be compromised, as and when a government (or social media exec) wishes it to be.</p>
<p>The UK’s recent <a href="https://www.legislation.gov.uk/ukpga/2023/50/enacted">Online Safety Act</a>, for instance, as well plans in the US and Europe to use <a href="https://www.liberties.eu/en/stories/uploa-filter-back-eu-2020/18938">“upload filtering”</a> (algorithmic tools for blocking certain content from being uploaded) as a way of screening for offensive or illegal posts, all encourage social media platforms to use AI to censor at source.</p>
<p>The rationale given for this is a practical one. With such a huge quantity of content being uploaded every minute of every day, it becomes extremely challenging for teams of humans to monitor everything. AI is a fast and far less expensive alternative. </p>
<p>But it’s also automated, unable to bring real-life experience to bear, and its decisions are rarely subject to public scrutiny. The consequences of this are that AI-driven filters can often lean towards censoring content which is neither illegal or offensive. </p>
<figure class="align-center ">
<img alt="Microphone on a desk in front of the classroom." src="https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Technology and free speech have long clashed.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/microphone-on-desk-front-classroom-educational-1446870362">Mind Pro Studio/Shutterstock</a></span>
</figcaption>
</figure>
<p>Free speech as we understand it today relies on specific legal processes of protection that have developed over centuries. It’s not an abstract idea, but one grounded in very particular social and legal practices. </p>
<p>Legislation that encourages content regulation by automation effectively dismisses these processes as technicalities. In doing so, it risks jeopardising the entire institution of free speech.</p>
<p>Free speech will always be an idea sustained by ongoing debate. There’s never a settled formula for defining what should be outlawed and what not. This is why determining what counts as acceptable and unacceptable needs to take place in open society and be subject to appeal.</p>
<p>While there are indications that some governments are beginning to <a href="https://www.opensocietyfoundations.org/newsroom/open-society-and-other-funders-launch-new-initiative-to-ensure-ai-advances-the-public-interest">acknowledge this</a> in planning for the future of AI, it needs to be centre stage in all such plans. </p>
<p>Whatever role AI may play in helping to monitor online content, it mustn’t constrain our ability to argue among ourselves about what sort of society we’re trying to create.</p><img src="https://counter.theconversation.com/content/221330/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Philip Seargeant does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Content moderation by automated systems could be a form of prior restraint.Philip Seargeant, Senior Lecturer in Applied Linguistics, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2210762024-01-18T13:27:58Z2024-01-18T13:27:58ZNicaragua released imprisoned priests, but repression is unlikely to relent – and the Catholic Church remains a target<figure><img src="https://images.theconversation.com/files/569921/original/file-20240117-20-1jrits.jpg?ixlib=rb-1.1.0&rect=4%2C1%2C1017%2C656&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A priest and Catholic worshippers pray in front of an image of 'Sangre de Cristo,' burned in a fire on July 2020, at the Metropolitan Cathedral in Managua.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/priest-and-catholic-faithful-pray-in-front-of-an-image-of-news-photo/1242786617?adppopup=true">Oswaldo Rivas/AFP via Getty Images</a></span></figcaption></figure><p>Bad news has been the norm for Catholics in Nicaragua, where clergy and church groups have been frequent targets of a wide-ranging crackdown for years. But on Jan. 14, 2024, they received a happy surprise: The government unexpectedly released two bishops, 15 priests and two seminary students from prison and <a href="https://www.washingtonpost.com/world/2024/01/14/nicaragua-bishop-rolando-alvarez/">expelled them</a> to the Vatican.</p>
<p>Those released included <a href="https://www.uscirf.gov/religious-prisoners-conscience/forb-victims-database/rolando-alvarez">Bishop Rolando Álvarez</a>, a high-profile political prisoner who was detained in 2022 for criticizing the government and then sentenced to 26 years in prison for <a href="https://confidencial.digital/english/nicaraguan-bishop-rolando-alvarez-receives-26-year-sentence/">alleged treason</a>.</p>
<p><a href="https://confidencial.digital/english/dictatorship-banishes-monsignor-rolando-alvarez-and-18-other-religious-political-prisoners-to-the-vatican/">They also included</a> priests <a href="https://www.reuters.com/world/americas/nicaragua-arrests-four-more-priests-intensifies-crackdown-catholic-church-2023-12-30/">detained by</a> President Daniel Ortega’s government in late December 2023 <a href="https://www.vaticannews.va/en/church/news/2024-01/priest-arrested-in-nicaragua-following-mass-on-new-year-s-eve.html">for expressing solidarity</a> with Álvarez and other political prisoners. Days later, Pope Francis <a href="https://www.nytimes.com/2024/01/01/world/europe/nicaragua-pope-francis-church.html">criticized the regime</a> in his New Year’s message and then <a href="https://confidencial.digital/english/pope-francis-reiterates-concerns-about-crisis-in-nicaragua/">called for</a> “respectful diplomatic dialogue.”</p>
<p>Nearly six years after <a href="https://infobuero-nicaragua.org/wp-content/uploads/2020/09/PUBLICADO-200908.-FUNIDES.-Nicaragua-en-movimiento-2016-2020-SEI_2020_01-2.pdf">mass protests erupted</a> against Ortega and then were brutally repressed, these prisoner releases offer some hope to Nicaragua’s opposition. As <a href="https://www.global.ucsb.edu/people/kai-m-thaler">my research</a> <a href="https://www.taylorfrancis.com/chapters/oa-edit/10.4324/9781003197614-16/nicaragua-rachel-schwartz-kai-thaler">has shown</a>, however, <a href="https://drive.google.com/file/d/1IICx95ZZzKjfHqiU-oVEityK70vwBv5f/view?usp=sharing">the Ortega regime is unrelenting</a> in trying to <a href="https://doi.org/10.1353/jod.2022.0023">retain power</a>, which suggests this is not necessarily a turning point. In fact, the government reportedly <a href="https://confidencial.digital/nacion/dictadura-secuestra-al-sacerdote-ezequiel-buenfil-tras-el-destierro-de-19-religiosos/">took yet another priest into custody</a> on Jan. 16.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/569652/original/file-20240116-25-c9w6ji.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Several rows of people seated in church pews, all looking ahead." src="https://images.theconversation.com/files/569652/original/file-20240116-25-c9w6ji.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569652/original/file-20240116-25-c9w6ji.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569652/original/file-20240116-25-c9w6ji.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569652/original/file-20240116-25-c9w6ji.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569652/original/file-20240116-25-c9w6ji.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569652/original/file-20240116-25-c9w6ji.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569652/original/file-20240116-25-c9w6ji.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Nicaraguans attend mass in San Juan de Oriente on June 24, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-attend-a-mass-during-celebrations-in-honour-of-san-news-photo/1259026822?adppopup=true">Stringer/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Why target the church?</h2>
<p>Ortega first led Nicaragua from 1979 to 1990, after his left-wing revolutionary organization, the Sandinista National Liberation Front, or FSLN, spearheaded the overthrow of dictator Anastasio Somoza Debayle. In the 1980s, the <a href="https://doi.org/10.16993/ibero.38">FSLN clashed with the Vatican</a> and church hierarchy over the group’s socialist politics, even as many <a href="https://doi.org/10.2307/3712105">poorer Nicaraguan Catholics embraced them</a>.</p>
<p>When Ortega took office again in 2007, however, he did so <a href="https://www.jstor.org/stable/20788575">with the blessing of Christian leaders</a>. During the 2006 elections, he had turned to <a href="https://doi.org/10.16993/ibero.38">alliances with Catholic</a> and <a href="https://doi.org/10.1007/s41603-017-0005-6">Protestant elites</a> to <a href="https://doi.org/10.1353/jod.2017.0032">return to power</a> in exchange for <a href="https://doi.org/10.1177/0094582X08326020">adopting</a> conservative social policies like <a href="https://doi.org/10.1016/S0140-6736(09)61545-2">banning abortion</a>.</p>
<p>Over the next decade, <a href="https://doi.org/10.5129/001041522X16281740895086">Ortega remained popular</a>, presiding over economic growth in collaboration <a href="https://doi.org/10.15517/aeca.v43i0.31556">with business leaders</a> and developing new public infrastructure and services.</p>
<p>Yet he and the <a href="https://doi.org/10.1111/j.1548-2456.2010.00099.x">FSLN party he controlled</a> were also <a href="https://doi.org/10.1017/lap.2019.64">consolidating power</a> and <a href="https://search.worldcat.org/title/regimen-de-ortega-una-nueva-dictadura-familiar-en-el-continente/oclc/967515148">governing in an increasingly authoritarian</a> manner. Ortega won <a href="https://www.cartercenter.org/resources/pdfs/peace/americas/nicaragua_2011_report_post.pdf">reelection in 2011</a> and then retained power in <a href="http://doi.org/10.1353/jod.2017.0032">fraudulent elections</a> in 2016. Opposition candidates were disqualified, and Ortega’s running mate was his wife, <a href="https://www.nytimes.com/2016/10/31/world/americas/nicaragua-daniel-ortega-rosario-murillo-house-of-cards.html">Rosario Murillo</a>.</p>
<p><a href="https://doi.org/10.3917/pal.112.0083">Unexpectedly</a>, Ortega’s popularity and his relationship with the church came crashing down in April 2018, when the government announced cutbacks in social security benefits for retirees. Nicaraguans from <a href="https://doi.org/10.5129/001041522X16281740895086">all backgrounds</a> <a href="https://dialnet.unirioja.es/servlet/articulo?codigo=7549585">took to the streets</a>, and Ortega and Murillo responded with a <a href="https://gieinicaragua.org/#section04">furious crackdown</a>, unleashing police and pro-government paramilitaries <a href="https://www.amnesty.org/en/documents/amr43/9213/2018/en/">armed with military-grade weapons</a>.</p>
<p>Cathedrals and churches <a href="https://www.ncronline.org/news/bishops-journalists-attacked-church-nicaragua">tried to</a> <a href="https://www.proquest.com/openview/41597a7a2b9356e668ff2b579dc7cb1d/1">offer refuge</a> to protesters, but <a href="https://www.oas.org/en/iachr/jsForm/?File=/en/iachr/media_center/preleases/2021/302.asp">over 300 people were killed</a>. Church leaders facilitated a national dialogue between the government and an opposition coalition, <a href="https://www.ncronline.org/news/nicaraguan-bishops-end-role-mediators-national-dialogue">but withdrew</a> as <a href="https://www.amnesty.org/en/latest/news/2018/06/nicaragua-aumenta-la-violencia-y-la-represion-estatal-a-pesar-de-los-multiples-esfuerzos-de-dialogo/">repression continued</a>.</p>
<p>When popular Catholic leaders <a href="http://d-scholarship.pitt.edu/38768/">criticized violence</a> against protesters, the regime began viewing the church <a href="https://www.nytimes.com/2018/07/22/world/americas/nicaragua-protests-catholic-church.html">as a rival</a> threatening Ortega’s waning legitimacy. Police, paramilitaries and FSLN supporters started <a href="https://english.elpais.com/international/2023-12-23/exiles-arrests-and-740-attacks-nicaragua-redoubles-its-persecution-of-the-catholic-church.html">harassing and attacking</a> clergy and <a href="https://apnews.com/article/virus-outbreak-religion-arson-rosario-murillo-latin-america-82bb721aa3ec25e4af34a26e75568599">Catholic institutions</a>.</p>
<p>In 2019, the pope <a href="https://apnews.com/general-news-9016f14a1a9b476ab5cb1d61397fc273">recalled Silvio Báez</a>, the auxiliary bishop of Managua and a prominent critic of Ortega, from Nicaragua. Yet other bishops and priests still found themselves <a href="https://www.nbcnews.com/news/latino/nicaraguan-president-daniel-ortega-goes-catholic-church-latest-effort-rcna44618">in the regime’s crosshairs</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/569647/original/file-20240116-15-mbn4il.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two people in baseball hats hold posters with pictures of a man in clerical robes." src="https://images.theconversation.com/files/569647/original/file-20240116-15-mbn4il.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569647/original/file-20240116-15-mbn4il.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569647/original/file-20240116-15-mbn4il.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569647/original/file-20240116-15-mbn4il.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569647/original/file-20240116-15-mbn4il.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569647/original/file-20240116-15-mbn4il.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569647/original/file-20240116-15-mbn4il.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Nicaraguan citizens in Costa Rica demonstrate in front of the Nicaraguan Embassy in August 2022 to protest the detention of Bishop Rolando Alvarez.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/nicaraguan-citizens-hold-a-demonstration-in-front-of-the-news-photo/1242597067?adppopup=true">Oscar Navarrete/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>Some <a href="https://apnews.com/article/nicaragua-catholic-priests-exile-ortega-f5ae508a4295f7ae5b359f96064eea46">fled into exile</a> or were blocked <a href="https://confidencial.digital/nacion/sacerdote-desterrado-silencio-de-los-obispos-no-ha-detenido-la-persecucion/">from entering</a> Nicaragua if they traveled abroad. Others who stayed were kept under surveillance. Priests who expressed support for political prisoners or continued to criticize the regime, even in vague terms, could be <a href="https://www.reuters.com/world/americas/catholic-clergy-report-surveillance-beatings-amid-nicaraguas-crackdown-2023-07-07/">arrested or beaten</a>. </p>
<p>The government expelled 12 formerly detained priests to the Vatican <a href="https://www.reuters.com/world/americas/nicaragua-sends-catholic-priests-rome-after-talks-with-vatican-2023-10-19/">in October 2023</a> after what the regime called “<a href="https://www.reuters.com/world/americas/nicaragua-sends-catholic-priests-rome-after-talks-with-vatican-2023-10-19/">fruitful conversations</a>.” But Álvarez, the highest-profile political prisoner, was still held by the government and was stripped of his citizenship after <a href="https://apnews.com/article/politics-united-states-government-caribbean-daniel-ortega-rosario-murillo-c7930c6340472867148ca7e79e09f1eb">refusing to go into exile</a> in February 2023.</p>
<h2>Broader patterns of repression</h2>
<p>Attacks on the church <a href="https://www.usip.org/publications/2022/10/nicaragua-crackdown-religious-actors-further-imperils-return-democracy">are a symptom</a> of the Ortega regime’s absolute intolerance for dissent.</p>
<p>With <a href="https://www.hrw.org/world-report/2024/country-chapters/nicaragua">over 3,000 nongovernmental organizations</a> <a href="https://theconversation.com/nicaragua-has-kicked-out-hundreds-of-ngos-even-cracking-down-on-catholic-groups-like-nuns-from-mother-teresas-order-190222">shut down</a> since 2018, the church has become Nicaragua’s only <a href="https://www.nytimes.com/2022/08/23/world/americas/nicaragua-catholic-church-daniel-ortega.html">major nonstate institution</a> with nationwide reach. </p>
<p>In a country where <a href="https://www.state.gov/reports/2022-report-on-international-religious-freedom/Nicaragua/#report-toc__section-1">over 40% of the people</a> identify as Catholic, many normally turn to the church in times <a href="https://popolna.org/realidades-municipales-presentadas-en-informe-de-red-local/">of need</a>. Suppressing Catholic institutions means Nicaraguans must turn to the state for aid, which <a href="https://www.divergentes.com/nicaragua-un-espia-en-cada-esquina/">monitors citizens</a> and <a href="https://doi.org/10.1057/pol.2013.10">has been accused of denying</a> services for perceived disloyalty.</p>
<p><a href="https://www.vozdeamerica.com/a/universidad-de-jesuitas-en-nicaragua-suspende-operaciones-tras-ser-acusada-de-ser-un-centro-de-terrorismo-/7227873.html">At least 27</a> Catholic and <a href="https://www.ohchr.org/en/news/2023/09/group-experts-nicaragua-finds-escalating-persecution-against-dissent-and-crackdown?sub-site=HRC">secular universities</a> have also <a href="https://www.aljazeera.com/news/2023/8/17/nicaragua-seizes-catholic-university-accused-of-being-centre-of-terrorism">been closed or seized</a> by the government, as have <a href="https://latamjournalismreview.org/news/daniel-ortegas-war-against-journalism-54-media-outlets-have-been-shut-down/">more than 50</a> <a href="https://www.reuters.com/world/americas/nicaragua-shuts-catholic-radio-stations-led-by-bishop-critical-regime-2022-08-02/">media outlets</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/569651/original/file-20240116-22672-62jpa1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="T-shirts with pictures of a man in a blue jacket making a 'V' sign with his fingers, and shirts that say 'FSLN,' hang on display outside." src="https://images.theconversation.com/files/569651/original/file-20240116-22672-62jpa1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569651/original/file-20240116-22672-62jpa1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569651/original/file-20240116-22672-62jpa1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569651/original/file-20240116-22672-62jpa1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569651/original/file-20240116-22672-62jpa1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569651/original/file-20240116-22672-62jpa1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569651/original/file-20240116-22672-62jpa1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">T-shirts depicting Nicaraguan President Daniel Ortega for sale in Managua in July 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/shirts-depicting-nicaraguan-president-daniel-ortega-are-news-photo/1539099812?adppopup=true">Oswaldo Rivas/AFP via Getty Images</a></span>
</figcaption>
</figure>
<p>The government’s decision to expel clergy on Jan. 14 is also in line with its tendency to either <a href="https://www.articulo66.com/2022/09/29/estos-son-los-nicaraguenses-desterrados-por-el-regimen-ortega-murillo-en-lo-que-va-de-2022/">block opponents’ reentry</a> into Nicaragua or force them <a href="https://confidencial.digital/english/husband-and-son-of-former-miss-nicaragua-director-expelled-and-banished/">into exile</a>. In many cases, Nicaragua has then revoked critics’ citizenship, as when it expelled 222 political prisoners <a href="https://www.theguardian.com/world/2023/feb/09/nicaragua-frees-222-political-prisoners-flies-to-us">in February 2023</a> to the United States.</p>
<p>When imprisonment or threats have not shaken critics’ resolve, Ortega and Murillo appear to have decided that <a href="https://www.lawfaremedia.org/article/nicaraguas-political-repression-will-continue-despite-prisoner-release">keeping them abroad is best</a>. Not only does this reduce the risks of anti-regime action in Nicaragua, but it may diminish international scrutiny of <a href="https://www.hrw.org/news/2022/03/10/government-critics-languish-nicaraguan-prisons">political prisoners’ mistreatment</a>.</p>
<h2>Cautious criticism</h2>
<p>Since 2018, repression in Nicaragua has come in waves, with the brutal violence that repressed the protests shifting toward <a href="https://www.hrw.org/world-report/2024/country-chapters/nicaragua">an environment</a> of <a href="https://confidencial.digital/english/five-years-of-police-state-in-nicaragua-ban-on-assembly-protests-free-speech-and-elections/">constant surveillance</a>, legal actions against independent institutions and opponents, and periodic arrests. Moments of seeming calm, however, have often been followed by <a href="https://www.amnesty.org/en/documents/amr43/4631/2021/en/">harsh crackdowns</a>, such as <a href="https://www.hrw.org/news/2021/09/20/nicaragua-trumped-charges-against-critics">a slew of arrests</a> <a href="https://doi.org/10.1353/jod.2022.0023">ahead of the 2021 elections</a>.</p>
<p>Even as repression has mounted, the Vatican has <a href="https://www.voanews.com/a/pope-worried-about-nicaraguan-bishop-s-prison-sentence-/6959873.html">been cautious</a> about criticizing Ortega and Murillo, and some Nicaraguans and <a href="https://www.pillarcatholic.com/p/why-is-pope-francis-quiet-about-nicaragua">Catholics abroad</a> <a href="https://cruxnow.com/church-in-the-americas/2022/08/nicaraguan-ngos-urge-pope-francis-to-speak-out-on-oppression">have urged the pope to do more</a>. Yet the Vatican’s restraint has not appeared to decrease <a href="https://confidencial.digital/english/ortega-represses-151-priests-and-nuns-imprisonment-banishment-and-exile/">threats against clergy</a> or limits on activities <a href="https://www.reuters.com/world/americas/nicaragua-police-ban-catholic-procession-church-crackdown-2022-08-12/">like religious processions</a>.</p>
<p>In January 2024, however, Francis pointedly <a href="https://confidencial.digital/english/pope-francis-reiterates-concerns-about-crisis-in-nicaragua/">called attention to the crisis</a> during two speeches, days after <a href="https://www.reuters.com/world/americas/nicaragua-arrests-four-more-priests-intensifies-crackdown-catholic-church-2023-12-30/">a dozen priests</a> were arrested. One week later came the release of Álvarez and his colleagues – free to leave Nicaragua, but not to come back. </p>
<p>Catholic leaders remain Nicaragua’s <a href="https://confidencial.digital/nacion/obispos-alvarez-brenes-y-baez-con-mas-alta-opinion-favorable-en-nicaragua/">most popular figures</a>, according to independent polling. This makes them a continued threat to Ortega and Murillo’s quest for <a href="https://confidencial.digital/nacion/ortega-a-nicas-en-redes-sociales-si-publican-contra-mi-van-presos/">total control</a>. Ezequiel Buenfil Batún, the priest detained Jan. 16, belonged to a religious order <a href="https://confidencial.digital/nacion/dictadura-secuestra-al-sacerdote-ezequiel-buenfil-tras-el-destierro-de-19-religiosos/">whose legal status was revoked</a> that same day, along with several other nongovernment organizations.</p>
<p>As many Nicaraguans <a href="https://confidencial.digital/english/luis-haug-nicaraguans-feel-they-are-hitting-rock-bottom/">lose hope</a> of conditions improving and dozens of political prisoners <a href="https://confidencial.digital/nacion/dictadura-mantiene-tortura-a-presos-politicos-que-realizaron-huelga-de-hambre-en-la-modelo/">remain jailed</a>, any positive news like the priests’ release is welcome. But it holds no guarantees of broader change ahead.</p><img src="https://counter.theconversation.com/content/221076/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kai M. Thaler does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>When President Daniel Ortega returned to power in 2006, church figures supported him. Violent repression after the 2018 protests has soured the relationship and made clergy targets for intimidation.Kai M. Thaler, Assistant Professor of Global Studies, University of California, Santa BarbaraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2206492024-01-10T16:59:43Z2024-01-10T16:59:43ZIn Sweden, burning Qur'ans threaten to send the country’s history of tolerance up in smoke<figure><img src="https://images.theconversation.com/files/568129/original/file-20231225-19-xykc6z.jpg?ixlib=rb-1.1.0&rect=0%2C365%2C2160%2C1529&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Danish-Swedish extremist and politician Rasmus Paludan as he burns a Quran in front of the Turkish embassy in Stockholm on January 21, 2023.
</span> <span class="attribution"><a class="source" href="https://fr.wikipedia.org/wiki/Rasmus_Paludan#/media/Fichier:Rasmus_Paludan_burning_the_Koran_2023-01-21_(2).jpg">Tobias Hellsten/Wikipedia </a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></span></figcaption></figure><p>Long known for its multiculturalism, Sweden has recently witnessed unprecedented tensions accompanied by palpable and, alas, justified concerns about the safety of Swedish nationals abroad.</p>
<p>Last summer, demonstrators in <a href="https://foreignpolicy.com/2023/07/28/sweden-quran-nato-iran-iraq-russia/">Ankara, Beirut, Islamabad and Jakarta</a> set fire to the Swedish flag. In <a href="https://www.lemonde.fr/en/religions/article/2023/07/20/swedish-embassy-in-baghdad-stormed-and-set-on-fire-in-protests-over-quran-burning_6060045_63.html">Iraq</a> and <a href="https://www.timesofisrael.com/molotov-cocktail-thrown-at-swedish-embassy-in-beirut-amid-quran-burning-tensions/">Lebanon</a>, protests also boiled over, with demonstrators alternately throwing cocktail molotovs and storming the country’s embassies. And in Brussels on 17 October, two fans of the Swedish football team who were in the city to watch the Belgium-Sweden match were killed by a man who <a href="https://www.bbc.com/news/world-europe-67195715">claimed to have been inspired by the Islamic State</a>.</p>
<p>Since last year’s events, the Swedish government has advised its citizens to exert caution while travelling abroad, a shock for a country that has long been identified with relatively generous migration policies and a concern for intercultural dialogue.</p>
<h2>Anti-Islam provocations and threats of violence</h2>
<p>The upsurge in hostility has one cause: burnings of the Qu'ran. Although the sacred text first went up in smoke in <a href="https://www.euronews.com/2019/04/25/denmark-s-quran-burning-politician-gathering-support-for-election-candidacy">Denmark in 2010</a>, desecrations have since been more frequent in Sweden. The trend’s initiator is a 41-year old Danish-Swedish dual citizen, <a href="https://www.theguardian.com/world/2023/jan/27/burning-of-quran-in-stockholm-funded-by-journalist-with-kremlin-ties-sweden-nato-russia">Rasmus Paludan</a>, trained as a lawyer. The leader of a Danish party called “Hard Line” (<em>Hart Stram</em>), Paludan emerged a few years ago as a critic of the “Islamisation of European societies”. <em>Hart Stram</em> won 1.8% of the vote in the 2019 Danish parliamentary elections, but was excluded for manipulating the lists of signatures required to file candidacies.</p>
<p>In response, Paludan turned to Sweden, where immigration-related issues have increasingly stirred controversy in the past decade. In 2020, he burned <a href="https://www.theguardian.com/world/2020/aug/29/riots-rock-malmo-after-far-right-swedish-activists-burn-quran">a Qur'an in Rosengården</a>, a district of Malmö, where almost 90% of the inhabitants are of foreign origin. Paludan’s actions sparked an <a href="https://www.nst.com.my/world/world/2020/08/620385/riot-sweden-amidst-quran-burning-rally">upsurge in violence</a>. While he was banned from entering the country, as a dual national he was able to continue his activities, and even attracted emulators, such as Iraqi refugee <a href="https://www.theguardian.com/world/2023/jul/02/swedish-government-condemns-islamophobic-burning-of-a-quran">Salwan Momika</a>. </p>
<p>Together, Paludan, Momika and their imitators target sites with the explicit aim of exacerbating tensions, including places of Muslim worship, neighbourhoods with a high concentration of immigrants and in front of Muslim countries’ embassies. In the spring of 2022, Paludan embarked on a series of desecrations across Sweden that he dubbed an “election tour”. These led to violent clashes in several towns and a deterioration in the country’s image in the Middle East. An umpteenth provocation in the vicinity of the Turkish embassy in January 2023 provoked a virulent reaction from Ankara, to the point of compromising the first item on Sweden’s foreign policy agenda: NATO membership.</p>
<p>Indeed, the Turkish Parliament reacted by calling for Sweden’s application – which had been formalised seven months earlier – <a href="https://www.letemps.ch/monde/adhesion-de-la-suede-a-l-otan-un-coran-brule-a-stockholm-seme-la-zizanie">to be rejected</a>. For several days, Sweden’s official agency for cultural diplomacy counted w interventions per hour on social media in Turkish, denouncing Paludan’s actions without Swedish authorities intervening. </p>
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<p>In June, at the opening of the <a href="https://www.lepoint.fr/societe/qu-est-ce-que-l-aid-el-kebir-la-grande-fete-musulmane-28-06-2023-2526640_23.php"><em>Aid al-Adha</em> festivities</a>, burned a Qur'an in front of Stockholm’s Grand Mosque. It triggered a deluge of protests, with the League of Arab States and the Organisation of Islamic Cooperation protesting against the intolerable… tolerance of Swedish justice. In Pakistan, Iran, Iraq and other Muslim countries, demonstrators called for a boycott of Sweden, or even revenge against the country.</p>
<p>In response, in August the Swedish counter-espionage agency, SÄPO, <a href="https://www.lemonde.fr/en/international/article/2023/08/18/sweden-raises-terror-alert-level_6097778_4.html">raised the alert threshold for terrorist attacks</a> against the country to level 4 (out of 5). This was a return to the climate of 2016, when the war in Syria triggered a historic surge in the number of refugees.</p>
<h2>Homegrown causes and a new split in the political spectrum</h2>
<p>While the spate of anti-Islam actions is the work of transnational players, it is in Sweden that they manifested themselves most conspicuously. The interethnic tensions that have shaken the country since the migrant crisis of 2015-2016 and the proliferation of <a href="https://www.theguardian.com/world/2023/nov/30/how-gang-violence-took-hold-of-sweden-in-five-charts">settling of scores between gangs</a>, have helped to create a fertile ground. According to the Swedish government, Russia has also sought to use its networks to <a href="https://www.theguardian.com/world/2023/jul/26/russia-using-disinformation-to-imply-sweden-supported-quran-burnings">fan the flames of conflict between long-settled Swedes and newcomers</a>. The Kremlin’s goal is to destabilise a country that has strongly supported Ukraine since Russia’s invasion in February 2022, to the point of ending two centuries of neutrality to join NATO.</p>
<p>The controversy comes at a time when domestic policy has been marked by a turning point: the breakthrough in September 2022 of the <a href="https://www.nytimes.com/2022/09/17/world/europe/sweden-far-right-election.html">Sweden Democrats</a> (SD), a far-right party with neo-Nazi roots. It succeeded in part by making its stand against immigration – based on the premise of a “war of civilisations” – the focus of its discourse. While liberal-conservative Ulf Kristersson leads the government, the Sweden Democrats give him a majority through their support. This allows them to inject their obsessions into the country’s debates. Their latest proposal is the <a href="https://www.lemonde.fr/en/international/article/2023/11/27/sweden-pm-condemns-far-right-call-to-tear-down-mosques_6292541_4.html">demolition of many of the country’s existing mosques</a>.</p>
<p>The multiplication of Qur'an burnings has only served to exacerbate the Islamic world’s concern that such acts are becoming commonplace. But Muslim communities are also outraged by the inaction Swedish authorities, which is in stark contrast to neighbouring countries such as <a href="https://www.politico.eu/article/denmark-ban-quran-burning/">Denmark</a> and <a href="https://yle.fi/a/74-20015426">Finland</a>. How can we explain the stance of Swedish officials in the face of this phenomenon, at a time when the political security situation appears (according to Prime Minister Kristersson’s <a href="https://europeanconservative.com/articles/news/swedish-pm-delivers-a-grim-christmas-speech/">2022 Christmas speech</a>) to be “the worst since the end of the Second World War”?</p>
<h2>Legal and cultural reasons for governmental action</h2>
<p>The technical reason most often cited to explain the prevalence Qur'an burnings in Sweden is the lack of a legal arsenal to prohibit it. Laws banning blasphemy and the defamation of religion were struck down more than 50 years ago, so the issue of the formally curbing such provocations that the discussion has crystallised.</p>
<p>To date, Sweden’s courts have been reluctant to invoke two relevant articles of country’s criminal code, which punish, respectively, “vexatious behaviour” and “incitement to racial hatred”. The former requires the offensive impact of the gesture to be proven – and not just probable. In the latter case, the current interpretation among judges is that insulting a religion is not the same as discriminating against an ethnic group. At present, administrative courts of appeal have <a href="https://www.bbc.com/news/world-europe-66310285">overturned police bans</a> on Paludan and Momika’s actions.</p>
<p>Faced with an outcry that unites not only Erdogan, Vladimir Putin and Victor Orban but also the United Nations’ <a href="https://unric.org/en/human-rights-council-condemns-the-burning-of-the-quran-as-a-religious-hate-act/">Human Rights Council</a>, the parties in the government coalition oscillate between criticism of the Qur'an burnings and a refusal to “give in to foreign diktats”. Sweden’s Social Democrat party, now in opposition, seems to be leaning toward a readjustment of the legal arsenal. </p>
<p>It should be remembered that while the principle of freedom of expression has been a pillar of Sweden’s national identity since the 18th century, legislation often prompted by political emergencies has restricted its scope. Since 1933, for example, Swedish citizens have been forbidden to wear clothing revealing their political affiliation. In 1996, a man who wore a Swedish flag decorated with mythological figures and the word <em>Valhalla</em> on national day was convicted in court. In 2014, artist Dan Park’s collages – depicting the hanging of three coloured individuals, identified by name, as if after a lynching – <a href="https://hyperallergic.com/154676/sentenced-swedish-artist-dan-park-incited-against-an-ethnic-group/">earned him</a> a heavy fine, six months in prison and the destruction of his works.</p>
<p>The reluctance to change the law today can be explained by the rejection of the idea that the sphere of the sacred can be the object of guardianship or <em>ad hoc</em> bans. Attacking a “symbol” – as the public prosecutor ruled in the Qu'ran burning in front of the Turkish embassy – is never illegal, as long as the demonstration does not target flesh-and-blood believers. </p>
<p>In a polarised political spectrum, the dispute has contributed to a hardening of positions. While the Sweden Democrats perceive an opportunity to set themselves up as defenders of a national virtue – tolerance, extended to extreme expressions, of the right of assembly – the government is engaged in a perilous balancing act: denouncing the exploitation of Islamophobia by foreign powers that are often highly undemocratic, while dissociating itself from repulsive manifestations of xenophobia.
A public enquiry, launched in August to examine revising the standards on freedom of expression, will deliver its conclusions on 1 July 2024. Relying on well-established consensual mechanisms, the government is seeking to break a deadlock that places Sweden in an outlying – and uncomfortable – position.</p><img src="https://counter.theconversation.com/content/220649/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Piero S. Colla ne travaille pas, ne conseille pas, ne possède pas de parts, ne reçoit pas de fonds d'une organisation qui pourrait tirer profit de cet article, et n'a déclaré aucune autre affiliation que son organisme de recherche.</span></em></p>Anti-Islam activists in Sweden have repeatedly burned Qurans in public, not only earning the country vehement criticism from Muslim countries but also raising the threat of terrorism.Piero S. Colla, Chargé de cours à l’université de Strasbourg, laboratoire « Mondes germaniques et nord-européens », Université de StrasbourgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2206512024-01-08T19:17:20Z2024-01-08T19:17:20ZIndonesia is one of the world’s largest democracies, but it’s weaponising defamation laws to smother dissent<figure><img src="https://images.theconversation.com/files/568147/original/file-20240108-29-ygdop8.jpg?ixlib=rb-1.1.0&rect=17%2C1052%2C2969%2C2942&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/jakarta-indonesia-november-21-2022-east-2309158677">Shutterstock</a></span></figcaption></figure><p>Two former coordinators of one of Indonesia’s most prominent human rights organisations have escaped conviction in a defamation case brought by a powerful government minister. While their astonishing acquittal is welcome, the case marked a bleak new low for freedom of expression in one of the world’s largest democracies.</p>
<p>Haris Azhar and Fatia Maulidiyanti, who had coordinated the Commission for the Disappeared and Victims of Violence (KontraS), were accused of defamation by Coordinating Minister for Maritime Affairs and Investment, Luhut Binsar Pandjaitan. </p>
<p>Luhut’s statements made it clear the case was expressly intended to create a chilling effect and smother civil society criticism of the government.</p>
<p>So what is the case about, and why is it so important?</p>
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Read more:
<a href="https://theconversation.com/is-joko-widodo-paving-the-way-for-a-political-dynasty-in-indonesia-219499">Is Joko Widodo paving the way for a political dynasty in Indonesia?</a>
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<h2>A messy web of mining interests</h2>
<p>The case related to a 2021 <a href="https://www.youtube.com/watch?v=1xMlnuOtBAs">YouTube video</a> in which Haris and Fatia discussed a <a href="https://ylbhi.or.id/bibliografi/laporan/ekonomi-politik-penempatan-militer-di-papua/">report</a> published jointly by a group of Indonesian civil society organisations. In the video, the pair mentioned that Luhut was “implicated” or “involved” (<em>bermain</em>) in mining in Wabu Block, in the Intan Jaya district of what is now Central Papua Province.</p>
<p>The <a href="https://www.youtube.com/watch?v=Zf3YBmJ8324">details</a> are a bit complicated, but a key part of the dispute centred on this point about mining. </p>
<p>In 2016, Australian mining firm West Wits Mining <a href="https://announcements.asx.com.au/asxpdf/20161012/pdf/43bxf6v2rm9v2m.pdf">reported to</a> the Australian Stock Exchange (ASX) that its Indonesian subsidiary Madinah Quarataa’in had entered into an agreement with another company, Tobacom Del Mandiri. They wanted to develop the Derewo River Gold Project in Intan Jaya. </p>
<p>Tobacom Del Mandiri is owned by another major Indonesian firm, Toba Sejahtra. Luhut has acknowledged he <a href="https://www.cnnindonesia.com/nasional/20230608151000-12-959378/luhut-klaim-lepas-toba-group-sejak-jadi-menteri-saham-masih-pegang">holds</a> 99% of shares in Toba Sejahtra.</p>
<p>Representatives from both Indonesian companies <a href="https://www.republika.id/posts/42691/petualangan-perusahaan-luhut-di-papua">have since said</a> the partnership did not go ahead. But given his stock portfolio, the activists had a relatively firm basis for implying Luhut was “involved” in mining in Papua.</p>
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<p>Luhut objected to this.</p>
<p>He also objected to Haris and Fatia referring to him as a “villain” (<em>penjahat</em>) and “Lord Luhut”, a favourite moniker of Indonesians online. He got the nickname because President Joko “Jokowi” Widodo has entrusted him to oversee a <a href="https://bisnis.tempo.co/read/1739767/17-daftar-jabatan-luhut-dari-jokowi-terbaru-pengarah-mrpn">seemingly endless list</a> of strategic projects. </p>
<p>Haris and Fatia were charged with defamation under the Law on Electronic Information and Transactions (commonly known as the ITE law). Unlike in Australia, defamation is a criminal offence in Indonesia. They also faced secondary fake news charges and defamation charges under the Criminal Code. </p>
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<h2>Making an example of activism</h2>
<p>Under Jokowi, there has been a dramatic escalation in abuse of the Electronic Information and Transactions Law to target activists, human rights defenders, journalists, and ordinary citizens.</p>
<p>According to Indonesian digital rights organisation SAFEnet, <a href="https://safenet.or.id/id/2023/11/koalisi-serius-mendesak-penundaan-pengesahan-revisi-kedua-uu-ite/">89 people</a> were
reported under the law between January and October 2023.</p>
<p>Public anger over the arbitrary way the law has been applied led the government to publish <a href="https://nasional.kompas.com/read/2021/06/23/19085041/skb-pedoman-uu-ite-resmi-ditandatangani-ini-isinya">guidelines</a> for law enforcers on its implementation. </p>
<p>According to the guidelines, defamation charges should not be brought when assertions are based on analysis, opinion or facts. </p>
<p>Luhut reported Haris and Fatia to police just three months after these guidelines were published.</p>
<p>The trial ran from April 2023 through to January 8 2024. During the trial, Luhut complained that being called names was <a href="https://www.cnnindonesia.com/nasional/20230608121926-12-959228/luhut-ngaku-kenal-lama-dengan-haris-saya-ingin-selesaikan-baik-baik">“deeply hurtful”</a>.</p>
<p>Delivering the court’s decision, <a href="https://www.cnnindonesia.com/nasional/20240108105148-12-1046633/haris-azhar-divonis-bebas-dalam-kasus-lord-luhut">Judge Muhammad Djohan Arifin said</a> the YouTube conversation between Haris and Fatia constituted opinion and analysis of a civil society study and their use of the word “lord” was not defamatory. </p>
<p>Prosecutors have said they will <a href="https://www.thejakartapost.com/indonesia/2024/01/08/two-activists-cleared-of-defaming-luhut.html">consider appealing</a> the decision. </p>
<p>Luhut claimed he reported the activists to defend his reputation. Other statements he made during the trial left no doubt as to his real motivations. </p>
<p>Luhut said he wants the case to serve as a “<a href="https://www.kompas.id/baca/polhuk/2023/06/08/luhut-bantah-tuduhan-punya-bisnis-tambang-di-papua">lesson</a>”. </p>
<p>The prosecution concluded its sentencing demand with <a href="https://www.cnnindonesia.com/nasional/20231113191500-12-1023701/jpu-kasus-lord-luhut-kutip-politikus-pengacara-haris-azhar-nilai-lucu">a quote</a> from a minor politician, Teddy Gusnaidi, stating: </p>
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<p>If using the label ‘activist’ means you are immune from prosecution, criminals will form NGOs (non-government organisations) to avoid consequences for their crimes.</p>
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<p>Luhut also claimed that he <a href="https://www.cnnindonesia.com/nasional/20230608163900-12-959440/luhut-saya-mau-audit-semua-lsm-dapat-dana-dari-mana">wanted to conduct</a> an “audit” of all non-government organisations in Indonesia to determine where they get their funding. </p>
<p>This is disingenuous. </p>
<p>Indonesian civil society organisations already need government approval to
receive donor funds, and most openly publish their list of donors in their public annual reports. </p>
<p>The government also regularly subjects foreign donors to interrogation from everyone from police to intelligence agencies, about their planned activities.</p>
<h2>Increasingly authoritarian tactics</h2>
<p>Appealing to nationalistic sensibilities and raising questions about civil society organisations like this is a <a href="https://www.fidh.org/en/issues/business-human-rights-environment/laws-against-foreign-agents-the-multi-functional-tool-of">classic technique</a> of authoritarian governments. It undermines organisations critical of government and <a href="https://www.tandfonline.com/doi/full/10.1080/13642987.2018.1492916">redirects focus</a> from the issues at hand.</p>
<p>Legal attacks like the one against Haris and Fatia are designed to <a href="https://experts.arizona.edu/en/publications/you-can-beat-the-rap-but-you-cant-beat-the-ride-bringing-arrests-">wear civil society down</a>. Fronting up in court every week is time consuming, emotionally draining, and takes activists away from their work. </p>
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<p>Further, the use of judicial harassment to target activists, in contrast to cruder tactics such as cyberattacks or physical violence, is designed to lend an <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1540-5893.2012.00515.x">air of legitimacy</a> to government repression.</p>
<p>Luhut has made it clear that the goal of the case against Haris and Fatia is to silence dissent. He appears to be succeeding.</p>
<p>There is already evidence that abuse of the Electronic Information and Transactions Law is having a chilling effect in Indonesian society, with a 2022 survey finding <a href="https://nasional.tempo.co/read/1580168/survei-indikator-politik-indonesia-629-persen-rakyat-semakin-takut-berpendapat">62.9% of Indonesians</a> were afraid of openly expressing their opinions.</p>
<p>Indonesian pro-democracy groups have long been willing to speak out against the state, even under the most challenging conditions. Yet repeated charges and arrests will eventually result in self-censorship and behavioural change.</p>
<p>In the face of mounting pressure, the government finally passed a <a href="https://icjr.or.id/wp-content/uploads/2023/12/Compile-RUU-ITE.pdf">revised version</a> of the law on December 5 2023.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/myanmar-crisis-highlights-limits-of-indonesias-quiet-diplomacy-as-it-sets-sights-on-becoming-a-great-regional-power-209291">Myanmar crisis highlights limits of Indonesia's 'quiet diplomacy' as it sets sights on becoming a 'great regional power'</a>
</strong>
</em>
</p>
<hr>
<p>Activists have complained that, like other regressive laws enacted in Indonesia over recent years, deliberations on the revision were conducted largely <a href="https://safenet.or.id/id/2023/07/revisi-uu-ite-harus-terbuka-serius-menjawab-permasalahan-dan-tidak-boleh-terburu-buru/">behind closed doors</a>. </p>
<p>The revised law does include some improvements, including that statements made in the public interest or to defend oneself cannot be prosecuted. The maximum sentence for defamation has also been decreased to two years, yet it remains longer than provisions on defamation in the <a href="https://peraturan.bpk.go.id/Details/234935/uu-no-1-tahun-2023">new Criminal Code</a>, which will come into force in 2026.</p>
<p>Activists have argued for a complete dropping of criminal charges for online defamation. Given they have proven such an effective tool for smothering dissent, there was never any chance legislators were going to simply give up this weapon. </p>
<p>Haris and Fatia may be the highest profile Indonesians charged under the Electronic Information and Transactions Law, but they will not be the last.</p><img src="https://counter.theconversation.com/content/220651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Mann does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two human rights activists have been acquitted of defaming a powerful government minister. It’s the latest in a string of concerning authoritarian uses of Indonesian law.Tim Mann, Associate Director, Centre for Indonesian Law, Islam and Society, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2202662024-01-08T16:43:08Z2024-01-08T16:43:08ZFreedom of thought is being threatened by states, big tech and even ourselves. Here’s what we can do to protect it<figure><img src="https://images.theconversation.com/files/568035/original/file-20240105-27-gzzeml.jpg?ixlib=rb-1.1.0&rect=46%2C46%2C5184%2C3383&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/danang-vietnam-august-2019-photo-taken-2185304981">Beauty Is In The Eye Inc/Shutterstock</a></span></figcaption></figure><p>The idea of free speech sparked into life 2,500 years ago <a href="https://oll.libertyfund.org/reading-room/2022-08-17-review-free-speech-a-history-from-socrates-to-social-media-by-jacob-mchangama-basic-books-2022">in Ancient Greece</a> – in part because it served a politician’s interests. The ability to speak freely was seen as essential for the new Athenian democracy, which the politician <a href="https://www.routledge.com/Aspects-of-Greek-History-750-323BC-A-Source-Based-Approach/Buckley/p/book/9780415549776">Cleisthenes</a> both introduced and benefited from.</p>
<p>Today, we debate the boundaries of free speech around kitchen tables and watercoolers, in the media and in our courtrooms. The <a href="https://www.equalityhumanrights.com/human-rights/human-rights-act/article-9-freedom-thought-belief-and-religion">right to freedom of thought</a>, however, is more rarely discussed. But thanks to the growing influence of social media, big data and new technology, this “<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3291586">forgotten freedom</a>” needs our urgent attention.</p>
<p>In democratic societies ruled by ballots not bullets, power is won through persuasion. Efforts at persuasion are ramping up: there will be <a href="https://en.wikipedia.org/wiki/2024_national_electoral_calendar">more than 50 national elections</a> involving half the world’s population in 2024, including in <a href="https://www.forbes.com/sites/siladityaray/2024/01/03/2024-is-the-biggest-election-year-in-history-here-are-the-countries-going-to-the-polls-this-year/">seven of the ten most populous countries</a>. The results will <a href="https://worldview.stratfor.com/article/four-2024-elections-will-shape-second-half-decade">shape our century</a>, making it paramount that we protect people’s ability to think and vote freely. </p>
<p>But corporate and political actors know more about how our minds work than we do. They activate our biases rather than appeal to our reason, push us to share information without thinking, and control our attention to the point of addiction.</p>
<p>Advances in neuroscience may heighten this threat to free thought. Elon Musk and Mark Zuckerburg are among those in a <a href="https://www.vox.com/future-perfect/2023/5/4/23708162/neurotechnology-mind-reading-brain-neuralink-brain-computer-interface">race to read our minds</a> with the help of artificial intelligence (AI). In 2021, the <a href="https://www.ohchr.org/en/documents/thematic-reports/a76380-interim-report-special-rapporteur-freedom-religion-or-belief">UN warned of</a> the risks of neural technologies predicting, identifying and modifying our thoughts. Manhattan projects of the mind threaten to make lab rats of us all.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/567634/original/file-20240103-25-nqv1bk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Suited man standing next to a brain imaging device." src="https://images.theconversation.com/files/567634/original/file-20240103-25-nqv1bk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/567634/original/file-20240103-25-nqv1bk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=390&fit=crop&dpr=1 600w, https://images.theconversation.com/files/567634/original/file-20240103-25-nqv1bk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=390&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/567634/original/file-20240103-25-nqv1bk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=390&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/567634/original/file-20240103-25-nqv1bk.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=491&fit=crop&dpr=1 754w, https://images.theconversation.com/files/567634/original/file-20240103-25-nqv1bk.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=491&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/567634/original/file-20240103-25-nqv1bk.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=491&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Elon Musk’s brain implant company Neuralink received regulatory approval to conduct the first clinical trial in humans in 2023.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Elon_Musk_and_the_Neuralink_Future.jpg">Steve Jurvetson/Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
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<p>We could respond by calling on our right to freedom of thought. It’s there waiting for us, created in 1948 by the <a href="https://www.un.org/en/about-us/universal-declaration-of-human-rights">Universal Declaration of Human Rights</a> (Article 18) and later <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights">becoming international law</a>. But anyone reaching for this right may be horrified to find it hollow, bereft of any clear definition and unfit for purpose.</p>
<p>In recent years, the UN has sought to <a href="https://www.tandfonline.com/doi/full/10.1080/13642987.2023.2227100">give this right more substance</a>. One of its special rapporteurs, Ahmed Shaheed, has made a <a href="https://www.ohchr.org/en/documents/thematic-reports/a76380-interim-report-special-rapporteur-freedom-religion-or-belief">series of recommendations</a> (which I will outline) that should, eventually, lead to a better defined, more muscular right to free thought. This process has promise – it could help shield our thoughts from prying eyes and protect our minds from manipulation.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/to-what-extent-are-you-truly-free-71188">To what extent are you truly free?</a>
</strong>
</em>
</p>
<hr>
<p>But it also has the potential for harm. In international law, freedom of thought is an absolute right. This means it could run roughshod over other important concerns. Activists could, for example, use this right to silence their political opponents by claiming their opponents’ speech is manipulating thoughts.</p>
<p>This right could also go wrong by failing to protect all forms of thought. We must ask where “thinking” ends and “speaking” begins in today’s world: should performing an online search, writing a personal diary, or asking a question in a WhatsApp group be regarded as forms of thought, or outright speech?</p>
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<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><strong><em>This article is part of Conversation Insights</em></strong>
<br><em>The Insights team generates <a href="https://theconversation.com/uk/topics/insights-series-71218">long-form journalism</a> derived from interdisciplinary research. The team is working with academics from different backgrounds who have been engaged in projects aimed at tackling societal and scientific challenges.</em></p>
<hr>
<p>History suggests the right to free thought will only become globally relevant if political factions <a href="https://www.hup.harvard.edu/books/9780674064348">or states</a> use it to serve their purposes. And this looks increasingly likely as accusations of <a href="https://www.theguardian.com/uk-news/2020/jan/04/cambridge-analytica-data-leak-global-election-manipulation">mental manipulation</a> and <a href="https://www.bbc.co.uk/news/uk-politics-48065622">“thoughtcrime” creation</a> fly between the political right and left, and the US looks for new weapons in its <a href="https://www.hoover.org/research/cold-war-ii-niall-ferguson-emerging-conflict-china">developing cold war with China</a>.</p>
<p>For both technological and (geo)political reasons, the right to freedom of thought’s time may have come. Whatever it is decided to mean, it will bind us all. As I argue in my new book <a href="https://oneworld-publications.com/work/freethinking/">Freethinking</a>, this makes it crucial that we can all have input into its design. </p>
<h2>Free thought past</h2>
<p>The term “freethinker” came into common use during the Enlightenment in late 17th-century Europe, describing people who questioned religious authorities. Today, freethinking typically refers to being <a href="https://www.taylorfrancis.com/chapters/mono/10.4324/9780203429488-94/value-free-thought-1944-kenneth-blackwell-harry-ruja-bernd-frohmann-john-slater-sheila-turcon">guided by evidence and reason, not authority</a> – although this hasn’t stopped people who play fast and loose with evidence appropriating the term too.</p>
<p>Up against the freethinkers are those who seek to control thought to achieve and cement power. George Orwell’s classic vision of this threat, Nineteen Eighty-Four, actually came out 20 years after <a href="https://www.dukeupress.edu/thought-crime">Japan’s Peace Preservation Law</a> had already termed many people on the political left as “thought criminals”.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/T8BA7adK6XA?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Nineteen Eighty-Four official trailer (1984)</span></figcaption>
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<p>In Orwell’s novel, the ruling party aims to “extinguish once and for all the possibility of independent thought”. Beginning in childhood, people are taught to deny the evidence of their eyes and ears. No one is to be left alone to think – yet nor are they able to think with others. People are encouraged to stop themselves on the threshold of dangerous thoughts, as the terrifying Thought Police find and punish those who commit “thoughtcrime”.</p>
<p>The ruling party also uses extensive surveillance, parallels to which can be seen today. Consider the effects of Edward Snowden’s 2013 revelations that the US was heavily surveilling the internet. This led to <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2412564">a 10% drop</a> in internet searches that could have got Americans in trouble with their government, such as “domestic security”, “nuclear” and “organized crime”. Americans’ suspicion that they were being watched harmed their freedom of thought.</p>
<p>New technologies drive new laws. Just as photography spurred <a href="https://heinonline.org/HOL/Page?handle=hein.journals/mslr2008&div=7&g_sent=1&casa_token=kSy5i8DmOnMAAAAA:SOLEoYd1oW26YL0UiKKPWV9aKVd7KfdzUfLUOgUyAMRLC2FF8L3RVWY33iU9bZ8gNTkQX8tW6w&collection=journals">a right to privacy</a> in 1890, today <a href="https://link.springer.com/book/10.1007/978-3-030-84494-3">scholars</a> want to develop the right to freedom of thought in response to <a href="https://www.jstor.org/stable/24756752">neurotechnology</a> and the <a href="https://www.doughtystreet.co.uk/sites/default/files/media/document/Rethinking%20Freedom%20of%20Thought%20for%20the%2021st.pdf">digital world</a>. This means confronting the gulf between the extensive lauding of this right and the <a href="https://www.tandfonline.com/doi/full/10.1080/13642987.2023.2227100">bewildering neglect</a> of what it practically involves. Enter the UN.</p>
<h2>Free thought present</h2>
<p>In October 2021, special rapporteur Shaheed <a href="https://www.ohchr.org/en/documents/thematic-reports/a76380-interim-report-special-rapporteur-freedom-religion-or-belief">presented a report</a> on the right to freedom of thought. To underpin this right, he proposed four pillars which I summarise as follows, including some questions I think we should consider about them:</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/567687/original/file-20240103-510735-l12yif.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Universal Declaration of Human Rights document" src="https://images.theconversation.com/files/567687/original/file-20240103-510735-l12yif.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/567687/original/file-20240103-510735-l12yif.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=809&fit=crop&dpr=1 600w, https://images.theconversation.com/files/567687/original/file-20240103-510735-l12yif.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=809&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/567687/original/file-20240103-510735-l12yif.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=809&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/567687/original/file-20240103-510735-l12yif.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1017&fit=crop&dpr=1 754w, https://images.theconversation.com/files/567687/original/file-20240103-510735-l12yif.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1017&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/567687/original/file-20240103-510735-l12yif.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1017&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:The_universal_declaration_of_human_rights_10_December_1948.jpg">UN via Wikimedia</a></span>
</figcaption>
</figure>
<p><strong>1. Mental privacy.</strong> People cannot be forced to reveal their thoughts. This means we must scrutinise technological developments that open new windows into our minds. But should our minds always be private?</p>
<p><strong>2. Mental immunity.</strong> People cannot be punished for their thoughts. This idea has existed since ancient Rome, though today we need to decide what exactly should count as a “thought”.</p>
<p><strong>3. Mental integrity.</strong> People and organisations cannot alter others’ thoughts without permission. We know subliminal advertising is wrong because it bypasses our conscious mind – but beyond this, we enter a grey zone. When does persuasion become impermissible manipulation?</p>
<p><strong>4. Mental fertility.</strong> This enshrines a government’s duty to create an enabling environment for free thought. But will governments really do this if free thought challenges their power? And even if they want to, how can they design a society that promotes free thought?</p>
<p>To build on these pillars, we need to answer basic questions about what thought is and what makes it free. Before we can protect thought, we must first define it.</p>
<h2>Free thought future</h2>
<p>Traditionally, the law views thoughts as happening inside our brains. Yet philosophers (and, increasingly, psychologists and technologists) have <a href="https://www.jstor.org/stable/3328150">long claimed that</a> thought “ain’t just in the head”, proposing that our minds extend into the world. </p>
<p>A notebook can be the functioning memory of someone with dementia. Writing in a diary, as Winston Smith did illegally in Nineteen Eighty-Four, can also represent thinking. Writing doesn’t only express thought; sometimes “<a href="https://doi.org/10.1017/CBO9780511583360">the thinking is the writing</a>”. Similarly, some internet searches can be a form of thinking as we use them to question, reason and reflect.</p>
<p>If the right to freedom of thought is deemed to cover our “extended minds”, this will have important consequences. Authorities <a href="https://www.newstatesman.com/science-tech/2016/08/how-your-google-searches-can-be-used-against-you-court">often access the internet search histories</a> of people accused of crimes, using this as evidence. In homicide trials, searches such as “how to get rid of someone annoying” or “chloroform” have been <a href="https://www.newstatesman.com/science-tech/2016/08/how-your-google-searches-can-be-used-against-you-court">cited in court</a>. But if such searches are deemed to constitute thinking, then accessing someone’s search history could become a violation of their mental privacy.</p>
<p>Speaking aloud can also be regarded as a form of thinking – we sometimes speak to find out what we think. As novelist <a href="https://www.tandfonline.com/doi/full/10.1080/1600910X.2019.1630846">E.M. Forster asked</a>: “How do I know what I think until I see what I say?”</p>
<p>But we also speak aloud in order to think with other people – and we may <a href="https://doi.org/10.1016/j.geb.2009.09.003">think better with others</a> than we do alone. Thought can be at its most powerful when it is social, rather than the solitary act depicted by <a href="https://en.wikipedia.org/wiki/The_Thinker">Auguste Rodin</a>. So, for thought to be truly free, we require public as well as private thinking spaces.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/567693/original/file-20240103-29-s0we6w.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Rodin's statue The Thinker in a leafy garden." src="https://images.theconversation.com/files/567693/original/file-20240103-29-s0we6w.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/567693/original/file-20240103-29-s0we6w.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/567693/original/file-20240103-29-s0we6w.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/567693/original/file-20240103-29-s0we6w.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/567693/original/file-20240103-29-s0we6w.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/567693/original/file-20240103-29-s0we6w.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/567693/original/file-20240103-29-s0we6w.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Thinking is not always best done alone, despite Rodin’s famous depiction.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Rodin%27s_The_Thinker_-_panoramio.jpg">Roman Suzuki/Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span>
</figcaption>
</figure>
<p>To facilitate this, we may need a new legal concept of “<a href="https://oneworld-publications.com/work/freethinking/">thoughtspeech</a>”. This would represent the thinking aloud we do with others in the name of “good faith truth-seeking”. Thoughtspeech could be protected as absolutely as the thoughts inside our head: while one could (and should) still disagree with others, attempts to silence or punish thoughtspeech would be a human rights violation.</p>
<p>However, an obvious concern is that this concept could be misused to justify hate speech that <a href="https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/combatting-discrimination/racism-and-xenophobia/combating-hate-speech-and-hate-crime_en#:%7E:text=Hate%20motivated%20crime%20and%20speech,or%20national%20or%20ethnic%20origin.">Europe</a>, but <a href="https://www.ala.org/advocacy/intfreedom/hate">not the US</a>, has deemed illegal. The protestation that “I’m just asking questions” can easily be employed <a href="https://doi.org/10.1080/00207659.2021.1939946">as a cover to demonise people</a>. At the same time, a creeping prohibition of asking difficult or challenging questions is also potentially dangerous, not least to society’s minorities who seek to challenge the status quo. Where necessary, courts would have to decide whether the claimed thoughtspeech was genuine truth-seeking in good faith, or had darker motives.</p>
<p>To see these thorny questions in practice, consider how, in Ireland, both <a href="https://www.kildarestreet.com/debate/?id=2023-04-26a.380">the left</a> and right have argued that the proposed <a href="https://data.oireachtas.ie/ie/oireachtas/bill/2022/105/eng/ver_b/b105b22d.pdf">criminal justice (incitement to violence or hatred and hate offences) bill</a> 2022 will create “thought crimes”. Section 10(3) of this bill states that if you possess hateful material that you haven’t shown anyone, and it is reasonable to assume this material is not just intended for personal use, then you are presumed to be breaking the law. The police could then seek a warrant to enter your premises and access this information.</p>
<p>One <a href="https://www.independent.ie/podcasts/the-big-tech-show/the-big-tech-show-irelands-new-hate-speech-law-will-create-thought-crimes/a978548546.html">politician claimed</a> this bill would not create thought crimes because it involved “production of material”, and that “nobody is ever going to be prosecuted for what they’re thinking inside their heads”. This illustrates the restricted view of thought that some politicians hold – and suggests that legislators could leave much of our thinking naked and vulnerable.</p>
<p>Once we have settled on what thought is, we must work out what makes it free. The <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065">EU’s Digital Services Act</a> forbids online platforms from deceiving or manipulating users, or impairing their ability to make “free and informed decisions”. But what counts as manipulation or impairing free decision-making?</p>
<p>Psychology suggests that free thinking requires us to control our attention, be able to reason and reflect, and to not need superhuman courage to think aloud with others. This makes platforms and products problematic that either capture our attention to the <a href="https://www.mdpi.com/1660-4601/16/14/2612">point of addiction</a>, or employ “<a href="https://doi.org/10.1093/jla/laaa006">dark patterns</a>” that undermine reflection and reasoning.</p>
<p>For instance, in the “false demand” dark pattern, a shopping website may falsely tell you that “Abby in London” has just bought a pillow. This could undermine your reasoning by triggering a panicky sense of scarcity in you, or setting a false norm of others buying the pillow, making you more likely to purchase.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/567710/original/file-20240103-19-2ta8k1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three UK local election ballot papers" src="https://images.theconversation.com/files/567710/original/file-20240103-19-2ta8k1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/567710/original/file-20240103-19-2ta8k1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=372&fit=crop&dpr=1 600w, https://images.theconversation.com/files/567710/original/file-20240103-19-2ta8k1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=372&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/567710/original/file-20240103-19-2ta8k1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=372&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/567710/original/file-20240103-19-2ta8k1.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=468&fit=crop&dpr=1 754w, https://images.theconversation.com/files/567710/original/file-20240103-19-2ta8k1.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=468&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/567710/original/file-20240103-19-2ta8k1.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=468&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">UK local election ballot papers with candidates listed in alphabetical order.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Ballot_papers_for_the_2021_United_Kingdom_local_elections.jpg">domdomegg/Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>The designers of systems need not even intentionally play on our mental biases for their products to be problematic. For instance, listing candidates in alphabetical order on a voting ballot paper may seem neutral, but the candidate named first gains a small <a href="https://doi.org/10.1016/j.electstud.2016.06.019">but measurable advantage</a>. This is partly because we have a <a href="https://doi.org/10.1016/j.electstud.2016.09.002">mental bias to prefer</a> the first item on a list. </p>
<p>Some US states don’t use <a href="https://www.sciencedirect.com/science/article/abs/pii/S0261379414000584">alphabetical ordering on ballots</a> for this reason. Instead they randomly rotate the order of candidates’ names on ballots across districts. Yet, elsewhere, <a href="https://www.electoralcommission.org.uk/guidance-acting-returning-officers-administering-a-uk-parliamentary-election-great-britain/voter-materials/production-ballot-papers/ballot-paper-design/candidate-details">including in the UK</a>, this alphabetical practice continues. Alphabetical ordering arguably violates voters’ right to freedom of thought.</p>
<p>I believe the right to freedom of thought should protect thinking wherever it occurs – in our heads, our diaries, on the internet, or when we’re engaged in good faith truth-seeking when thinking aloud with others. And crucially, to keep thoughts free, our environment must be designed and regulated to let us control our attention, think logically and reflectively, and not fear punishment for our thoughts. Unfortunately, new technologies threaten this ideal.</p>
<h2>The power to punish thought</h2>
<p>New technologies have the potential to undermine three of the UN’s pillars of free thought – mental privacy, immunity, and integrity. It is well known, for example, that social media can use knowledge of how our minds work to hijack our attention, discourage reflection, and facilitate the punishment of wrongthink, thereby <a href="https://link.springer.com/article/10.1007/s13347-022-00567-7">harming our autonomy</a>. Less well known is how social media revives an old social pattern that threatens free thought.</p>
<p>Our hunter-gatherer ancestors lived in egalitarian communities with no dominant individuals. This was due to a “<a href="https://doi.org/10.1086/204166">reverse dominance hierarchy</a>” which meant that, if someone tried to rise above others, the group would work together to humble, exclude or even kill this would-be “tall poppy”.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/567734/original/file-20240103-23-v2f60j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Cave painting of hunter gatherers" src="https://images.theconversation.com/files/567734/original/file-20240103-23-v2f60j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/567734/original/file-20240103-23-v2f60j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/567734/original/file-20240103-23-v2f60j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/567734/original/file-20240103-23-v2f60j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/567734/original/file-20240103-23-v2f60j.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/567734/original/file-20240103-23-v2f60j.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/567734/original/file-20240103-23-v2f60j.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Our hunter-gatherer ancestors lived in egalitarian communities without dominant individuals.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/ancient-prehistoric-cave-painting-known-white-2005544015">R.M. Nunes/Shutterstock</a></span>
</figcaption>
</figure>
<p>My book <a href="https://oneworld-publications.com/work/spite/">Spite</a> (2020) explains how anthropologists believe this was possible due to humans’ ability to moralise, wield weapons and use language. Language in particular, especially gossip, helped coordinate actions against tall poppies. When agriculture was invented, larger groups, private property and recognised authority figures came on to the scene, enabling a <a href="https://www.hachettebookgroup.com/titles/christopher-boehm/moral-origins/9780465020485/">more hierarchical form of life</a>.</p>
<p>Social media has bought back the reverse dominance hierarchy. People online can unite to moralise and gossip, sometimes with the effect of bringing down individuals. And while this can helpfully check people who abuse their power, it can also harm freethinkers who disturb the status quo and undermine what they see as society’s “<a href="https://en.wikipedia.org/wiki/Noble_lie">noble</a>” (or ignoble) lies.</p>
<p>And not only can new technologies facilitate the punishment of thought, they also have the potential to powerfully manipulate our thoughts. AI will soon know exactly what to say to us to maximise the chances of us performing a desired behaviour. As OpenAI’s CEO <a href="https://youtu.be/e1cf58VWzt8?feature=shared&t=526">Sam Altman has warned</a> in relation to the 2024 elections:</p>
<blockquote>
<p>What if an AI reads everything you have ever written online – every tweet, every article, every everything – then right at the exact moment, sends you one message, customised just for you, that really changes how you think about the world?</p>
</blockquote>
<p>The power disparity between us and AI means that courts could deem AI to have improper undue influence over our minds.</p>
<p>New technologies can also uncover our hidden thoughts. This goes beyond what Big Brother was capable of. As Orwell wrote in Nineteen Eighty-Four, even the ruling party “had never mastered the secret of finding out what another human being was thinking”. </p>
<p>Today, brain-reading technology that detects thoughts via brain scans or neural interfaces threatens to uncover this secret. Meta (Facebook’s owner) <a href="https://ai.meta.com/blog/brain-ai-image-decoding-meg-magnetoencephalography/">recently showed</a> it could determine what people were seeing by examining their brainwaves using magnetoencephalography (MEG) technology. Behaviour-reading techniques that use our actions, such as <a href="https://psycnet.apa.org/record/2003-00779-011">musical preferences</a> or what we <a href="https://doi.org/10.1073/pnas.1218772110">“like” on Facebook</a>, can also be used to infer our internal states. </p>
<p>Now, imagine if a government had someone in custody suspected of having planted a nuclear bomb in a city. There would be a strong temptation to use mind-reading technology to identify the location of the bomb from that individual’s brain – but this would violate the suspect’s right to free thought. Some people, perhaps many, would argue that this right <em>should</em> be violated in such circumstances. </p>
<p>Perhaps the future could include places where free thought is legally limited. While this is a challenging idea, it would be ironic if we failed to think critically about free thought itself. Legal scholar Jan Christoph Bublitz has speculated on the idea of “<a href="https://www.jstor.org/stable/24756752">zones of restricted freedom of thought</a>” in places vulnerable to terrorism, such as airports. In these zones, our thoughts could be permissibly accessed by the state to prevent calamities. </p>
<p>Likewise, the philosopher <a href="https://www.simonandschuster.com/books/The-Moral-Landscape/Sam-Harris/9781439171226">Sam Harris has suggested</a> that once mind reading technology can detect lies, it could be used to create “zones of obligatory candour”. These would be locations, such as courtrooms, where lies would be automatically detected from your brainwaves.</p>
<p>Yet, concerns about mind-reading technologies are frequently blighted by <a href="https://doi.org/10.1080/13642987.2023.2227100">hyperbole, alarmism and exaggeration</a>. One does not simply fall into an MRI scanner; one must consent. Once inside, <a href="https://www.biorxiv.org/content/10.1101/2022.09.29.509744v1">we must cooperate</a> with researchers for brain-reading to work. The extent to which our mental content can be accurately identified is often over-hyped, as it requires extremely specific conditions.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/does-ai-have-a-right-to-free-speech-only-if-it-supports-our-right-to-free-thought-212555">Does AI have a right to free speech? Only if it supports our right to free thought</a>
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<p>It’s also important to recognise that the same technologies that threaten free thought can also benefit thought. Brain-computer interfaces, where we interact with computers simply by thinking, could <a href="https://www.technologyreview.com/2023/09/29/1080472/elon-musk-bandwidth-brains/">boost our mental bandwidth</a>. AI systems such as ChatGPT can stimulate new ideas. So, over-regulating these technologies could be seen as harming free thought.</p>
<p>Clearly, we need to protect free thought in response to new technologies. But in my view, overreacting with unnecessary laws won’t lead to freer minds – it will simply enable other people’s anxieties to rule our lives.</p>
<h2>Protecting employees’ and users’ thoughts</h2>
<p>Traditionally, governments were seen as the main threat to our freedoms. Today, corporations, particularly those involved in controlling flows of information such as media and technology companies, vie for this crown. </p>
<p>Such companies influence what information we do and don’t see. They can also overwhelm us with too much content, creating “<a href="https://www.degruyter.com/document/doi/10.7312/poze19712-002/html">reverse censorship</a>” that harms our ability to think. Corporations also threaten free thought through their ability to fire employees for thoughtcrime, potentially in response to a public outcry. </p>
<p>The British philosopher Bertrand Russell warned <a href="https://en.wikipedia.org/wiki/Free_Thought_and_Official_Propaganda">a century ago</a> that “thought is not free if the profession of certain opinions makes it impossible to earn a living”. Russell said this problem would grow unless the public insisted that employers controlled nothing in their employees’ lives except their work. Today, employers can influence their employees’ <a href="https://www.jstor.org/stable/26842250">morality</a>, <a href="https://doi.org/10.4135/9781526488664">opinions</a>, and even <a href="https://slate.com/news-and-politics/2012/10/employers-increasingly-telling-employees-workers-how-to-vote.html">voting decisions</a>. As a starting point, we need laws that protect employees from being fired for their thinking.</p>
<p>To take another example, while the anti-discriminatory aims of implicit bias training are laudable, corporations could require employees to reveal their thoughts when doing it. The designers of a common element of this training, the implicit association test, <a href="https://psycnet.apa.org/record/1998-02892-004">admit it is</a> “a method that gives the clearest window now available into a region of the mind that is inaccessible to question-asking methods”. Forcing someone into this training could therefore be a breach of mental privacy.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/social-networking-sites-may-be-controlling-your-mind-heres-how-to-take-charge-88516">Social networking sites may be controlling your mind – here's how to take charge</a>
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</em>
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<p>Turning from employees to users, perhaps big tech companies should be required to design their products to support, promote and protect their users’ free thoughts. For example, social media platforms could set their default options to those that minimise the risk of addiction.</p>
<p>Woodrow Wilson once noted that chewing tobacco “gave a man time to think between sentences”. Big tech could provide digital gum in the form of options that <a href="https://profilebooks.com/work/how-to-think/">give users time for thought</a>, like timeouts before responding to posts or making purchases. X (formerly Twitter) already <a href="https://www.theguardian.com/technology/2020/jun/11/twitter-aims-to-limit-people-sharing-articles-they-have-not-read">asks users</a> if they want to share articles they have not yet read.</p>
<p>Similarly, search engines could offer options to show information that challenges users’ existing views rather than confirming their opinions. Websites <a href="https://ground.news/">such as Ground News</a> already highlight which stories are primarily featuring on left or right media, helping people see what is happening outside their own thought bubbles.</p>
<p>Big tech companies such as <a href="https://blog.google/outreach-initiatives/public-policy/our-ongoing-commitment-to-human-rights/">Google</a> and <a href="https://humanrights.fb.com/annual-human-rights-report/">Meta</a> assess their human rights impacts, including through <a href="https://about.fb.com/wp-content/uploads/2022/09/Human-Rights-Due-Diligence-of-Metas-Impacts-in-Israel-and-Palestine-in-May-2021.pdf">independent assessments</a>. But freedom of thought is often overlooked. And while the UN has issued its Guiding Principles on Business and Human Rights, these have been described as “<a href="https://www.hrw.org/sites/default/files/related_material/business.pdf">woefully inadequate</a>” by Human Rights Watch as they lack any enforcement mechanism.</p>
<h2>It’s not just ‘them’, it’s us</h2>
<p>It is not just governments and corporations that threaten free thought – we the people do too. Free thinking has often been risky. “Tell the truth and run,” an old Yugoslavian proverb counsels. </p>
<p>Throughout history, though, some societies have tried to protect free thought and truth-telling. The ancient Athenians had the concept of a “parrhesiast”, someone who spoke truth despite the risks. An example of this came when the aged statesman Solon challenged <a href="https://us.macmillan.com/books/9781250009104/thecourageoftruth">politician Pisistratus’s</a> quest for power in Athens. After arriving at the Greek Assembly dressed in armour to highlight Pisistratus’s aim to use force, Solon declared:</p>
<blockquote>
<p>I am wiser than those who have failed to understand the designs of Pisistratus, and I am more courageous than those who have understood but remain silent out of fear.</p>
</blockquote>
<p>To benefit from the parrhesiast, Athenians had to be willing to bear what philosopher Michel Foucault calls “<a href="https://us.macmillan.com/books/9781250009104/thecourageoftruth">the injuries of truth</a>”. In this parrhesiastic contract, the truth-teller risked speaking out and the listeners promised not to punish them. There again, Solon was not thanked for his contribution, being labelled mad by his colleagues.</p>
<p>Creating a safe space for truth requires a “<a href="https://oneworld-publications.com/work/freethinking/">deep enlightenment</a>” that goes beyond simply educating people to think critically. Designing a society that protects and promotes free thought among its population at all levels could even include city planning.</p>
<p>A Brazilian colleague once told me how the design of the country’s modern capital, Brasília, with its lack of street corners, was meant to prevent people assembling and thinking together – because such thinking could one day threaten the ruling powers. Indeed, the Portuguese for street corners can translate as “points of solidarity”. The <a href="https://politicalscience.yale.edu/publications/seeing-state-how-certain-schemes-improve-human-condition-have-failed">design of Brasília</a> is an offence against free thought.</p>
<p>Rather, we need to design physical and virtual spaces that protect, promote and support “<a href="https://mitpress.mit.edu/9780262581080/the-structural-transformation-of-the-public-sphere/">people’s public use of their reason</a>”. This function was partially performed by coffee houses during the Enlightenment. New spaces should allow a diverse range of voices to be brought together in debate – in order to <a href="https://doi.org/10.1017/S0140525X10000968">help us best find truth</a>. Yet all of this hinges on simultaneously building <a href="https://www.simonandschuster.com/books/Trust/Francis-Fukuyama/9780684825250">a culture of trust</a> that makes people feel safe to think.</p>
<h2>The oxygen of freethinking</h2>
<p>The principle of free thought is in trouble. Today, public thinking is difficult unless you are rich, reckless or anonymous. Online public spaces, such as much social media, typically prioritise engagement and profit over truth-seeking, and can exclude challenging views. A corporate-controlled mainstream news media routinely excludes or distorts important perspectives <a href="https://www.cornellpress.cornell.edu/book/9780801488870/framed/">such as labour issues</a>. Some academics feel compelled to publish ideas anonymously in outlets such as the <a href="https://journalofcontroversialideas.org/">Journal of Controversial Ideas</a>. These are all warning lights of flashing failure on the dashboard of democracy.</p>
<p>The first freethinkers challenged religious authorities and were associated with egalitarianism and the political left. Yet they had their own “<a href="https://plato.stanford.edu/entries/enlightenment/">faith of the Enlightenment</a>” – the belief that developing one’s own reason could create a better life. Today, as well as sharing this faith in reason, many of us have faith that <a href="https://www.penguin.co.uk/books/13399/the-end-of-history-and-the-last-man-by-fukuyama-francis/9780241991039">liberal democracy creates the best form of life</a>.</p>
<p>However, some modern freethinkers are pushing back against these faiths. Such individuals tend to be pro-hierarchy and on the political right. The <a href="https://www.jordanbpeterson.com/wp-content/uploads/2023/03/A-Conservative-Manifesto.pdf">conservative</a> psychologist Jordan Peterson <a href="https://www.youtube.com/watch?v=WEP5ubPMGDU">argues</a> that we’re at the start of a “counter enlightenment”, while legal scholar Adrian Vermeule maligns the “<a href="https://www.firstthings.com/article/2017/01/liturgy-of-liberalism">evidence-based freethinkers of the quiet car</a>” who won’t speak out about liberalism’s problems. Alternatively, so-called “<a href="https://doi.org/10.1111/japp.12331">Dark Enlightenment</a>” thinkers such as <a href="https://www.unqualified-reservations.org/">Curtis Yarvin</a> and <a href="https://www.imperiumpress.org/shop/the-dark-enlightenment/">Nick Land</a> question the benefits of democracy. </p>
<p>Whatever you think of these views, an important question is: will the descendants of the egalitarian left, who used freethinking to challenge societal norms, support the hierarchical right’s freedom to do the same? Or do they regard the political right as <a href="https://www.marcuse.org/herbert/publications/1960s/1965-repressive-tolerance-fulltext.html">in need of silencing</a> rather than debating?</p>
<p>Of course, freethinking on the left is silenced too – including those who oppose the “religion” of capitalism. Consider what happened when a declared socialist, Jeremy Corbyn, ran for prime minister in the 2017 UK parliamentary elections. An academic report on his <a href="https://www.lse.ac.uk/media-and-communications/research/research-projects/representations-of-jeremy-corbyn">coverage by the mainstream media</a> concluded by asking whether it was:</p>
<blockquote>
<p>acceptable that the majority of British newspapers uses its mediated power to attack and delegitimise the leader of the largest opposition party against a rightwing government to such an extent and with such vigour?</p>
</blockquote>
<p>Whatever one’s views on democracy, liberalism, capitalism, or any other important topic, freethinking on these issues can prove profoundly valuable. If someone’s ideas have value, we may adopt them to live better lives. If we adjudge them mistaken, we will still emerge with a better understanding of precisely why our own ideas are valuable, having remade them as <a href="https://www.gutenberg.org/files/34901/34901-h/34901-h.htm">living truths rather than dead dogmas</a>.</p>
<p>Free thought is not merely about gaining more perspectives. It is about duelling perspectives. The left and right could find common ground not in a <a href="https://www.thefire.org/research-learn/campus-disinvitation-database">commitment to mutual cancellation</a>, but in a renewed dedication to debate. We must embrace the value of thinking. </p>
<p>Unfortunately, we often find thought a painful effort. Evolution has shaped us to make decisions using minimal energy, pressuring us to become <a href="https://doi.org/10.1080/13546783.2018.1459314">cognitive misers</a> who are “<a href="https://doi.org/10.1080/13546783.2018.1459314">as stupid as we can get away with</a>”, as psychologist Keith Stanovich argues. Many of us are not merely disinclined to think but actively prefer electrocution to being left alone with our thoughts, <a href="https://www.science.org/doi/full/10.1126/science.1250830">according to one 2014 study</a>.</p>
<p>The rise of generative AI threatens to make this situation worse. One vision of the future imagines <a href="https://www.penguinrandomhouse.com/books/291221/the-singularity-is-near-by-ray-kurzweil/">a singularity</a> where we merge with machines by connecting our brains directly to AI. But what if we approach a bifurcation point rather than a singularity? Humans could become a mere source of animalistic appetites and desires, while machines do the thinking for us.</p>
<p>If we abandon free thought, homo sapiens will have been a brief candle between ape and AI. Humanity’s flame cannot continue to burn in an authoritarian vacuum – it requires the oxygen of freethinking. A right to free thought can give us this air, but we still have to breathe in.</p>
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<img alt="" src="https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=112&fit=crop&dpr=1 600w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=112&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=112&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=140&fit=crop&dpr=1 754w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=140&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=140&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><em>For you: more from our <a href="https://theconversation.com/uk/topics/insights-series-71218?utm_source=TCUK&utm_medium=linkback&utm_campaign=TCUKengagement&utm_content=InsightsUK">Insights series</a>:</em></p>
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<li><p><em><a href="https://theconversation.com/ocd-is-so-much-more-than-handwashing-or-tidying-as-a-historian-with-the-disorder-heres-what-ive-learned-219281?utm_source=TCUK&utm_medium=linkback&utm_campaign=TCUKengagement&utm_content=InsightsUK">OCD is so much more than handwashing or tidying. As a historian with the disorder, here’s what I’ve learned
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<p><em>To hear about new Insights articles, join the hundreds of thousands of people who value The Conversation’s evidence-based news. <a href="https://theconversation.com/uk/newsletters/the-daily-newsletter-2?utm_source=TCUK&utm_medium=linkback&utm_campaign=TCUKengagement&utm_content=InsightsUK"><strong>Subscribe to our newsletter</strong></a>.</em></p><img src="https://counter.theconversation.com/content/220266/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon McCarthy-Jones receives funding from the European Union’s Horizon 2020 program via a Marie Skłodowska-Curie Actions Innovative Training Network.</span></em></p>Corporate and political actors know more about how our minds work than we do. The right to free thought can no longer be our ‘forgotten freedom’Simon McCarthy-Jones, Associate Professor in Clinical Psychology and Neuropsychology, Trinity College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2186322023-11-28T12:04:30Z2023-11-28T12:04:30ZSlapps: inside Europe’s struggle to protect journalists from malicious lawsuits<figure><img src="https://images.theconversation.com/files/561882/original/file-20231127-26-a4smf9.jpg?ixlib=rb-1.1.0&rect=53%2C89%2C5937%2C3889&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock/icedmocha</span></span></figcaption></figure><p>There is a growing threat to the rule of law, democracy and human rights in Europe. It manifests as seemingly run-of-the-mill lawsuits. However, on closer inspection, many lawsuits are not as they seem.</p>
<p>Rather than attempting to remedy a wrong, lawsuits can have a much more insidious goal – to suppress truths and to silence criticism. These lawsuits are known as “strategic lawsuits against public participation” or Slapps.</p>
<p>Slapps target people who speak out on anything from climate change to money laundering. For those who would rather their critics stay silent, and their wrongdoings go unreported, there is a playbook of abusive litigation tactics readily available. </p>
<p>These tactics are enlisted by the rich and powerful to drive up the financial and psychological burden of defending a lawsuit until their opponents are left with no choice but to stop reporting or campaigning. They tend to wipe the public record clean, and to isolate the few who are able to resist attempts at censorship, sometimes with fatal consequences.</p>
<p>Such was the case for <a href="https://theconversation.com/uk/search?q=Daphne+Caruana+Galizia">Daphne Caruana Galizia</a>, the Maltese investigative journalist assassinated on October 16 2017. At the time of her murder, she had dozens of lawsuits pending against her for rigorous reporting on a web of corruption – a chilling reminder of the lengths some people will go to to shut down criticism.</p>
<p>We were recently commissioned to write a <a href="https://www.europarl.europa.eu/RegData/etudes/STUD/2023/756468/IPOL_STU(2023)756468_EN.pdf">report</a> for the EU Parliament analysing the use of such lawsuits across the EU since January 2022. What we found was unsettling.</p>
<p>We identified 47 lawsuits targeting over 100 people, including journalists and campaigners. And these were the cases we were able to identify. It’s clear from the existence of <a href="https://fpc.org.uk/wp-content/uploads/2020/11/Unsafe-for-Scrutiny-November-2020.pdf">anonymised data</a> that these cases are just the tip of the iceberg.</p>
<p>These 47 cases concerned over 80 public interest matters, including journalistic reporting on corruption and financial crime. If the Slapps succeed, they could wipe the public record of important information that would influence everything from how we vote to what we consume. These lawsuits thereby have a chilling effect far beyond the immediate target.</p>
<p><strong>Who gets Slapped?</strong></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/561863/original/file-20231127-29-d7yf1y.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A chart showing that journalists, media outlets and NGOs are the most common target of SLAPPs." src="https://images.theconversation.com/files/561863/original/file-20231127-29-d7yf1y.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/561863/original/file-20231127-29-d7yf1y.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=249&fit=crop&dpr=1 600w, https://images.theconversation.com/files/561863/original/file-20231127-29-d7yf1y.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=249&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/561863/original/file-20231127-29-d7yf1y.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=249&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/561863/original/file-20231127-29-d7yf1y.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=312&fit=crop&dpr=1 754w, https://images.theconversation.com/files/561863/original/file-20231127-29-d7yf1y.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=312&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/561863/original/file-20231127-29-d7yf1y.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=312&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Where Slapps land.</span>
<span class="attribution"><span class="source">Author provided.</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>There is a clear need for the EU to protect freedom of expression and the freedom of the press by empowering people like Caruana Galizia to ask courts to strike out these abusive lawsuits at an early stage. And this is precisely what the EU is doing. EU legislators are now negotiating the final text of an Anti-Slapp directive, colloquially termed “Daphne’s law”.</p>
<p>However, our report shows some of the small changes proposed to the language of Daphne’s law could leave most Slapp victims outside its protection.</p>
<h2>Immediate stumbling block</h2>
<p>For the EU to legislate on Slapps, it first had to establish that it had the power to do so. This was confirmed via article 81 of the Treaty on the Functioning of the European Union, which allows the EU to legislate on matters with cross-border implications. So, for a Slapp to come within the scope of the proposed protections, it must first be classified as having “cross-border implications”. This is where the first problem arises.</p>
<p>There is disagreement between the EU institutions as to what amounts to a cross-border implication. The European Commission proposes that it means any civil lawsuit where at least one of the parties involved lives in a different EU member state to where the lawsuit is being heard or where the communication (for example, a newspaper article or blogpost) concerns a matter of public interest which is relevant to more than one member state or where the claimant has opened a legal action in more than one member state. </p>
<p>The Council of the European Union, which is made up of ministers from the member states’ governments, on the other hand, wants to remove any definition. This would produce uncertainty and could end up removing most cases from the scope of the directive. </p>
<p>There is a <a href="https://europeanjournalists.org/blog/2023/06/09/eu-council-adopts-watered-down-position-on-anti-slapp-directive/#:%7E:text=The%20Council%20of%20the%20European%20Union%20adopted%20today,journalists%2C%20activists%2C%20and%20other%20public%20watchdogs%20across%20Europe.">fear</a> that without a clear definition in the directive, states would be free to adopt a narrow definition of “cross-border” as only capturing cases where the defendant lives in a different country to the court hearing the case.</p>
<h2>Most cases are cross-border</h2>
<p>We found that over 85% of cases concerned public interest matters which were relevant to more than one member state. One of the cases, for example, related to the procurement of medical supplies during the COVID-19 pandemic. Another targeted three journalists reporting on alleged corruption in Bulgaria, at its border with Turkey and Greece.</p>
<p>On the other hand, the domicile of the defendant and the court differed in only 4% of cases. This means that if the second part of the Commission’s understanding is left out of the final directive, or if, as the Council suggests, the definition of cross-border implications is removed entirely, we might see a situation where only a small percentage of Slapp victims are protected by the directive.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/slapps-the-rise-of-lawsuits-targeting-investigative-journalists-169505">Slapps: the rise of lawsuits targeting investigative journalists</a>
</strong>
</em>
</p>
<hr>
<p>The other big issue is that the proposal sets too high a bar for dismissing a Slapp. The target has to prove that the Slapp is unfounded beyond any reasonable doubt. Any Slapp claimant with a competent lawyer can defeat such a challenge – and that certainly tends to be the case for the powerful actors who often bring Slapp claims. </p>
<p>The impact of this hurdle cannot be overstated. None of the cases we analysed could meet such a standard. Instead, the EU should protect people whenever these lawsuits show signs of being abusive.</p>
<p>Without freedom to genuinely report on matters of public interest, our democracies will slowly wither. As the Anti-Slapp directive makes its way through the final stages of the legislative process, now is a pivotal time to remember what is at stake. </p>
<p>Anti-Slapp laws do not only seek to protect the Slapp target – they are an attempt to ensure that information is a public resource and not one controlled by the rich and powerful.</p><img src="https://counter.theconversation.com/content/218632/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Francesca Farrington has consulted to the European Parliament, the United Nations Office of the High Commissioner for Human Rights, and the Coalition Against SLAPPs in Europe (CASE). </span></em></p><p class="fine-print"><em><span>Justin Borg-Barthet has consulted to the European Parliament, the European Commission, the United Nations Office of the High Commissioner for Human Rights, and the Coalition Against SLAPPs in Europe (CASE). </span></em></p>Anti-SLAPP legislation is being drawn up to protect journalists from being hounded out of reporting on corruption – but agreeing on key definitions is proving difficult.Francesca Farrington, Lecturer in Commercial Law, University of AberdeenJustin Borg-Barthet, Professor of Private International Law and EU law, University of AberdeenLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2167592023-11-01T13:32:55Z2023-11-01T13:32:55ZPalestine protest arrests: why even police are confused about hate crime law<p>Though it’s happening thousands of miles away, the Israel-Gaza conflict has aggravated tensions in the UK. In London, authorities <a href="https://www.reuters.com/world/uk/antisemitic-islamophobic-offences-soar-london-after-israel-attacks-2023-10-20/">have recorded</a> a 1,353% increase in antisemitic offences and a 140% increase in anti-Muslim offences during October compared to last year. In this emotionally charged environment, police have faced immense pressure to address hate crime, including by <a href="https://inews.co.uk/news/met-police-suella-braverman-pressuring-reach-beyond-law-jihad-protest-2705340">making arrests at protests</a>.</p>
<p>Over the last few weekends, more than 100,000 people have attended pro-Palestinian demonstrations. There has been a heavy police presence, and at least nine people have been arrested. At a recent protest, police arrested <a href="https://news.met.police.uk/news/five-charged-following-protests-in-central-london-474469">three people</a> for “racially aggravated offences”.</p>
<p>London’s Metropolitan police faced particular criticism for not arresting a man who was recorded chanting <a href="https://www.theguardian.com/world/2023/oct/22/people-chanting-jihad-in-london-inciting-violence-says-robert-jenrick">“jihad”</a> at a demonstration. Director of public prosecutions, Mark Hill KC, <a href="https://www.telegraph.co.uk/news/2023/10/27/max-hill-jihad-chant-not-automatic-hate-crime-cps-hamas/">stated</a> that such an incident was not automatically a hate crime. Senior officers explained further that this is because the word jihad can “mean a lot of things to a lot of people”. </p>
<p>Met commissioner Mark Rowley has said the force is policing within the confines of the law. But the law on hate crimes is extraordinarily complicated – so much so that even the police are expecting the government to <a href="https://www.bbc.co.uk/news/uk-politics-67197002">clarify it</a>.</p>
<h2>What is the law on hate crime, and when does it apply?</h2>
<p>When it comes to speech and placards displayed at a protest, prosecuting a hate crime is a highly complex process. </p>
<p>Hate crimes involving racist or anti-religious language expressed in (non-online) public spaces are typically prosecuted in one of two ways. The first is a two-stage process, using a combination of provisions under the Public Order Act 1986 and the Crime and Disorder Act 1998.</p>
<p>Under <a href="https://www.legislation.gov.uk/ukpga/1986/64/section/4A">one section</a> of the Public Order Act, an offence is committed where a person uses words (either verbally or in writing) or exhibits behaviour that is deemed “threatening, abusive, or insulting” and intends to cause a person “harassment, alarm or distress”. </p>
<p>The words “threatening, abusive, or insulting” are not defined in the act, so it is up to a magistrate or jury to determine whether the speech in question reaches the threshold for any of those words. Some limited guidance has emerged from the court of appeal, which has suggested that even “annoying” or “rude and offensive” behaviour may not necessarily amount to something “insulting”. </p>
<p>Even if the accused’s expression meets the threshold, a conviction could still be challenging in the context of a large protest. The law states that the speech must be targeted at a specific individual, who as a result feels harassed, alarmed or distressed.</p>
<p>Prosecutors could turn to <a href="https://www.legislation.gov.uk/ukpga/1986/64/section/5">a different section</a> of the law, which has a narrower definition in that the language used must be either “threatening or abusive” – not merely “insulting”. However, it is broader in that the prosecution needs only prove that the incident occurred “within the hearing or sight of a person likely to be caused harassment, alarm, or distress”. Given that protests are public events where the purpose is for others to hear what is being said, this requirement is more likely to be satisfied.</p>
<p>If there is enough evidence for an offence to fall under either of these sections, the prosecution must then assess whether the offence could be “racially or religiously aggravated”. They do this by applying separate provisions set out in the Crime and Disorder Act. This law requires that the offender either demonstrated, or was (wholly or partly) motivated, by “hostility” based on the victim’s (presumed) membership of a racial or religious group. </p>
<p>The term “hostility” is not defined in the law, and again is a question for a magistrate or jury to determine. The Crown Prosecution Service (CPS) applies a broad definition of hostility when preparing evidence for prosecution, which includes “ill-will, ill-feeling, spite, prejudice, unfriendliness, antagonism, resentment, and dislike”.</p>
<h2>The challenge of prosecuting racial hatred</h2>
<p>The other possible route to prosecution would require proving that a person used speech or writing that “stirs up racial or religious hatred”.</p>
<p>This differs from the above in that the prosecution need only refer to one piece of legislation. For example, under <a href="https://www.legislation.gov.uk/ukpga/1986/64/section/18">section 18</a> of the Public Order Act, a person commits the offence of “stirring up racial hatred” where they use “threatening, abusive, or insulting” words, behaviour, or written material and either “intend” to stir up racial hatred, or understand that in the circumstances, it is “likely to be stirred up”. </p>
<p>Hatred is not defined in law but is generally considered by the CPS to be a very strong emotion. It is likely that stirring up racial tension or even provoking hostility towards a racial group is not enough to proceed with a case.</p>
<p>The CPS must also gain the consent of the attorney general to prosecute such cases. For these reasons only a <a href="https://www.cps.gov.uk/publication/cps-quarterly-data-summaries">handful of cases</a> reach court each year. </p>
<h2>Freedom of expression</h2>
<p>In all criminal cases, prosecutors must consider whether it is in the <a href="https://www.cps.gov.uk/publication/code-crown-prosecutors">public interest</a> to bring the case to court. </p>
<p>This includes considering whether prosecution would violate the accused’s freedom of expression rights, protected by the <a href="https://fra.europa.eu/en/law-reference/european-convention-human-rights-article-10">European Convention on Human Rights</a>. This right is often considered alongside a defence, provided for some of the offences considered above, that their conduct was “reasonable”. Context is key, and the fact that an individual is participating in a protest (also a protected right) will also need to be considered. </p>
<p>Given the complex web of provisions required to bring a case to court, the law on hate crime could certainly be <a href="https://www.gov.uk/government/publications/hate-crime-laws-final-report">improved</a>. But, ultimately, the accused’s human rights must be weighed against the state’s responsibility to confront harmful instances of prejudice and hatred. This will always be a complicated – but crucial – balance.</p><img src="https://counter.theconversation.com/content/216759/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Walters does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A legal expert explains the complicated process of prosecuting speech hate crimes.Mark Walters, Professor of Criminal Law and Criminology, University of SussexLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2116422023-09-13T15:39:31Z2023-09-13T15:39:31ZPatricio Guzmán: fierce filmmaker who chronicled 50 years of Chile’s history after Pinochet coup<p>This week marks half a century since the beginning of <a href="https://www.theguardian.com/world/2006/dec/11/chile.pinochet4">Augusto Pinochet’s</a>
brutal 17-year dictatorship – a dark and devastating period of Chile’s history that continues to leave scars on the South American country.</p>
<p>On September 11 1973, Pinochet led a <a href="https://nacla.org/news/2011/9/11/september-11-and-story-behind-coup">right-wing military coup</a>, ending the democratically-elected socialist Popular Unity coalition of President <a href="https://english.elpais.com/international/2023-09-09/salvador-allende-according-to-biographer-mario-amoros-an-elegant-freemason-far-from-the-typical-image-of-a-socialist-revolutionary.html">Salvador Allende</a>.</p>
<p>Anyone wanting to understand Chile’s turbulent political and social recent history should turn to the films of <a href="https://mubi.com/en/cast/patricio-guzman">Patricio Guzmán</a>, the country’s most important documentary filmmaker, who has just been honoured with <a href="https://www.cinematropical.com/cinema-tropical/patricio-guzmn-is-the-2023-recipient-of-chiles-national-arts-prize">Chile’s National Arts Prize</a> for his work.</p>
<p>His significance as a filmmaker is being marked with a <a href="https://www.cinematropical.com/new-events/patricio-guzmn-dreaming-of-utopia-50-years-of-revolutionary-hope-and-memory">retrospective of his work</a> in a collaboration with Cinema Tropical and Icarus Films in New York this month. The week-long event, Dreaming of Utopia: 50 Years of Revolutionary Hope and Memory, features cinema screenings of Guzmán’s films including new restorations of the previously unreleased <a href="https://icarusfilms.com/if-firsty">The First Year</a> (1972) and his classic film <a href="https://www.facebook.com/CinemaTropical/videos/1360863011134450">The Battle of Chile</a> (1975).</p>
<p>This is welcome recognition. Despite being an important <a href="https://www.imdb.com/name/nm0350099/awards/?ref_=nm_ql_2">award-winning filmmaker</a> with an international reputation, Guzmán’s work deserves to be more widely known.</p>
<h2>In exile under Pinochet</h2>
<p>Like so many Chileans under Pinochet’s dictatorship, Guzmán was forced into exile in 1973 following a period in the <a href="https://theconversation.com/general-pinochets-long-shadow-still-hangs-over-chiles-national-stadium-70305">notorious Estadio Nacional</a> (National Stadium), where many thousands of political prisoners were tortured and murdered. After some time in Cuba and Spain, the director made his home in France. </p>
<p>As someone directly affected by the dictatorship, his films combine the personal with the political. A fiercely partisan defender of Salvador Allende, there is no neutral point of view in Guzmán’s films. They celebrate popular protest and struggles for democracy and equality. They reserve their ire for Pinochet and his legacy, including the <a href="https://www.hrw.org/reports/1999/chile/Patrick-01.htm">atrocities</a> committed by the <a href="https://irp.fas.org/world/chile/dina.htm">military police</a> under his command. </p>
<p>In an <a href="https://www.patricioguzman.com/libros">interview with Jorge Ruffinelli</a> in his book on the director, Guzmán describes the role of documentary film as:</p>
<blockquote>
<p>The critical conscience of a society. It represents the historical, ecological, artistic and political analysis of a society. A country without documentary cinema is like a family without a photograph album.</p>
</blockquote>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/tAn29OiKqA0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
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<h2>Battling for Chile</h2>
<p>The Battle of Chile regularly features in lists of best political films and documentaries. It is a three-part, four-and-a-half-hour epic that captures Chile’s complex political landscape and the deep divisions that led to Pinochet’s coup in 1973.</p>
<p>The personal cost of the film is apparent in its opening dedication to the memory of Jorge Müller Silva, the film’s cameraman who was <a href="https://www.ejumpcut.org/archive/onlinessays/JC08folder/ChileMurders.html">tortured and “disappeared”</a> by the military police.</p>
<p>One of its most famous scenes illustrates a shocking clash between a peaceful camera shot and a violent gun shot through the footage of Argentinean cameraman Leonardo Hendrickson, who <a href="https://www.latimes.com/entertainment/movies/la-ca-mn-patricio-guzman-chile-films-20151004-story.html">records his own death</a>, as the camera is left running after he is fired on by a solider. The film was described by Guardian journalist <a href="https://www.theguardian.com/film/2002/sep/14/books.featuresreviews">Andy Beckett</a> as “the sacred text of the general’s opponents at home and abroad”.</p>
<p>Its legacy at home is the subject of Guzmán’s <a href="https://icarusfilms.com/if-chile">Chile, Obstinate Memory</a> (1998), a film about the screening of The Battle of Chile on his return to the country in 1996. Banned during the dictatorship, the film is shown, to emotional effect, to young people with little knowledge of the nation’s recent history other than that sanctioned by the military regime, as well as to veterans and survivors of the dictatorship.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-disappearance-became-a-global-weapon-of-psychological-control-50-years-on-from-chiles-us-backed-coup-213014">How disappearance became a global weapon of psychological control, 50 years on from Chile's US-backed coup</a>
</strong>
</em>
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<hr>
<p>The two protagonists of this Chilean history and all that they represent have marked Guzmán’s work. His film <a href="https://icarusfilms.com/if-sal">Salvador Allende</a> was released in 2004, followed by <a href="https://icarusfilms.com/if-pino">The Pinochet Case</a> in 2006, which is an exploration of the international and national attempts to bring the dictator to trial.</p>
<p>More important films follow in a remarkable career, including his trilogy <a href="https://www.imdb.com/title/tt1556190/">Nostalgia for the Light</a> (2010), <a href="https://www.imdb.com/title/tt4377864/?ref_=nm_flmg_t_3_dr">The Pearl Button</a> (2015) and <a href="https://www.imdb.com/title/tt9567718/?ref_=nm_flmg_t_2_dr">The Cordillera of Dreams</a> (2019), all of which, the films’ distributor Icarus Films explains, <a href="https://icarusfilms.com/if-cord#:%7E:text=Winner%20of%20the%20Best%20Documentary,his%20native%20country%20of%20Chile">investigate</a> “the relationship between historical memory, political trauma and geography in his native country of Chile”. </p>
<h2>The feminist revolution</h2>
<p>The roots of the <a href="https://www.hrw.org/world-report/2021/country-chapters/chile">recent Chilean mass protests</a> known as the <em>estallido social</em> (social explosion) are explored in Guzmán’s remarkable film, <a href="https://icarusfilms.com/if-imagin">My Imaginary Country</a> (2022). As he says in his documentary, the director wanted to discover how “a whole people had woken up 47 years after Pinochet’s coup in a so-called social outburst, a major rebellion or even a revolution”. </p>
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<p>In contrast to The Battle for Chile, a film in which men dominate the public space, the answer lies with the women activists who feature, and who make up all of the interviewees. My Imaginary Country reveals a Chile riven by deep structural inequality and subjugated by a militarised police force (<em>carabineros</em>) <a href="https://www.hrw.org/world-report/2020/country-chapters/chile">seemingly at war with its own population</a>.</p>
<p>Yet the film shows Chilean women fighting for a peaceful future. One image shows a protestor’s powerful slogan: <em>La Revolución será feminista o no será</em> – the Revolution will be feminist or it will not happen at all. </p>
<p>This message permeates the film and is encapsulated by the central role of the <a href="https://artistsatriskconnection.org/story/lastesis">feminist theatre collective LasTesis</a>. As my co-author Deborah Martin and I pointed out in our <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/blar.13215">research paper</a> on LasTesis, their street performance of the song A Rapist in Your Path, which calls out state-sanctioned rape culture, went viral globally in 2019, the year of the <em>estallido</em>. </p>
<p>In December 2021 the new president-elect Gabriel Boric <a href="https://www.pressenza.com/2021/12/gabriel-boric-speech-as-president-elect/#:%7E:text=Today%20is%20a%20day%20of,governing%20with%20all%20the%20people.">thanked the women of Chile</a> after beating the far-right Catholic candidate José Antonio Kast. Boric promised to defend the rights they had “worked so hard to achieve”.</p>
<p>Memory is central to the films of Patricio Guzmán, but a key point in My Imaginary Country is that if Chile wants to escape from the cycle of violence and repression his films have chronicled, the future has to be led by women’s movements. Ever the documentarian, no doubt he will be watching how his country responds with interest.</p>
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<img alt="" src="https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536131/original/file-20230706-17-460x2d.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<hr><img src="https://counter.theconversation.com/content/211642/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Deborah Shaw does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As a passionate and partisan defender of Allende’s socialism, Guzmán’s films celebrate popular protest and struggles for democracy and equality in Chile.Deborah Shaw, Professor of Film and Screen Studies, University of PortsmouthLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2099842023-07-30T11:14:46Z2023-07-30T11:14:46ZZimbabwe’s ‘Patriotic Act’ erodes freedoms and may be a tool for repression<figure><img src="https://images.theconversation.com/files/539472/original/file-20230726-23-fk6s12.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Zimbabwe's repressive new law will further erode civilian rights.</span> <span class="attribution"><span class="source">Jekesai Njikizana /AFP/ via Getty Images</span></span></figcaption></figure><p>The <a href="https://www.theindependent.co.zw/local-news/article/200012321/parliament-passes-a-bill-that-seeks-to-punish-unpatriotic-citizens">introduction</a> of the controversial “Patriotic Act” in Zimbabwe will contribute to the erosion of political and civil liberties in a country that has been in the grip of one political party since independence in 1980.</p>
<p>President Emmerson Mnangagwa signed the new act, officially called the <a href="https://www.law.co.zw/download/criminal-law-codification-and-reform-amendment-act-2023">Criminal Law Codification and Reform Amendment Act, 2023</a>, into law on 14 July. His government said the law was <a href="https://www.herald.co.zw/as-patriotic-zimbabweans-celebrate-occasion/">indispensable</a> to holding accountable those who jeopardised national interests. It allows for monitoring and suppressing of political organisations and journalists who are critical of the government. </p>
<p>It carries harsh sentences, including death, for acts the government deems to be <a href="https://www.amnesty.org/en/latest/news/2023/07/zimbabwe-presidents-signing-of-patriotic-bill-a-brutal-assault-on-civic-space/">“unpatriotic”</a>. </p>
<p>Such a law, in a country with a <a href="https://www.cambridge.org/core/books/election-violence-in-zimbabwe/FE079C46754D9F31DB5E3D5CE7AC4B38">history</a> of abuses of individual freedoms, will further undermine the right to freedom of expression enshrined in the <a href="https://www.veritaszim.net/sites/veritas_d/files/Constitution%20of%20Zimbabwe%20Amendment%20%28No.%2020%29.pdf">constitution</a>.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ezekiel-guti-revered-zimbabwean-church-leader-who-preached-hard-work-and-morals-over-miracles-209556">Ezekiel Guti: revered Zimbabwean church leader who preached hard work and morals over miracles</a>
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<p>I have researched post-liberation Zimbabwe’s political economy and noted how the ruling Zanu-PF party has become <a href="https://journals.co.za/doi/abs/10.10520/ejc-afrins-v49-n4-a10">conflated</a> with the state. The party-dominated legislature passes laws that erode political and civil liberties. The new act represents another move by the party to tighten its grip on power.</p>
<p>In my view, the act will enable the government to label legitimate criticism as <a href="https://www.theindependent.co.zw/local-news/article/200012321/parliament-passes-a-bill-that-seeks-to-punish-unpatriotic-citizens%20%22%22">unpatriotic behaviour</a>. It will, for instance, <a href="https://www.news24.com/news24/africa/news/zimbabwe-passes-draconian-patriotic-bill-ahead-of-elections-20230601">penalise</a> individuals who hold meetings with foreign diplomats. </p>
<p>As the French philosopher <a href="https://citeseerx.ist.psu.edu/document?repid=rep1&type=pdf&doi=aabd337816cd732dcb43b782fc269daeca4ed67b">Montesquieu</a> stated in 1742, </p>
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<p>There is no crueller tyranny than that which is perpetrated under the shield of law and in the name of justice.</p>
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<h2>‘National interest’</h2>
<p>Opposition activists have <a href="https://www.voanews.com/a/zimbabwe-rights-groups-opposition-furious-over-signed-patriotic-bill-/7184729.html">expressed concern</a> that the law is designed to punish citizens, civil society organisations and political adversaries of the ruling party. Zimbabwe is due to hold general elections <a href="https://www.electionguide.org/elections/id/4047/">on 23 August</a>. The government could launch a crackdown on dissent. </p>
<p>Some people see the act as a response to the <a href="https://www.congress.gov/107/plaws/publ99/PLAW-107publ99.pdf%22">sanctions</a> the United States imposed on the Zimbabwean government in 2001 for human rights abuses. The state-owned <a href="https://www.herald.co.zw/the-patriotic-bill-a-necessity-for-vision-2030/">The Herald</a> newspaper said the law was a response to Zimbabweans who advocated for the enforcement of sanctions on Zimbabwe. </p>
<p>The government has exploited the sanctions as a <a href="https://www.dailymaverick.co.za/article/2021-10-20-corruption-and-state-capture-not-sanctions-are-the-cause-of-zimbabwes-economic-meltdown/">pretext</a> to suppress dissent and shift the blame for the country’s problems.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/economic-reforms-wont-fix-zimbabwes-economy-ethical-leadership-is-also-needed-170569">Economic reforms won't fix Zimbabwe’s economy. Ethical leadership is also needed</a>
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<p>While the Patriotic Act <a href="https://www.veritaszim.net/node/6068">amends</a> the criminal law code to include mandatory minimum prison terms for rape sentences, it also criminalises acts it deems as</p>
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<p>wilfully injuring sovereignty and national interests of Zimbabwe. </p>
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<p>The problem lies in the broad definition of “national interests”. This can be manipulated to serve political agendas. It could be interpreted in a way that compromises individual freedoms and hinders government accountability. For instance, opposition activists have previously been <a href="https://www.herald.co.zw/fadzai-mahere-and-ccc-trying-to-destroy-zimbabwe/">accused</a> of treason and unpatriotic behaviour for expressing concerns about human rights abuses in Zimbabwe at the United Nations Human Rights Commission. Using this law, individuals who express concerns about human rights abuses and corruption could be targeted for unpatriotic behaviour.</p>
<p>For example, the TV news network Al Jazeera recently <a href="https://www.youtube.com/watch?v=evWEuVR1XIs">exposed</a> a case of gold smuggling corruption involving public officials in Zimbabwe. The revelations could potentially lead to the arrest of journalists behind the revelations. </p>
<h2>What can be done?</h2>
<p>The Patriotic Act contravenes Zimbabwe’s <a href="https://www.veritaszim.net/sites/veritas_d/files/Constitution%20of%20Zimbabwe%20Amendment%20%28No.%2020%29.pdf">constitution</a>, which upholds the right to freedom of expression. This fundamental right is meant to foster an environment conducive to peaceful demonstrations and the presentation of petitions. </p>
<p>Zimbabwe is also bound by international and regional instruments that protect freedom of expression. They include the <a href="https://au.int/sites/default/files/treaties/36390-treaty-0011_-_african_charter_on_human_and_peoples_rights_e.pdf">African Charter on Human and Peoples’ Rights</a>. The Southern African Development Community <a href="https://www2.ohchr.org/english/law/compilation_democracy/sadcprinc.htm">principles and guidelines</a> governing democratic elections also emphasise the importance of freedom of expression. Zimbabwe is a member of the grouping.</p>
<p>Sadly, both the African Union and the Southern African Development Community have failed to prevail on Zanu-PF to uphold the human rights of Zimbabweans.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/animal-farm-has-been-translated-into-shona-why-a-group-of-zimbabwean-writers-undertook-the-task-206966">Animal Farm has been translated into Shona – why a group of Zimbabwean writers undertook the task</a>
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<p>Civil society organisations need to collaborate with media outlets to show the act’s potential impact on society. That way, the public will get a broader understanding of the act’s negative effects. That might spur Zimbabweans to challenge the oppressive act, and defend their individual and collective liberties.</p>
<p>Social media could be pivotal in mobilising resistance to the Patriotic Act. Twitter, Facebook and WhatsApp have proven effective in disseminating information and rallying public opinion against oppression in Zimbabwe. There is also a need for active citizen participation to resist the Patriotic Act. The 2016 <a href="https://www.npr.org/sections/parallels/2017/12/10/569757806/fight-for-rights-will-continue-in-zimbabwe-thisflag-movement-pastor-vows">#ThisFlag</a> resistance movement is an example. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/analysis-across-africa-shows-how-social-media-is-changing-politics-121577">Analysis across Africa shows how social media is changing politics</a>
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<p>But, given the Zimbabwean government’s history of repression, a stronger solution would be for citizens to use their votes in the upcoming elections in August to choose a new government that would uphold their rights and human dignity.</p><img src="https://counter.theconversation.com/content/209984/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tinashe Sithole does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Opposition activists have previously been accused of treason and unpatriotic behaviour for expressing concerns about human rights abuses.Tinashe Sithole, Post-doctoral research fellow at the SARChI Chair: African Diplomacy and Foreign Policy at the University of Johannesburg, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2083492023-07-03T11:53:21Z2023-07-03T11:53:21ZThe Colorado website designer’s win is one of dozens of federal cases where religious beliefs and LGBTQ+ rights have clashed – and the pattern might not be what you think<figure><img src="https://images.theconversation.com/files/534218/original/file-20230627-17-9zpqxh.jpg?ixlib=rb-1.1.0&rect=3%2C9%2C2114%2C1400&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Viewed over decades, the Supreme Court's record on religion-related cases is more complicated than recent headlines suggest.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/sunrise-royalty-free-image/657130668?phrase=supreme+court&adppopup=true">Phil Roeder/Moment via Getty Images</a></span></figcaption></figure><p>Does a Colorado designer’s belief that marriage is between one man and one woman merit an exemption to state law barring discrimination against LGBTQ+ people? On June 30, 2023, the Supreme Court <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">decided 6-3 that the answer is yes</a>: Requiring a conservative Christian business owner to create wedding websites for gay couples would violate the free speech clause of the First Amendment.</p>
<p>Creating a website constitutes an “expressive activity” protected by the First Amendment, Justice Neil Gorsuch <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">wrote in the majority opinion</a>, and Colorado’s anti-discrimination law would “compel an individual to create speech she does not believe.” Thus, designer Lorie Smith has the right to follow “her conscience about a matter of major significance” and refuse her services for same-sex weddings. </p>
<p><a href="https://www.oyez.org/cases/2022/21-476">303 Creative v. Elenis</a> is the latest of a trio of Supreme Court cases where conservative Christian plaintiffs have argued that they should have the constitutionally protected right to refuse service to LGBTQ+ people. In 2018, it was a Colorado baker <a href="https://www.oyez.org/cases/2017/16-111">refusing to bake a cake</a> for a gay wedding. In 2021, <a href="https://www.oyez.org/cases/2020/19-123">it was a Catholic adoption agency</a> arguing it should not be forced to place foster children with gay couples and thus be exempt from Philadelphia’s nondiscrimination policy.</p>
<p>These cases are no doubt important, signaling a broader trend on the current court, which has frequently <a href="https://theconversation.com/how-the-supreme-court-found-its-faith-and-put-religious-liberty-on-a-winning-streak-158509">ruled in favor of Christian plaintiffs</a> on high-profile cases, particularly when it comes to cases that also involve gender and sexuality – although the Colorado baker’s win was <a href="https://www.theatlantic.com/ideas/archive/2018/06/the-court-slices-a-narrow-ruling-out-of-masterpiece-cakeshop/561986/">a narrow one</a> that avoided broader questions about civil rights, free speech and free religious exercise.</p>
<p>The big-picture view, however, is more complicated.</p>
<p><a href="https://soc.unl.edu/emily-kazyak">As sociologists</a> of <a href="https://kelsyburke.com">religion and sexuality</a>, we have <a href="https://doi.org/10.1007/s13178-023-00812-4">analyzed every federal court case between 1990 to 2020</a> that involves religious beliefs and LGBTQ+ people’s rights – a total of 62 cases. From this analysis, we know that the ruling in 303 Creative LLC v. Elenis runs counter to legal patterns of the past 30 years. </p>
<p>The latest Supreme Court rulings make it seem as if cases that deal with plaintiffs’ faith are usually successful in federal courts. More broadly, however, <a href="https://press.princeton.edu/books/paperback/9780691180953/the-impossibility-of-religious-freedom">the opposite is true</a>. Throughout U.S. history, litigants have drawn from ideas about religious liberty to attempt to justify violating the law, whether related to taxes, child labor, desegregation or dress codes. Most of the time they lose, and cases related to LGBTQ rights <a href="https://link.springer.com/article/10.1007/s13178-023-00812-4">are no exception</a>. </p>
<h2>Three types of claims</h2>
<p>Cases that involve religious freedom can take many forms. We focused our analysis on three types: those based on <a href="https://www.law.cornell.edu/wex/free_exercise_clause">the free exercise clause</a> of the First Amendment; those about free speech, as in 303 Creative, that are also based on <a href="https://www.law.cornell.edu/wex/first_amendment">the First Amendment</a>; and religion claims citing <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964">Title VII of the Civil Rights Act</a>, which prohibits employment discrimination.</p>
<p><a href="https://doi.org/10.1007/s13178-023-00812-4">We found that</a> in only 21 of the 62 cases did a federal court side side with the religious litigant. What’s more, courts ruled in favor of the litigants’ specific religion-based legal claim – as opposed to some other element of their argument – in only three cases. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three women in coats wave as they walk away from a huge building with tall pillars." src="https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534456/original/file-20230627-21-vcxgx0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lorie Smith, left, the owner of 303 Creative, prepares to speak outside the Supreme Court on Dec. 5, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lorie-smith-a-christian-graphic-artist-and-website-designer-news-photo/1245399675?adppopup=true">Kent Nishimura / Los Angeles Times via Getty Images</a></span>
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</figure>
<p><a href="https://doi.org/10.1017/lsi.2023.5">In our analysis</a>, cases focused on wedding-related services, like 303 Creative, were the most likely to have justices side with the party bringing forth a religion-based claim, or to remand the case for further proceedings. In cases related to employment, housing, incarceration, education or physical and mental health care, on the other hand, <a href="https://www.oyez.org/cases/2019/18-107">federal courts were unlikely</a> to side with religion-based claims.</p>
<p>The relative success of wedding-related cases points to a broader trend we observed. Over time, fewer cases dealt with plaintiffs’ opposition to LGBTQ+ identity and more on LGBTQ+ relationships, specifically same-sex marriage.</p>
<p>Take <a href="https://casetext.com/case/ward-v-polite">Ward v. Polite</a>, a 2012 case where a graduate student in a master’s counseling program requested “that she be allowed to refer gay and lesbian clients seeking relationship advice to another counselor,” even though she, according to case documents, “had no problem counseling gay and lesbian clients.” The university believed that Ward’s refusal to counsel gay and lesbian clients in relationships violated its code of ethics and expelled her from the program.</p>
<p>She <a href="https://www.nytimes.com/2012/02/04/us/when-counseling-and-conviction-collide-beliefs.html">sued the university</a>, claiming it had violated her right to freely exercise her religion. The 6th U.S. Circuit Court of Appeals criticized the university for not having an exception clause to its nondiscrimination policy, which students like Ward could have used to request to transfer a client, and remanded the case for additional proceedings.</p>
<h2>Not always the ‘usual story’</h2>
<p>Our findings also revealed that federal court cases about faith and sexual orientation often affirm a stereotype that <a href="https://barnard.edu/profiles/janet-jakobsen">gender scholar</a> <a href="https://nyupress.org/9781479846085/the-sex-obsession/">Janet Jakobsen</a> calls the “usual story” about religion and LGBTQ+ rights: that the two are in tension with one another. </p>
<p>In other words, even when the court doesn’t side with litigants whose cases are related to their faith, most lawsuits about these topics give the impression that religious beliefs endorse heterosexuality over any alternative. The majority of cases brought over the past 30 years – 50 of the 62 in our sample – were indeed brought by people who say their religious beliefs <a href="https://doi.org/10.1017/lsi.2023.5">oppose LGBT identities or relationships</a>.</p>
<p>Still, there are examples of plaintiffs who <a href="https://doi.org/10.1093/socrel/srab062">use religion-based claims to advance LGBTQ+ rights</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man holding a rainbow-striped flag waves it in front of an ornate building with pillars." src="https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534457/original/file-20230627-20750-1o0jgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A supporter of same-sex marriage waves a pride flag in front of the U.S. Supreme Court to celebrate the eighth anniversary of the Obergefell v. Hodges decision.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/same-sex-marriage-supporter-vin-testa-of-washington-dc-news-photo/1502430450?adppopup=true">Anna Moneymaker/Getty Images</a></span>
</figcaption>
</figure>
<p>For instance, attorney Robin Joy Shahar <a href="https://www.casebriefs.com/blog/law/family-law/family-law-keyed-to-weisberg/alternative-families/shahar-v-bowers/">sued the attorney general of Georgia</a>, Michael Bowers, after he withdrew his job offer to her upon finding out that she married her partner, another woman, in a religious ceremony. The case, Shahar v. Bowers, was eventually decided in 1997, when <a href="https://www.washingtonpost.com/news/post-nation/wp/2018/02/15/he-was-convicted-of-a-sex-act-thats-no-longer-a-crime-years-later-hes-deemed-a-sex-offender/">sodomy laws were still on the books</a>, and long before U.S. states legally recognized same-sex marriages – a fact the court emphasized by putting quotation marks around every reference to Shahar’s marriage and wedding.</p>
<p>Shahar, who had held a Jewish wedding ceremony at her synagogue, argued that the attorney general had violated her right to freely exercise her religion, among other rights. But the U.S. Court of Appeals for the 11th Circuit sided with Bowers, reasoning that the interests of the government – in this case the attorney general’s office – outweighed Shahar’s individual rights. </p>
<p>Other litigants have integrated their religious beliefs or identity into federal court arguments, seeking to protect LGBTQ+ people and their rights. In our analysis, the court ruled against each of their religion-based claims.</p>
<h2>The road ahead</h2>
<p>Today, hours after the court’s decision was announced, it is too early to predict the consequences of the ruling. It’s worth noting, however, that the Supreme Court declined to consider <a href="https://www.law.cornell.edu/supct/cert/21-476">Smith’s claims that Colorado’s law violated the free exercise clause of the First Amendment</a>. In other words, they were willing to consider – and ultimately decided – that the law violated her right to create, or not create, content based on her religious beliefs. Yet they were not willing to consider whether the law impeded her ability to freely practice her faith.</p>
<p>In this way, the court did not overturn precedent related to other forms of religious freedom.</p>
<p>Still, as Justice Sonia Sotomayor noted <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">in her dissent</a> – joined by Justice Elena Kagan and Justice Ketanji Brown Jackson – this ruling leaves open the possibility that other religious business owners will claim their services are “expressive” acts of speech and thus refuse to serve LGBTQ+ people. </p>
<p>“Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">Sotomayor wrote</a>. “The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.”</p><img src="https://counter.theconversation.com/content/208349/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kelsy Burke receives funding from the National Science Foundation. </span></em></p><p class="fine-print"><em><span>Emily Kazyak receives funding from the National Science Foundation. </span></em></p>Two sociologists break down how cases related to plaintiffs’ beliefs and LGBTQ+ rights have fared in federal courts over several decades.Kelsy Burke, Associate Professor of Sociology, University of Nebraska-LincolnEmily Kazyak, Associate Professor of Sociology and Women's and Gender Studies, University of Nebraska-LincolnLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2077062023-06-22T20:07:19Z2023-06-22T20:07:19ZWho benefits most from the protection of free speech – the haves or the have-nots?<figure><img src="https://images.theconversation.com/files/533357/original/file-20230622-33216-dsgdgu.jpg?ixlib=rb-1.1.0&rect=0%2C40%2C6689%2C3450&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>Whether it be repression of free speech under authoritarian regimes or instances of
“<a href="https://www.pewresearch.org/internet/2021/05/19/americans-and-cancel-culture-where-some-see-calls-for-accountability-others-see-censorship-punishment/">cancel culture</a>” in various countries, the importance of freedom of expression <a href="http://www.article19.org">is as hotly contested as ever</a>. But does freedom of speech benefit all groups equally?</p>
<p>In <a href="https://www.sciencedirect.com/science/article/pii/S0167268123002007">recently published research</a>, we tackled the question of who actually benefits the most from having freedom of speech. Is it people with the most resources – either income or education – who benefit more, or is it people with few resources?</p>
<p>The idea that those with resources benefit most falls in line with the “<a href="https://www.simplypsychology.org/maslow.html">hierarchy of needs</a>” developed by American psychologist Abraham Maslow. He argued that people would seek to meet their most pressing needs – such as food and shelter – before looking to achieve “luxuries” such as freedom of speech. </p>
<p>But the view that freedom of speech most benefits those with few resources is consistent with the idea that marginalised people have less scope to influence decisions in society through their spending or networks. They require freedom of speech to influence societal decisions.</p>
<h2>The right to say anything</h2>
<p>The principle of free speech was perhaps best illustrated in 1906 by the writer Evelyn Beatrice Hall, paraphrasing French philosopher Voltaire. She wrote:</p>
<blockquote>
<p>I disapprove of what you say, but I will defend to the death your right to say it.</p>
</blockquote>
<p>Free speech was entrenched as a right by the United Nations in Article 19 of its 1948 <a href="https://www.un.org/en/about-us/universal-declaration-of-human-rights">Universal Declaration of Human Rights</a>:</p>
<blockquote>
<p>Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.</p>
</blockquote>
<p>But it is recognised that even in countries with a high degree of free speech there may be restrictions against <a href="https://lawecommons.luc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1040&context=facpubs">hate speech, terrorism and treason</a>. Following the Christchurch massacre, for example, the terrorist’s manifesto and video were classified as objectionable and <a href="https://www.dia.govt.nz/Response-to-the-Christchurch-terrorism-attack-video">banned from distribution in New Zealand</a>.</p>
<p>And, while the right to freedom of expression is enshrined in most constitutions, people in many countries face restrictions on their speech. During the recent coronation of King Charles, for example, <a href="https://newrepublic.com/article/172508/hold-coronation-britain-suppressed-free-speech-thats-insane">52 protesters in the United Kingdom were arrested</a> before their protest even started. This was criticised as an assault on their free speech. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protesters were arrested during the King’s coronation, including pre-emptive arrests of anti-monarchy activists in London.</span>
<span class="attribution"><span class="source">Wiktor Szymanowicz/Getty Images</span></span>
</figcaption>
</figure>
<h2>Free speech and wellbeing</h2>
<p>Our research tested whether changes in countries’ restrictions on free speech were associated with rises or falls in the wellbeing of well-resourced people relative to poorly-resourced people in those countries.</p>
<p>The analysis included 300,000 individuals from more than 90 countries over a 40-year period. It used wellbeing and other individual data from the <a href="https://www.worldvaluessurvey.org/wvs.jsp">World Values Survey</a> and the <a href="https://www.latinobarometro.org/lat.jsp">Latino Barometer</a> survey. Wellbeing was measured by how people rate the overall quality of their life.</p>
<p>We supplemented the individual wellbeing data with measures of country-level free speech and human rights, sourced from two independently compiled databases (<a href="https://cirights.com/">CIRIGHTS</a> and <a href="https://v-dem.net/">VDEM</a>). Many countries in the surveys had marked changes in their free speech levels over the study period.</p>
<p>The research produced two key findings.</p>
<p>First, people with more resources place greater stated priority on freedom of speech (when asked to rank its importance).</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/oath-keepers-convictions-shed-light-on-the-limits-of-free-speech-and-the-threat-posed-by-militias-195616">Oath Keepers convictions shed light on the limits of free speech – and the threat posed by militias</a>
</strong>
</em>
</p>
<hr>
<p>Second, it was actually the people with fewer resources who benefited most from free speech. The results indicated that free speech empowered those with fewer resources, providing a greater lift to the wellbeing of more marginalised people.</p>
<p>The two results are not incompatible: people with fewer resources may need to prioritise basic needs more than “luxuries” such as free speech but, being in marginalised populations, they may still benefit most from having freedom of expression.</p>
<p>We also found that people who said they valued free speech benefited from living in countries with free speech. And, preferences towards free speech varied according to certain characteristics within the population (in addition to income and education). </p>
<p>Groups more likely to prioritise free speech included the young, students, non-religious people and those on the left of the political spectrum. Preferences also reflected country circumstances, with people in the West being more supportive of free speech than people in other regions of the world.</p>
<h2>In defence of the marketplace of ideas</h2>
<p>In a world in which freedom of speech is increasingly being placed at risk, it may become important to protect the “<a href="https://rdi.org/defining-democracy-marketplace-of-ideas/">marketplace for ideas</a>”. As 19th century thinker John Stuart Mill argued, ideas should “compete” in an open marketplace and be tested by the public to determine which ideas will prevail.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/there-are-differences-between-free-speech-hate-speech-and-academic-freedom-and-they-matter-124764">There are differences between free speech, hate speech and academic freedom – and they matter</a>
</strong>
</em>
</p>
<hr>
<p>Notwithstanding current risks with social media “<a href="https://www.pnas.org/doi/10.1073/pnas.2023301118">echo-chambers</a>”, this basic insight still has much to recommend it. People must be able to express their views and receive the views of others openly. </p>
<p>The UN Declaration of Human Rights emphasises this two-way aspect of freedom of expression – that is, people have “the right to seek, receive and impart information and ideas”.</p>
<p>Countries’ laws should reflect Hall’s insistence about freedom of expression – at a national level we should defend people’s right to say what they want. At a personal level, we should also respect the importance of being a good listener, even when, to paraphrase Hall, we disapprove of what is being said.</p><img src="https://counter.theconversation.com/content/207706/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Arthur Grimes received funding from Victoria University of Wellington and from Motu Research for this work.</span></em></p>New research highlights how the people who value free speech may not be the ones who benefit from it the most.Arthur Grimes, Professor of Wellbeing and Public Policy, Te Herenga Waka — Victoria University of WellingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2047882023-05-10T15:56:58Z2023-05-10T15:56:58ZFor Tunisia’s muzzled media, Arab Spring is now a distant memory<p>“Every afternoon before I leave the office, I turn off my phone and remove the SIM card. I don’t want to authorities to track my whereabouts.” Ayman (anonymised for protection) is one of Tunisia’s most prominent media profiles, and among the dwindling number of journalists who dare to criticise the authorities. Now he expects to be arrested any day. His boss was arrested and interrogated in February.</p>
<p>This is a far cry from the heady days after the fall of the country’s autocrat, Zinedine Ben Ali (1987-2011), when Tunisia’s media sector was revolutionised along with the rest of society. Like in Egypt, the 2011 Arab Spring resulted in the fall of a severely authoritarian regime. Until the fall of Ben Ali Tunisia was a veritable police state. Then, in a very short amount of time, Tunisians managed to set up new and democratic institutions, including a functioning parliament, an accountable presidency and independent courts.</p>
<p>The revolution also sowed the seeds of new and independent media outlets – radio, television and digital newspapers. The state television and radio company, al-Wataniyya, was redesigned to be a public broadcaster along the lines of BBC. The Journalists’ Syndicate proved to be an efficient protector of journalists’ professional rights vis-à-vis the authorities. Tunisians soon got used to critical news coverage and raucous political debates on prime-time TV. Now, all these gains are threatened and ordinary people do not even seem to mind much. What happened?</p>
<h2>The dark side of free media</h2>
<p>Since 2015, we have been studying media-politics relations in Tunisia as part of a research project on <a href="https://www.nupi.no/en/projects-centers/journalism-in-struggles-for-democracy-media-and-polarization-in-the-middle-east">journalism in struggles for democracy</a>. Over the last seven years, we have conducted 53 in-depth interviews and two focus group interviews with Tunisian journalists, activists and politicians. The aim of our interviews was to understand how journalists deal with media instrumentalisation and what political role they play in hybrid settings fluctuating between autocracy and democracy. Our last visit was in March 2023, one and a half years after President Kays Saïed abruptly suspended parliament.</p>
<p>But let us first rewind to 2011, when Tunisia went from a police state where the media was part of Ben Ali’s propaganda system to a suddenly free (and initially chaotic) media environment. The reshaping of the media scene took place in a context of political turmoil: <a href="https://edinburghuniversitypress.com/book-journalism-in-the-grey-zone.html">a hybrid political situation</a> of continuously contested democratisation in which political and business elites were eager to exploit the media for their own purposes. A textbook example of this was the behaviour of Nabil Karoui, a businessman who built his wealth on audiovisual production, digital media, and urban advertising and is CEO of the public relations firm Karoui & Karoui World. As the owner of Tunisia’s most popular TV channels, Nessma, he personally influenced its editorial policies while acting as communication advisor for ex-<a href="https://theconversation.com/remembering-essebsi-the-late-maestro-of-tunisian-politics-122403">President Beji Caid Essebsi</a> (2014-2019). Karoui also appeared in the documentary series <em>Khalil Tunis</em>, devoted to covering the activities of a charity he had set up to fight poverty – at the same time as he founded his own party and his presidential ambitions became ever clearer. While Karoui was a particularly blatant example of media instrumentalisation, many other politicians, media owners and public figures were involved in murky intrigues and deals.</p>
<p>Hard-working journalists in newspapers, radio and television saw the big gain from the revolution – free media – melt away before their eyes, as squabbling politicians and commentators for hire alienated the Tunisian populace from both politics and the news media.</p>
<h2>Populism vs. journalism: President Kais Saïed and the media</h2>
<p>Enter the presidential election of September 2019, which featured two dyed-in-the-wool populists as frontrunners. Both of them represented a danger to free and critical media, but in very different ways. Nabil Karoui, whom we have already mentioned, was a charismatic media magnate who used his own TV channel to manipulate the political climate. The Conservative Kais al-Saïed, who <a href="https://www.france24.com/en/20191014-conservative-kais-saied-elected-president-of-tunisia-with-72-71-percent-of-vote">won the election with 72,71% votes</a>, was a former university lecturer in law who preferred to avoid the news media altogether. Saïed was nicknamed “Robocop” on account of his mechanic style of talking in interviews. His campaign relied not on media, but on grassroots activists going from door to door and arranging public meetings across Tunisia.</p>
<p>Saïed treats the media with the same contempt as he has shown toward political parties and parliamentarism. Journalists we spoke with in March said that the public broadcasting company has been reduced to a propaganda outlet. Saïed avoids relating to the private media, and prefers communicating with the public through announcements on Facebook, a very important communication platform in Tunisia. When the media contact the president’s office for statements on current affairs they receive no reply. It was telling that when a new and tame parliament opened on 13 March, no journalists from independent or foreign media were allowed inside the building so as to prevent <a href="https://www.theguardian.com/world/2023/mar/13/press-banned-from-opening-session-of-new-tunisian-parliament-kais-saied">“disorder”</a>.</p>
<h2>The decline of journalism and the relativization of truth</h2>
<p>The president’s antipathy toward the media goes hand in hand with his intolerance of criticism and predilection for conspiracy theories. His widely reported, racist <a href="https://theconversation.com/tunisia-presidents-offensive-statements-targeted-black-migrants-with-widespread-fallout-201593">rant against sub-Saharan Africans</a> in February is only the tip of the iceberg. Several opposition leaders have been imprisoned since March, accused of <a href="https://www.amnesty.org/en/latest/news/2023/02/tunisia-president-saied-must-immediately-stop-his-political-witch-hunt/">“conspiring to undermine the state”</a>. Noureddine Boutar, the head of Tunisia’s main independent radio channel, Mosaïque, was arrested in February on charges of <a href="https://www.mosaiquefm.net/fr/actualite-national-tunisie/1137635/detention-de-boutar-la-ligne-editoriale-de-mosaique-fm-derange">‘attacking the highest symbol of the state and exacerbating tensions in the country’</a>. Journalists we met in March told us that they are accused of spreading fear among the public (now a punishable crime) when they simply report facts about Tunisia’s many economic and social problems.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/525426/original/file-20230510-11912-8f7uo1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/525426/original/file-20230510-11912-8f7uo1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=903&fit=crop&dpr=1 600w, https://images.theconversation.com/files/525426/original/file-20230510-11912-8f7uo1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=903&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/525426/original/file-20230510-11912-8f7uo1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=903&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/525426/original/file-20230510-11912-8f7uo1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1135&fit=crop&dpr=1 754w, https://images.theconversation.com/files/525426/original/file-20230510-11912-8f7uo1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1135&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/525426/original/file-20230510-11912-8f7uo1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1135&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Since rising to power in 2019, President Saied has increasingly zapped Tunisia’s freedom of speech.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Tunisia-3433_-_Want_to_buy_a_TV......_%287847360164%29.jpg">Dennis Jarvis/Wikimedia</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>There are still strong journalistic voices who speak out against the attacks on liberty of speech. When we interviewed officials at the Journalists’ Syndicate, they took it for granted that they were being surveilled, but they were as defiant as ever, having participated in a <a href="https://www.aljazeera.com/news/2023/3/5/tunisian-opposition-defies-protest-ban-with-rally">march for freedom</a> a couple of days before we met them.</p>
<p>However, the bigger picture is gloomy. Political content has all but disappeared from the previously intensely political TV channels. Journalists who want to do political reporting have difficulties earning a living from it. Moreover, Saïed seems to have succeeded in convincing substantial parts of the population that the news media are part of the corrupt elites and not to be trusted. As a result, people get their news from rumours on Facebook. As one media scholar told us:</p>
<blockquote>
<p>“I had problems convincing my own family that Saïed’s wildly exaggerated claims about the number of sub-Saharan African immigrants were necessarily absurd, because there are no epistemological authorities anymore. Announcements and rumours on Facebook have replaced fact-checked news as a source of information.”</p>
</blockquote>
<p>The dearth of sober, critical journalism does nothing to reduce the intense polarisation in Tunisian politics between <a href="https://www.reuters.com/article/tunisia-politics-idCAKBN2RA05Z">the president, the Islamists, and the reactionary Free Constitutional Party</a>. They all have it in for journalists. Each camp constructs its own reality and viciously attacks those who challenge the relativisation of truth based on <a href="https://inkyfada.com/en/">objective and critical reporting</a>. We should not forget that Tunisian journalists can look to the <a href="https://rsf.org/en/classement/2022/americas">United States</a>, <a href="https://rsf.org/en/classement/2022/europe-central-asia">several European countries</a> and <a href="https://rsf.org/en/country/russia">Russia</a> for parallels to their own situation. Sadly, that does not help them much. Critical, fact-based journalism is under threat in many purportedly free and pluralistic societies, and Tunisia is presently one of the hotspots.</p><img src="https://counter.theconversation.com/content/204788/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jacob Høigilt a reçu des financements de Conseil de recherche de Norvège. </span></em></p><p class="fine-print"><em><span>Kjetil Selvik a reçu des financements du Conseil norvégien de la recherche </span></em></p>Freedom of expression was the one remaining gain of Tunisia’s 2011 revolution, but it is now severely threatened by a populist president.Jacob Høigilt, Professor of Arab studies, University of OsloKjetil Selvik, Research Professor in political science, Norwegian Institute of International AffairsLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1984842023-02-23T13:33:02Z2023-02-23T13:33:02ZNovelist, academic and tattoo artist Samuel Steward’s plight shows that ‘cancel culture’ was alive and well in the 1930s<figure><img src="https://images.theconversation.com/files/511802/original/file-20230222-20-4w67dr.JPG?ixlib=rb-1.1.0&rect=12%2C10%2C1201%2C890&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Outside of teaching and writing, Samuel Steward took up tattooing.</span> <span class="attribution"><a class="source" href="https://static01.nyt.com/images/2010/07/26/books/0726SECRET2/0726SECRET2-jumbo.jpg?quality=75&auto=webp">The Estate of Samuel M. Steward</a></span></figcaption></figure><p>In January 2023, Hamline University <a href="https://www.nytimes.com/2023/01/08/us/hamline-university-islam-prophet-muhammad.html">opted not to renew the contract</a> of an art professor who showed a 14th-century depiction of the Prophet Muhammad in class. Hamline labeled the incident “Islamophobic” and released a statement, co-signed by the university’s president, saying that respect for “Muslim students … should have superseded academic freedom.” </p>
<p>After <a href="https://www.theatlantic.com/newsletters/archive/2023/01/hamline-university-adjunct-professor-freedom/672713/">widespread backlash</a>, the university walked back that statement. However, the lecturer was still not rehired.</p>
<p>Concerns about academic freedom are nothing new. Rather than being a product of recent “<a href="https://theconversation.com/can-we-cancel-cancel-culture-164666">cancel culture</a>,” tension has long existed over the ability of professors to freely teach and write about controversial topics without fear of retribution.</p>
<p>More than 80 years ago, an English professor named <a href="https://www.nytimes.com/2010/07/26/books/26secret.html">Samuel Steward</a> was dismissed from his teaching position after publishing what his college’s president deemed a “racy” novel.</p>
<p><a href="https://works.bepress.com/alessandro-meregaglia/">As an archivist and scholar</a> studying publishing in the American West, I’ve located published and unpublished archival sources detailing the controversy surrounding Steward after he published his first novel, which ultimately cost him his job.</p>
<h2>A book met with backlash</h2>
<p>A native of the Midwest, Steward earned his Ph.D. in English in 1934 from Ohio State University. The following year, Washington State College – now Washington State University – hired Steward to teach classes on a one-year contract.</p>
<p>An aspiring writer, Steward drafted his first novel while still a graduate student. He worked to find a publisher and contacted a small firm in rural Idaho. After an editorial review, Caxton Printers agreed to publish Steward’s novel, “Angels on the Bough,” which told the story of a small group of characters and their intertwined lives in a college town.</p>
<figure class="align-right ">
<img alt="Black and white portrait of man wearing small glasses." src="https://images.theconversation.com/files/511495/original/file-20230221-28-b44wu2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/511495/original/file-20230221-28-b44wu2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=956&fit=crop&dpr=1 600w, https://images.theconversation.com/files/511495/original/file-20230221-28-b44wu2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=956&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/511495/original/file-20230221-28-b44wu2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=956&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/511495/original/file-20230221-28-b44wu2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1201&fit=crop&dpr=1 754w, https://images.theconversation.com/files/511495/original/file-20230221-28-b44wu2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1201&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/511495/original/file-20230221-28-b44wu2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1201&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Caxton Printers founder James H. Gipson.</span>
<span class="attribution"><span class="source">Lehigh University Special Collections</span></span>
</figcaption>
</figure>
<p>Founded in 1907, <a href="https://www.caxtonpress.com/">Caxton Printers</a> has earned national attention for its fierce defense of freedom of expression and unique publishing philosophy. Caxton’s founder, James H. Gipson, understood the transformative power of books and sought to give a voice to deserving writers when other firms rejected them. Profit was not a motivator. As Gipson <a href="https://archiveswest.orbiscascade.org/ark:80444/xv02075">explained</a> to Steward, “We are interested not in making money out of any author for whom we may publish, but in helping him.”</p>
<p>Caxton published “Angels on the Bough” in May 1936. </p>
<p>The book immediately received reviews, almost entirely positive, in dozens of newspapers across the country. <a href="https://www.nytimes.com/1936/05/31/archives/trouble-in-academe-angels-on-the-bough-sm-steward-317-pp-caldwell.html">The New York Times</a> wrote favorably about the novel, describing Steward as possessing “a very distinct gift above the usual.”</p>
<p>And <a href="https://www.poetryfoundation.org/poets/gertrude-stein">Gertrude Stein</a>, the American writer and expatriate who lived most of her life in France, lauded “Angels on the Bough” in a letter she penned to Steward.</p>
<p>“I like it I like it a lot, you have really created a piece of something,” <a href="https://www.google.com/books/edition/Dear_Sammy/A1dbAAAAMAAJ?hl=en&gbpv=1&bsq=%22quite%20definitely%22">Stein wrote</a>. “It quite definitely did something to me.”</p>
<h2>Steward loses his job</h2>
<p>Despite the favorable reception, the book started causing trouble for Steward before it was even published. Review copies reached campus in early May 1936. Steward soon began hearing rumors that college administrators found his book distasteful for its sympathetic portrayal of a prostitute, one of the main characters.</p>
<figure class="align-right ">
<img alt="A yellow book cover." src="https://images.theconversation.com/files/511801/original/file-20230222-26-roekc4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/511801/original/file-20230222-26-roekc4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=873&fit=crop&dpr=1 600w, https://images.theconversation.com/files/511801/original/file-20230222-26-roekc4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=873&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/511801/original/file-20230222-26-roekc4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=873&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/511801/original/file-20230222-26-roekc4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1097&fit=crop&dpr=1 754w, https://images.theconversation.com/files/511801/original/file-20230222-26-roekc4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1097&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/511801/original/file-20230222-26-roekc4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1097&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The publication of ‘Angels on the Bough’ prompted Washington State College to not renew Steward’s contract.</span>
<span class="attribution"><span class="source">Alessandro Meregaglia</span></span>
</figcaption>
</figure>
<p>Yet, as Steward <a href="https://www.google.com/books/edition/Gay_Sunshine_Interviews/T8wYAAAAYAAJ?hl=en&gbpv=1&bsq=%22little%20women%22">noted in an interview</a> during the 1970s, the book was “very tame – reading like ‘Little Women’ by today’s standards.”</p>
<p>Steward sent an urgent telegram to Gipson asking him to stop selling the book on campus: “A young poor man with only one job asks that you withdraw his novel … because his departmental head and dean hint at his discharge.”</p>
<p>Caxton had advertised the book as “not appeal[ing] to the less liberal mind.” This “alarmed several people,” <a href="https://archiveswest.orbiscascade.org/ark:80444/xv02075">according to Steward</a>. The head of the English department told Steward his book contained “unsavory material” and that Steward’s position “would undoubtedly prove very embarrassing” to the college.</p>
<p>Despite this, Steward still planned to return to teach classes the following autumn. Earlier that spring, he had been verbally assured that he would receive another one-year contract. Three weeks later, however – and just hours before he left campus for the summer – Washington State’s president, <a href="https://web.archive.org/web/20100308091433/http:/president.wsu.edu/office/university-governance/past-presidents/holland.html">Ernest O. Holland</a>, summoned Steward to a meeting.</p>
<p>Holland informed Steward his contract would not be renewed. He accused Steward of writing a “racy” novel and of being sympathetic with a <a href="https://content.libraries.wsu.edu/digital/collection/clipping/id/110709/rec/3">student strike</a> a month earlier.</p>
<p>Angered, Steward immediately dashed off a telegram to Gipson: “Discharged by God Holland for writing a racy novel … I have no regrets whatsoever despite the fact his methods were those of Hitler but think I will take up stenography.”</p>
<p>Steward and Gipson both set to work to widely publicize Steward’s dismissal. Steward appealed to the <a href="https://www.aaup.org/">Association of American University Professors</a> for assistance. Founded in 1915, the association’s primary purpose is “to advance academic freedom.” The organization still regularly investigates violations of academic freedom, <a href="https://www.aaup.org/news/aaup-launches-inquiry-hamline-university#.Y_U3HHbMKUk">including what happened at Hamline University</a>.</p>
<p>After months of investigation, the AAUP published <a href="https://www.jstor.org/stable/40219810">its report</a>. It determined that Steward had been unjustly let go and concluded that “President Holland’s handling of the Steward case has been most ill-judged, and indicates … improper restriction of literary freedom.”</p>
<h2>From teaching to tattooing</h2>
<p>After leaving Washington State, Steward promptly found a position at Loyola, a Catholic university in Chicago. Before hiring him, Loyola’s dean read Steward’s book and apparently had no objections. An AAUP member <a href="https://searcharchives.library.gwu.edu/repositories/2/archival_objects/374014">noted the irony</a>: “Apparently our Catholic brethren are much more tolerant than a state institution in Washington.”</p>
<figure class="align-right ">
<img alt="Shirtless tattooed man smoking a cigarette." src="https://images.theconversation.com/files/511498/original/file-20230221-3821-5leisr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/511498/original/file-20230221-3821-5leisr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=961&fit=crop&dpr=1 600w, https://images.theconversation.com/files/511498/original/file-20230221-3821-5leisr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=961&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/511498/original/file-20230221-3821-5leisr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=961&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/511498/original/file-20230221-3821-5leisr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1207&fit=crop&dpr=1 754w, https://images.theconversation.com/files/511498/original/file-20230221-3821-5leisr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1207&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/511498/original/file-20230221-3821-5leisr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1207&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Samuel Steward worked as a tattoo artist under the alias Phil Sparrow.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/en/d/d6/Samuel_Morris_Steward_1957.jpg">Wikimedia</a></span>
</figcaption>
</figure>
<p>Outside of teaching, Steward, who was gay, published gay erotica under the pseudonym Phil Andros and took up tattooing. By 1956, Steward permanently left academia to ply his trade as a tattoo artist full time on Chicago’s South State Street under another alias, Philip Sparrow.</p>
<p>In the 1960s, he moved to California and opened up a tattoo parlor in Oakland, where he became the <a href="https://www.google.com/books/edition/Secret_Historian/cl9kgQmqj54C?hl=en&gbpv=1&bsq=%22official%22%20%22hells%20angels%22">“official” tattoo artist</a> for the Hells Angels motorcycle club.</p>
<p>After retiring from tattooing, Steward lived a quiet life in Berkeley. He still wrote frequently, producing a handful of <a href="https://worldcat.org/search?q=au%3D%22Steward%2C+Samuel+M.%22&itemSubType=book-printbook&orderBy=publicationDateDesc&itemSubTypeModified=book-printbook&datePublished=1950-1993">fiction and nonfiction books</a>. Steward <a href="https://www.nytimes.com/1994/01/20/obituaries/samuel-steward-84-a-writer-about-stein.html">died in California in 1993</a> at the age of 84.</p>
<p>Despite his prolific and varied career, Steward’s legacy as a “<a href="https://www.google.com/books/edition/Gay_American_Autobiography/6Frgs5iRL4YC?hl=en&gbpv=1&bsq=%22remarkable%20figure%22">remarkable figure in gay literary history</a>” was not widely known until the publication of Justin Spring’s meticulously researched 2010 book, “<a href="https://www.google.com/books/edition/Secret_Historian/cl9kgQmqj54C?hl=en&gbpv=0">Secret Historian</a>.”</p>
<p>Interest in Steward continues. Performance artist John Kelly recently staged a show, “<a href="https://www.nytimes.com/2022/12/01/theater/john-kelly-underneath-the-skin.html">Underneath the Skin</a>,” in December 2022 that examined Steward’s life.</p>
<p>It is impossible, of course, to know the trajectory of Samuel Steward’s career if he had been reappointed to Washington State for another year. But a prescient comment Steward made just before his dismissal suggests that he sensed he couldn’t stay in academia forever: “I am afraid I will have to get out of the teaching profession in order to be able to write the way I want to.”</p>
<p>Academic freedom is <a href="https://www.aaup.org/our-work/protecting-academic-freedom/academic-freedom-and-first-amendment-2007">related to free speech</a>. A <a href="https://www.google.com/books/edition/For_the_Common_Good/y6ozEAAAQBAJ?hl=en&gbpv=0">long-standing tradition</a> afforded to college faculty, it shields professors from retribution – from both internal and external sources – for teaching controversial topics within their area of expertise. <a href="https://www.aaup.org/report/1940-statement-principles-academic-freedom-and-tenure">According to the AAUP</a>, academic freedom is based on the premise that higher education promotes “the common good (which) depends upon the free search for truth and its free exposition.” </p>
<p>This protection covers both classroom lectures and publications.</p>
<p>With debates about academic freedom lately making headlines – from <a href="https://www.thenation.com/article/society/hrw-harvard-israel-kennedy-school/">outside interests influencing appointments</a>, to <a href="https://www.theatlantic.com/newsletters/archive/2023/01/hamline-university-adjunct-professor-freedom/672713/">administrators kowtowing to vocal students</a>, to <a href="https://www.insidehighered.com/news/2023/01/11/desantis-seeks-overhaul-small-liberal-arts-college">politicians changing oversight of public universities</a> – Steward’s plight some 87 years ago is a reminder that this freedom requires constant defense.</p><img src="https://counter.theconversation.com/content/198484/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alessandro Meregaglia does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ability of professors to freely teach and write about controversial topics without fear of retribution is nothing new.Alessandro Meregaglia, Associate Professor and Archivist, Boise State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1996172023-02-14T14:06:41Z2023-02-14T14:06:41ZFreedom of speech: Scotland could derail Europe’s drive to stop rich people silencing journalists<p>Investigative journalist Daphne Caruana Galizia was <a href="https://www.npr.org/2022/10/16/1129389308/malta-daphne-caruana-galizia-journalist-killed-anniversary">murdered by a car bomb</a> on October 16 2017, near her home in northern Malta. For years she had been reporting on a web of corruption and money laundering on the Mediterranean islands, involving places as far away as Shanghai, London, Baku and Dubai. </p>
<p>One of the many things brought under the spotlight by Caruana Galizia’s assassination was the way that she and other journalists had been endlessly threatened with costly transnational lawsuits by the people they were covering. While she had <a href="https://www.daphne.foundation/en/justice/vexatious-libel-cases">continued reporting</a> on her blog, many of her peers were either heavily redacting their stories or simply didn’t run them. </p>
<p>When the rich and powerful use frivolous or unfounded claims to thwart those daring to expose corruption, it is known as strategic litigation against public participation (Slapp). They often do this using libel law, though <a href="https://media.business-humanrights.org/media/documents/2021_SLAPPs_Briefing_EN_v657.pdf">sometimes also</a> deploy <a href="https://anti-slapp.org/slapp-blog/2009/1/1/new-york-blogger-sued-for-protected-speech">other legal areas</a> including negligence, trespass and trademark infringement. Slapp includes both legal threats and actions, as well as generally using legal procedures to suppress activities in which there is a public interest.</p>
<p>Caruana Galizia’s murder has prompted numerous efforts across Europe to prevent these practices. In April 2022 the European Commission proposed an <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0177">anti-Slapp directive</a> in which unfounded proceedings would be dismissed early and quickly by EU courts. The UK government <a href="https://www.gov.uk/government/consultations/strategic-lawsuits-against-public-participation-slapps/outcome/strategic-lawsuits-against-public-participation-slapps-government-response-to-call-for-evidence">began a consultation</a> on similar legislation a couple of months later for England and Wales, while their regulatory body for solicitors <a href="https://www.sra.org.uk/solicitors/guidance/slapps-warning-notice/">cautioned members</a> against representing such actions. </p>
<p>Yet one legal system on the edge of western Europe is resisting getting onboard – Scotland. In an era of online journalism where publications are viewed across the globe, it’s usually possible to establish a connection between a claim and multiple countries. As a result, Scotland risks becoming an unlikely global haven for this kind of legal abuse. So what’s going on?</p>
<h2>How the law is used to silence commentators</h2>
<p>In 2018 the London-based investigative journalist Oliver Bullough published Moneyland, an acclaimed book lifting the lid on how government officials and business leaders steal public money and launder it in other countries. A few months later, Bullough and his publishers received a legal letter on behalf of the Angolan vice president Bornito de Sousa Baltazar Diogo, <a href="https://anti-slappconference.info/wp-content/uploads/2022/11/website-anti-slapp-conference-booklet.pdf">demanding that</a> Moneyland be withdrawn, since in a section about that country it talked about how his daughter Naulila Diogo had spent US$200,000 (£165,000) on bridal attire that she wore in a US reality show. </p>
<p>The book was not withdrawn, and then Bullough got word in 2021 that he was being sued in Portugal for €525,000 (£464,000) in relation to the claims. He had never been to Portugal, but the book had been published there so there was a basis for a claim. Of course, it’s impossible to comment on whether a particular claim is vexatious, but in this case the campaigning group, Index on Censorship, <a href="https://www.indexoncensorship.org/2021/09/index-on-censorship-condemns-lawsuit-against-journalist-and-author-oliver-bullough/">expressed “extreme concern”</a> and filed a media freedom alert with the Council of Europe. </p>
<p>It’s worth pointing out that <a href="https://anti-slappconference.info/wp-content/uploads/2022/11/website-anti-slapp-conference-booklet.pdf">the law firm</a> originally engaged by the Angolan vice president, Bannatyne Kirkwood France & Co, is based in Scotland. If it becomes harder to pursue an action in the EU in future, Scotland could become a useful alternative. </p>
<p>Another case that arguably falls into this category relates to the former Green member of the Scottish parliament Andy Wightman. He was <a href="https://www.theguardian.com/uk-news/2020/mar/11/scottish-green-msp-wins-defamation-case">sued for £750,000</a> after writing numerous blogs and social media posts criticising Paul O’Donoghue, director of a wildcat conservation fund, Wildcat Haven. Wildcat Haven had been selling tiny souvenir plots of land on the pretext that the buyer could call themselves Lord or Lady Wildernesse. In reality, Wightman argued, these titles were legally meaningless. </p>
<p>Wightman had to crowdsource £150,000 to defend the case, which argued that his comments were defamatory and had damaged O'Donoghue’s business. Ultimately the former MSP won after the judge decided that the claims were either not defamatory or could be defended as fair comment. The <a href="http://www.andywightman.com/docs/A111-17%20Opinion.pdf">court noted</a> the lack of evidence produced to substantiate the sum of damages sought, which raises a red flag as to the legitimacy of the action. </p>
<h2>The Scottish dimension</h2>
<p>Behind these high-profile cases lurk many more stories that go unpublished due to the mere threat of legal action. Campaigners are pushing for new rules that would move Scotland in a similar direction to the EU, England and Wales. In September, former Scottish National Party MP Roger Mullin <a href="https://www.parliament.scot/get-involved/petitions/view-petitions/pe1975-reform-the-law-relating-to-strategic-lawsuits-against-public-participation-slapps">filed a petition</a> to the Scottish parliament urging the Scottish government to introduce such legislation. </p>
<p>The Scottish government <a href="https://www.parliament.scot/-/media/files/committees/citizen-participation-and-public-petitions-committee/correspondence/2022/pe1975/pe1975_a.pdf">responded that</a> reforms are unnecessary. It argues that the recent Defamation and Malicious Publication (Scotland) Act 2021 rebalances Scots defamation law in favour of freedom of expression by introducing a serious harm test, as opposed to the old test of whether a statement lowered a person in the estimation of right-thinking members of society. There is also a new defence where the publisher can show they reasonably believed their statements were in the public interest. </p>
<p>Similar reforms were enacted in England and Wales in 2013 but proved <a href="https://fpc.org.uk/the-increasing-rise-and-impact-of-slapps-strategic-lawsuits-against-public-participation/">insufficient to deter</a> vexatious actions. The <a href="https://www.gov.uk/government/consultations/strategic-lawsuits-against-public-participation-slapps/outcome/strategic-lawsuits-against-public-participation-slapps-government-response-to-call-for-evidence#defamation-libel-laws">UK government</a> concluded that protections at the stage of a standard hearing are too late, not to mention that libel is only one route to silence activists. </p>
<p>Mullin’s petition is now being investigated by the <a href="https://www.thenational.scot/news/23259845.slapps-cross-party-msps-pressure-scottish-government-act/">Scottish public petition committee</a>. The committee is seeking further evidence from the Scottish government on the sufficiency of the 2021 Act, and has invited the National Union of Journalists, the Law Society of Scotland and Law Commission to give evidence. Campaigners will be watching closely for the committee’s recommendations. </p>
<p>At minimum, the Scottish government needs to introduce rules providing for early dismissal of unfounded abusive proceedings through an accelerated procedure. It needs to place the burden of proof on the claimant to prove a claim is not unfounded or abusive, and provide for remedies and penalties against abusive court proceedings. Equally, the Law Society of Scotland should issue guidance like that produced by its equivalent in England and Wales to help deter Scottish firms from aiding such actions. </p>
<p>If the Scottish government does not take this issue seriously, it risks becoming the last stronghold for strategic litigation against public participation in Europe. A gap in Europe’s armour against these kinds of claims presents a threat to free speech everywhere. It will be strange and disappointing if that turns out to be Scotland.</p><img src="https://counter.theconversation.com/content/199617/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Francesca Farrington has consulted to the Coalition Against SLAPPs in Europe (CASE) and the UK Anti-SLAPP Coalition..</span></em></p><p class="fine-print"><em><span>Justin Borg-Barthet has consulted to the European Commission, the European Parliament, the Coalition Against SLAPPs in Europe (CASE), and the UK Anti-SLAPP Coalition.</span></em></p>A Scottish parliamentary committee is investigating whether the nation’s laws to protect journalistic freedoms need to be tightened.Francesca Farrington, Lecturer in Commercial Law, University of AberdeenJustin Borg-Barthet, Professor of Private International Law and EU law, University of AberdeenLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1976042023-02-08T13:42:04Z2023-02-08T13:42:04ZWhat the First Amendment really says – 4 basic principles of free speech in the US<figure><img src="https://images.theconversation.com/files/507966/original/file-20230202-5680-ll0ht.jpg?ixlib=rb-1.1.0&rect=298%2C381%2C2619%2C1641&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protection that is, at least in this Philadelphia park, carved in stone.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:First_Amendment_to_the_U.S._Constitution.jpg">Zakarie Faibis via Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>Elon Musk has claimed he believes in free speech no matter what. He calls it a <a href="https://twitter.com/elonmusk/status/1597405399040217088">bulwark against tyranny in America</a> and promises to reconstruct Twitter, which he now owns, so that its policy on free expression “<a href="https://twitter.com/elonmusk/status/1519036983137509376">matches the law</a>.” Yet his grasp of the First Amendment – the law that governs free speech in the U.S. – appears to be quite limited. And he’s not alone.</p>
<p>I am a lawyer and a professor who has taught constitutional concepts to undergraduate students for over 15 years and has written a book for the uninitiated about the <a href="https://press.uchicago.edu/ucp/books/book/distributed/W/bo156864042.html">freedom of speech</a>; it strikes me that not many people educated in American schools, whether public or private – including lawyers, teachers, talking heads and school board members – appear to have a working knowledge about the right to free speech embedded in the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment of the U.S. Constitution</a>. </p>
<p>But that doesn’t have to be the case.</p>
<p>In short, the First Amendment enshrines the freedom to speak one’s mind. It’s not written in code and does not require an advanced degree to understand. It simply states: “Congress shall make no law … abridging the freedom of speech.” The liberties embraced by that phrase belong to all of us who live in the United States, and we can all become knowledgeable about their breadth and limitations.</p>
<p>There are just four essential principles.</p>
<h2>1. It’s only about the government</h2>
<p>The Bill of Rights – the other name for the first 10 amendments to the U.S. Constitution – like the Constitution itself and all the other amendments, sets limits only on the relationship between the U.S. government and its people.</p>
<p>It does not apply to interactions in other nations, nor interactions between people in the U.S. or companies. If the government is not involved, the First Amendment does not apply.</p>
<p>The First Amendment ensures that Twitter is, in fact, free of government restrictions against <a href="https://www.nytimes.com/2022/11/20/opinion/donald-trump-twitter-return.html">spreading misinformation and disinformation</a> or virtually anything else. The company is similarly free to <a href="https://www.theguardian.com/technology/2022/dec/17/elon-musk-reinstates-twitter-accounts-of-suspended-journalists">expel any users</a> who offend Musk’s personal sensibilities. They can be <a href="https://www.theguardian.com/technology/2022/dec/17/elon-musk-reinstates-twitter-accounts-of-suspended-journalists">booted off Twitter</a> and any charges of “Censorship!” don’t apply.</p>
<h2>2. For decades, speech has faced very few limits</h2>
<p>Freedom of expression was understood by the nation’s founders to be a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3016815">natural, unalienable right</a> that belongs to every human being. </p>
<p>Over the course of the first 120-plus years of the country’s democratic experiment, judicial interpretation of that right slowly evolved from a limited to an expansive view. In the middle of the 20th century, the Supreme Court ultimately concluded that because the right to speak freely is so fundamental, it is subject to restriction <a href="https://supreme.justia.com/cases/federal/us/395/444/">only in limited circumstances</a>. </p>
<p>It is now an accepted doctrine that tolerance for discord is built into the very fabric of the First Amendment. In the words of one of the most revered Supreme Court justices, Louis D. Brandeis, “<a href="https://supreme.justia.com/cases/federal/us/274/357/#tab-opinion-1931857">it is hazardous to discourage thought, hope and imagination</a>; … fear breeds repression; … repression breeds hate; … hate menaces stable government.” </p>
<p>Opinions, viewpoints and beliefs – which are sometimes based on provable fact, other times on hypothetical theories and occasionally on lies and conspiracies – all contribute to what constitutional scholars and lawyers refer to as the “<a href="https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas">marketplace of ideas</a>.” Similar to the commercial marketplace, the marketplace of ideas subjects all products to competition. The hope is that only the best will survive.</p>
<p>Therefore, members of the <a href="https://www.oyez.org/cases/2010/09-751">Westboro Baptist Church can picket the funerals of fallen soldiers</a> with signs disparaging the LGBTQ+ community, <a href="https://supreme.justia.com/cases/federal/us/432/43/#tab-opinion-1952312">Nazi hate groups</a> can hold rallies and <a href="https://supreme.justia.com/cases/federal/us/373/262/">civil rights groups can participate in lunch-counter protests</a>. The ideas expressed by each of these groups represent one perspective in the public debate about rights and privileges, government responsibility and religion. Other people and groups may disagree, but their perspectives are also protected from government censorship and repression.</p>
<p>Messages communicated by means other than speech or writing are generally protected by the First Amendment, too. A jean jacket bearing the Vietnam-era anti-war slogan “<a href="https://www.oyez.org/cases/1970/299">F*ck the Draft</a>” is protected, as is the act of <a href="https://supreme.justia.com/cases/federal/us/491/397/">burning a United States flag</a> in front of a crowd. These were potentially more emotionally powerful than politely worded statements opposing government policies.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people stand nearby while a U.S. flag burns." src="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">It may be upsetting to see – but that’s part of the point of burning a flag, and a key reason it’s protected by the First Amendment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-communist-party-usa-and-other-anti-fascist-news-photo/1230698352">Michael Ciaglo/Getty Images</a></span>
</figcaption>
</figure>
<h2>3. But not all speech is protected</h2>
<p>The government does, in fact, have the power to regulate some speech. When the rights and liberties of others are in serious jeopardy, speakers who <a href="https://www.oyez.org/cases/1940-1955/315us568">provoke others into violence</a>, <a href="https://www.oyez.org/cases/1963/39">wrongfully and recklessly injure reputations</a> or <a href="https://www.oyez.org/cases/1968/492">incite others to engage in illegal activity</a> may be silenced or punished. </p>
<p>People whose words cause actual harm to others can be held liable for that damage. Right-wing commentator Alex Jones found that out when courts ordered him to pay <a href="https://www.texastribune.org/2022/11/23/alex-jones-texas-lawsuit-damages/">more than US$1 billion in damages</a> for his statements about, and treatment of, parents of children who were killed in the 2012 Sandy Hook Elementary School shooting in Newtown, Connecticut. </p>
<p>So, abortion opponents can say what they wish but <a href="https://www.mtsu.edu/first-amendment/article/706/planned-parenthood-of-the-columbia-willamette-inc-v-american-coalition-of-life-activists-9th-cir">can’t threaten or terrorize abortion providers</a>. And the white supremacists who rallied in Charlottesville, Virginia, in 2017 can shout to the rafters that Jews will not replace them, but they can be <a href="https://www.washingtonpost.com/dc-md-va/2023/01/03/charlottesville-unite-the-right-damages/">held liable for the intimidation, harassment and violence</a> they used to amplify their words. </p>
<p>Rules about incitement to illegal action are part of the <a href="https://www.pbs.org/newshour/show/justice-department-examines-trumps-conduct-in-jan-6-probe">U.S. Department of Justice’s investigation</a> into whether former President Donald Trump is at all responsible for the violence at the Capitol on Jan. 6, 2021. On that day, <a href="https://www.factcheck.org/2021/01/trumps-falsehood-filled-save-america-rally/">citing unproven, even disproved, events</a>, Trump <a href="https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial">delivered a speech</a> insisting the 2020 presidential election was rife with fraud. </p>
<p>However, <a href="https://www.law.cornell.edu/supremecourt/text/11-210">the First Amendment doesn’t protect only true statements</a>. Trump has a constitutional right to advocate for his perspective. Even his references to violence might be considered shielded from criminal prosecution by the superpower of the First Amendment. That superpower would evaporate only if a court finds that, when he spoke the words that day, “And if you don’t fight like hell, you’re not going to have a country anymore,” his intent was to <a href="https://www.washingtonpost.com/opinions/2022/12/19/jan-6-committee-report-trump-referrals/">incite the violence that followed</a>.</p>
<h2>4. What’s legal isn’t always morally correct</h2>
<p>Finally, and perhaps most importantly: Moral boundaries to acceptable speech are different, and often much narrower, than constitutional boundaries. They should not be conflated or confused.</p>
<p>The First Amendment right to speak freely as an exercise of people’s natural rights does not mean everything anyone says anywhere is morally acceptable. Constitutionally speaking, ignorant, demeaning and vitriolic speech – including hate speech – are all protected from government repression, even though they may be morally offensive to the majority.</p>
<p>Still, some people insist that malicious and emotionally hurtful speech <a href="https://www.theatlantic.com/education/archive/2017/07/why-its-a-bad-idea-to-tell-students-words-are-violence/533970/">adds no value to society</a>. That is one reason used by people who seek to <a href="https://www.theatlantic.com/education/archive/2017/07/why-its-a-bad-idea-to-tell-students-words-are-violence/533970/">cancel or ban controversial speakers from college campuses</a>. </p>
<p>Indeed, virulent speech may even <a href="https://www.nytimes.com/2022/03/18/opinion/cancel-culture-free-speech-poll.html">weaken the democratic exchange of ideas</a>, by discouraging some people from participating in public discussion and debate, to avoid potential harassment and scorn. </p>
<p>Nonetheless, that sort of speech remains firmly under the umbrella of First Amendment defenses. Each person must decide how their own humanity and morality allows them to speak for themselves.</p><img src="https://counter.theconversation.com/content/197604/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lynn Greenky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>‘Congress shall make no law … abridging the freedom of speech.’ It’s often misunderstood, by many Americans. A constitutional scholar explains what it really boils down to.Lynn Greenky, Associate Professor of Communication and Rhetorical Studies, Syracuse UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1986962023-01-30T15:55:17Z2023-01-30T15:55:17ZA ‘stop Brexit’ sticker and suffragette colours: it’s really not clear what can get you kicked out of parliament<figure><img src="https://images.theconversation.com/files/506908/original/file-20230127-25-uw9fyt.png?ixlib=rb-1.1.0&rect=0%2C6%2C2094%2C1504&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock/John Gomez</span></span></figcaption></figure><p>Around 1 million visitors enter the UK parliamentary estate in Westminster every year. They go through airport-style security, and hand over any <a href="https://www.parliament.uk/visiting/access/security/">“restricted items”</a> before they enter. Many of these “restricted items” are fairly obvious, like climbing gear and Swiss army knives. It’s fairly easy to understand why they’re not allowed on parliamentary premises.</p>
<p>Some “restricted items” are much more ambiguous, though, as one woman found out recently. <a href="https://www.theguardian.com/uk-news/2023/jan/26/visitor-to-uk-parliament-made-to-cover-stop-brexit-sticker-on-laptop">Anna Betz</a> says she was asked by parliamentary security to remove a “stop Brexit” sticker from her laptop as she entered the estate. </p>
<p>The list of restricted items does include “political or offensive slogan materials including clothing”. In many cases, establishing whether a particular item is offensive – or political – is a judgment call. The security guards were allegedly concerned that Betz might use her laptop to protest, holding it in the air to create a makeshift placard (another restricted item in parliament). </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1618691786159067136"}"></div></p>
<p>Clearly, there are legitimate concerns about protests inside Westminster (not just outside it). Parliament is a symbolic, ceremonial space. It is also a workplace where essential parliamentary business such as debate, legislation, oversight and scrutiny is carried out. The people responsible for this business - MPs, peers and staff – must be able to access the building freely without hindrance or intimidation.</p>
<p>Parliament has released a <a href="https://www.parliament.uk/contentassets/0eeb39dec91f46d2b3ca2c22a9110e8c/prohibited-items-poster-hop.pdf">poster</a> listing restricted items, but “offensive” and “political” items are absent. That might be because parliament doesn’t want to provide pictures of them or because there’s no easy way to categorise them. In any case, there is an important question here: what makes material “political”?</p>
<p>I contemplated “political materials” in a <a href="https://theconversation.com/the-pandemic-has-changed-parliament-will-it-be-forever-149215">2020 article</a> about COVID-era changes at Westminster. Earlier that year, the House of Commons Speaker rebuked Labour MP Justin Madders for having a <a href="https://www.express.co.uk/news/uk/1278521/Speaker-Lindsay-Hoyle-Labour-Party-Justin-Madders-PMQs-Boris-Johnson-latest">vintage Labour poster</a> in the background when he joined PMQs via Zoom. The poster was called out as a “political slogan”. More recently, a group of women were <a href="https://twitter.com/russellfindlay1/status/1592480700271583232?lang=en-GB">asked to leave a committee room</a> in the Scottish parliament for wearing Suffragette colours.</p>
<p>The Scottish parliament has since offered an <a href="https://www.lbc.co.uk/news/scottish-parliament-says-sorry-for-throwing-out-women-wearing-suffragette-colour/">apology</a> to the women who were told to leave. So far, the UK parliament has not offered an apology to Betz. </p>
<p>This difference in outcome is intriguing. Both of these cases have certain similarities, so we would expect a similar response. For example, they both refer to political campaigns that have nominally concluded, but retain a contemporary resonance. </p>
<p>There appears to be substantial inconsistency, then, not only between these institutions, but within them. Reflecting on the guard who made her cover her laptop sticker at Westminster, Betz said she doubted that “he understood why he was doing it”. </p>
<p>One of the women asked to leave the Scottish parliament noted: “The security officer said it was his manager who had ordered our removal. I am still waiting to hear from him for an explanation.”</p>
<p>Despite the guards’ concerns that she might use her laptop as a political placard, Betz pointed out that the sticker “had been there for years” and that she was visiting Westminster “for the opening of an exhibition”. This raises an important notion: that the circumstances of a person’s visit to parliament and the relevance of the slogan (in this case, a policy that has already been enacted), can and should be considered when identifying “political” or “offensive” material.</p>
<h2>The importance of democratic access</h2>
<p>In response to these incidents, both parliaments have been keen to stress their democratic credentials. Commenting on the case of Betz, a spokesperson reiterated Westminster’s commitment to “democratic access”. Commenting on behalf of the Scottish parliament, presiding officer Alison Johnstone <a href="https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-in-parliament/meeting-of-parliament-15-11-2022?meeting=13988&iob=126728">stated</a> that “Parliament wishes people to engage with the democratic process”.</p>
<p>These statements raise more questions than they answer. Democracy is, of course, a contested concept, but many definitions of it are based on political pluralism. According to such definitions, there is no expectation, nor desire, for people to “leave their politics at the door” – quite the contrary. </p>
<p>It is paradoxical for parliaments to present themselves as democratic yet avoid political slogans and materials. After all, despite being regarded as neutral or impartial, parliaments are definitively political institutions. They are venues for political debates; they are workplaces for politicians.</p>
<p>Both the Scottish and UK parliaments have voiced a commitment to “democratic access” and public engagement with the democratic process. But how do people engage with the democratic process if not through politics? And what is politics without symbols and slogans? </p>
<p>Parliament must establish its own answers to these questions. Crucially, it must communicate these answers more effectively to its staff and to the public.</p>
<p>There is an important difference between politics and protest. As long as a political symbol or slogan does not disrupt parliamentary proceedings, it should be considered with a great deal more nuance than these incidents demonstrate. </p>
<p>Arbitrary, opaque decision making exacerbates an asymmetry of power between parliaments and the people they represent. Parliaments are already widely viewed as inaccessible, technocratic institutions that are several steps removed from public concerns and values. A lack of clarity as to what visitors can bring with them will only reinforce these perceptions.</p>
<p>Until then, there will be further incidents of people not being able to access parliaments. Seemingly arbitrary distinctions will continue to be drawn between colourful scarves, stickers, rainbow lanyards and wearing a blue tie during PMQs. If democratic institutions want the right to keep people out, they must be clear about the rules.</p><img src="https://counter.theconversation.com/content/198696/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alex Prior does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Anna Betz says she was told to pick a sticker off her laptop when visiting the palace of Westminster.Alex Prior, Lecturer in Politics, London South Bank UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956162022-11-30T13:46:03Z2022-11-30T13:46:03ZOath Keepers convictions shed light on the limits of free speech – and the threat posed by militias<figure><img src="https://images.theconversation.com/files/498108/original/file-20221129-14-xljhhz.jpeg?ixlib=rb-1.1.0&rect=0%2C7%2C5083%2C3348&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Members of the Oath Keepers stand in front of the U.S. Capitol on Jan. 6, 2021. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotOathKeepers/eaefc1fd8ab34688bc66e77ba8b0454e/photo?Query=Stewart%20Rhodes&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=258&currentItemNo=221">AP Photo/Manuel Balce Ceneta</a></span></figcaption></figure><p>The verdicts in a high-profile, monthslong trial of Oath Keepers militia members were, as one defense lawyer acknowledged, “<a href="https://apnews.com/article/oath-keepers-founder-guilty-of-seditious-conspiracy-42affe1614425c6820f7cbe8fd18ba96">a mixed bag</a>.” Leader Stewart Rhodes was found guilty on Nov. 29, 2022, of the most serious charge – seditious conspiracy – for his <a href="https://www.justice.gov/usao-dc/pr/two-leaders-oath-keepers-found-guilty-seditious-conspiracy-and-other-charges-related-us">role in the Jan. 6, 2021, insurrection at the U.S. Capitol</a>, and was acquitted on two other related charges.</p>
<p>One of Rhodes’ four co-defendants, <a href="https://www.cnn.com/2022/11/29/politics/oath-keepers-convicted-verdict-charges-january-6-seditious-conspiracy">Kelly Meggs, was also convicted of seditious conspiracy</a>. All five on trial were <a href="https://www.nytimes.com/2022/11/29/us/politics/oath-keepers-trial-verdict-jan-6.html">found guilty of obstructing an official proceeding</a>, namely Congress’ certification on Jan. 6, 2021, of the 2020 presidential election results.</p>
<p>The convictions for seditious conspiracy – a rarely used, Civil War-era charge <a href="https://www.lawfareblog.com/seditious-conspiracy-real-domestic-terrorism-statute">typically reserved in recent decades for terror plots</a> – are the most significant yet relating to the violent storming of the Capitol, and have meaning that extends beyond those who were on trial.</p>
<p>As someone who has <a href="https://www.middlebury.edu/institute/people/amy-cooter">studied the U.S. domestic militia movement</a> for nearly 15 years, I believe the Oath Keepers convictions illuminate two crucial issues facing the country: the limits of the American right to free speech and the future of the militia movement.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A balding, bearded man wearing glasses and an eye patch." src="https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=687&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=687&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=687&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=864&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=864&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=864&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Oath Keepers militia leader Stewart Rhodes, convicted by a jury on Nov. 29, 2022, of seditious conspiracy for orchestrating a plan to keep former President Donald Trump in power.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotSedition/63c743cff23d4e7bb152bedf38a58849/photo?Query=Stewart%20Rhodes&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=258&currentItemNo=218">Collin County Sheriff's Office via AP</a></span>
</figcaption>
</figure>
<h2>Greater accountability</h2>
<p>Rhodes’ seditious conspiracy conviction suggests the jury believed, as one prosecutor asserted, that he “<a href="https://www.nytimes.com/2022/10/03/us/politics/jan-6-oath-keepers-trial.html">concocted a plan for an armed rebellion to shatter a bedrock of American democracy</a>.” In other words, he was convicted over what he had said and written prior to the actual Jan. 6 attack – and this is where free speech comes into play. </p>
<p><a href="https://constitution.congress.gov/constitution/amendment-1/#:%7E:text=Congress%20shall%20make%20no%20law,for%20a%20redress%20of%20grievances.">The First Amendment</a> guarantees that “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” It’s considered a sacred American right, one that sets the U.S. apart from many peer nations, <a href="https://theworld.org/stories/2015-01-13/freedomofspeech-what-means-us-britain-and-france#:%7E:text=The%20First%20Amendment%20expressly%20prohibits,certain%20types%20of%20speech%20explicitly">some of which have stricter controls and consequences for speech that may be harmful</a>. </p>
<p>Efforts to arrest and convict groups in the U.S. that have discussed violence against racial groups, politicians or others have often been <a href="https://www.mtsu.edu/first-amendment/article/189/brandenburg-v-ohio">stymied by appeals to the First Amendment</a>. </p>
<p>Far-right extremists or other hate groups can claim they are just venting or even fantasizing – both of which would be protected under the First Amendment. In the absence of any specific plan, threat <a href="https://mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action">or incitement</a>, group members may never suffer legal consequences for oral or written expressions that nonetheless create fear in those who draw these groups’ ire. </p>
<p>For this reason, seditious conspiracy charges have historically been hard to prosecute.</p>
<p>The last time this charge was attempted was against members of <a href="https://www.lawfareblog.com/last-time-justice-department-prosecuted-seditious-conspiracy-case">the Christian militia group called Hutaree in Michigan in 2009</a>, <a href="https://www.justice.gov/opa/pr/nine-members-militia-group-charged-seditious-conspiracy-and-related-charges">for allegedly planning to engage law enforcement “in armed conflict</a>.” But the judge <a href="https://casetext.com/case/united-states-v-stone-73">dismissed the sedition charges</a>, citing First Amendment protections.</p>
<p>What is interesting about the Oath Keepers case is that <a href="https://www.theguardian.com/us-news/2022/nov/29/oath-keepers-militia-founder-stewart-rhodes-seditious-conspiracy">Rhodes himself did not breach the Capitol</a> yet was convicted of seditious conspiracy. Meanwhile three of his co-defendants – Jessica Watkins, Kenneth Harrelson and Thomas Caldwell – did storm into the Capitol building, <a href="https://www.justice.gov/usao-dc/pr/two-leaders-oath-keepers-found-guilty-seditious-conspiracy-and-other-charges-related-us">but were not convicted of that charge</a>. </p>
<p>This suggests that the jury believed that Rhodes’ texts and other communications incited others to violent, undemocratic action in a way that requires accountability. </p>
<h2>‘Slower-brewing social harms’</h2>
<p>Rhodes’ conviction follows three other prosecutions that reflect an evolving understanding of the limits of free speech. <a href="https://www.nytimes.com/2022/11/10/us/politics/alex-jones-sandy-hook-damages.html">Conspiracy-purveyor Alex Jones was ordered to pay almost US$1.5 billion</a> to families of children killed in the Sandy Hook school shooting in three defamation cases arising from Jones’ lies about the children’s deaths, the shooting itself, and the parents.</p>
<p>Jones claims the prosecutions <a href="https://www.nytimes.com/2022/09/22/us/politics/alex-jones-free-speech.html">violated his rights to free speech</a>.</p>
<p>Neither <a href="https://crsreports.congress.gov/product/pdf/IF/IF12180">defaming someone</a> <a href="https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action">nor inciting immediate lawless action</a> are protected under the First Amendment – but <a href="https://www.mtsu.edu/first-amendment/post/1251/why-incitement-is-hard-to-prove-and-why-that-s-a-good-thing">these cases have often been</a> <a href="https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2220&context=wmlr">hard to prove</a>. The Oath Keepers and Alex Jones verdicts may herald a new and greater understanding of the slower-brewing social harms that can arise if people are allowed to spread misinformation without consequences. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with an eyepatch shown on a large screen behind a group of people seated at a long desk in a public hall." src="https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A video showing Stewart Rhodes during an interview with the January 6 Committee is shown at that committee’s public hearing June 9, 2022, on Capitol Hill in Washington.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotOathKeepersFounder/eee7cea6a7ab48bcab876cbe3ef795c3/photo?Query=Stewart%20Rhodes&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=258&currentItemNo=206">AP Photo/Andrew Harnik</a></span>
</figcaption>
</figure>
<h2>Take them seriously</h2>
<p>The convictions of Rhodes and other Oath Keepers may also lead law enforcement agencies to similarly shift their understanding of militia groups. </p>
<p>In the past, such agencies, from the local to federal levels, have <a href="https://www.theguardian.com/commentisfree/2019/aug/15/far-right-violence-fbi-terrorism-hate-crime">tended to disregard potential threats from militia groups</a>. Some <a href="https://slate.com/news-and-politics/2021/01/constitutional-sheriffs-white-supremacists-capitol-riot-insurrection.html">sheriffs in particular have even openly allied with militia groups</a> for <a href="https://www.adl.org/resources/backgrounders/oath-keepers">search and rescue efforts or used them for event “security</a>.” </p>
<p>Both the seriousness of the charges against Rhodes and his defendants as well as the widely shared videos of physical assaults that took place on Capitol police officers during the insurrection may help change attitudes in at least some agencies. </p>
<p>The Oath Keepers convictions come just three months <a href="https://www.reuters.com/legal/michigan-jury-finds-three-men-guilty-plot-kidnap-governor-2022-10-26/">after convictions of several members of the Wolverine Watchmen</a>, <a href="https://www.michigan.gov/ag/news/press-releases/2022/10/26/members-of-wolverine-watchmen-convicted-on-all-charges">the militia whose members plotted to kidnap Michigan Gov. Gretchen Whitmer and put her on trial for treason</a>. Together, the verdicts may, at the very least, solidify the impression that militia members have the potential for violent and organized actions against elected officials. </p>
<h2>Militias still relevant force</h2>
<p>An unknown in all this is how militias may respond to the implications of the Oath Keepers verdicts. </p>
<p>It is unlikely that there will be one single reaction within the militia movement. </p>
<p>Rhodes has long been a controversial figure within the movement, with some militia leaders I have interviewed supporting his efforts and others strongly disliking him. Some told me a decade ago that they distrusted both his general abilities, citing <a href="https://www.nytimes.com/2022/11/21/us/stewart-rhodes-oath-keepers-yale-law.html">his self-inflicted gunshot wound</a>, and his motives for <a href="https://apnews.com/article/oath-keepers-founder-jan-6-trial-4372b311695c401255c6881111ff4f41">pushing the Oath Keepers to be a national organization</a>. Militia members who have always disliked Rhodes had little sympathy for him as the trial developed. </p>
<p>Those in the militia movement who continue to believe the 2020 election was stolen, however, may well view Rhodes as a martyr for a bigger cause. For them, Rhodes’ conviction and whatever prison sentence he receives could very well become one of several reference points about the purported unfairness or illegitimacy of the system. It could even serve as a rallying point for militias and their sympathizers who believe the soul of their nation is at stake and will want to fight for their desired outcome in the next election. </p>
<p>The U.S. is unlikely to see another Capitol incursion. But the militia movement – in which Rhodes was a leader – and other groups who share many of its ideological principles will almost certainly continue to be a relevant political force as the country heads into the 2024 presidential election cycle.</p><img src="https://counter.theconversation.com/content/195616/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Cooter is a past recipient of the National Science Foundation Graduate Research Fellowship</span></em></p>The historic conviction of Oath Keepers founder Stewart Rhodes and one other co-defendant for seditious conspiracy has implications for free speech and the future of the militia movement in the US.Amy Cooter, Senior Research Fellow, MiddleburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1944072022-11-13T05:32:26Z2022-11-13T05:32:26ZCOP27 shines light on civil liberties in Egypt, but it’ll take work to achieve real freedom<figure><img src="https://images.theconversation.com/files/494822/original/file-20221111-2705-ixuiuc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Activists gather in front of Tel Aviv's Embassy of Egypt to demonstrate in support of activist Alaa Abdel Fattah.</span> <span class="attribution"><span class="source">Photo by Mostafa Alkharouf/Anadolu Agency via Getty Images</span></span></figcaption></figure><p>The ability to speak freely in Egypt is currently very constrained. Individuals, groups and NGOs face significant barriers to participation in the political process. And the same holds for the exchange of opinions in the everyday public sphere. </p>
<p>But promising signs have emerged during the COP27 international climate change talks in the country. <a href="https://egyptianstreets.com/2022/11/09/human-rights-watch-and-mada-masr-websites-unblocked-in-egypt/?fbclid=IwAR1-1krMRWyRNs2KK7JHSl2qU_UfC8mIIoMQwDkhkWvVIIVew2ZCLTKnuqM">Egyptian Streets</a>, a grassroots online media outlet, has reported that the independent newspaper <a href="https://www.facebook.com/mada.masr/">Mada Masr</a> has been de-censored, along with <a href="https://medium.com/">Medium</a> and <a href="https://www.hrw.org/">Human Rights Watch</a>, for the first time in five years. </p>
<p>Other outlets, however, such as <a href="https://www.aljazeera.com/">Al Jazeera</a> and <a href="https://www.huffpost.com/">Huffington Post</a>, remain censored and unavailable online.</p>
<p>Back <a href="https://www.nytimes.com/2018/12/08/opinion/sunday/egypt-censorship-crowdsourcing.html">in 2018</a>, journalist Yasmine El Rashidi called attention to the “novel” degree of censorship of political and social speech in Egypt. She labelled this a “moment of crisis” and alleged that the divided, antagonistic state of civil society in Egypt was part of the problem. </p>
<p>From <a href="https://www.madamasr.com/en/2016/02/20/news/culture/appeals-court-sentences-novelist-ahmed-naji-to-2-years-prison/">graphic novels</a> to <a href="https://egyptindependent.com/update-lebanese-tourist-who-insulted-egypt-is-released-from-arrest-deported/">Facebook</a> rants and now <a href="http://english.ahram.org.eg/NewsContentP/1/375471/Egypt/-Egyptian-influencers-sentenced-to--years-in-priso.aspx">TikTok</a> dance videos, social speech and expression have been subject to significant governmental intervention. Young people have been imprisoned for multi-year terms for holding up <a href="https://www.washingtonpost.com/politics/american-student-released-after-486-days-in-egyptian-prison/2020/07/06/e68c60f4-bfdb-11ea-8908-68a2b9eae9e0_story.html">signs</a>, making <a href="https://egyptianstreets.com/2018/11/02/the-sherine-incident-a-tale-of-two-niles/">jokes</a>, producing <a href="https://egyptianstreets.com/2018/11/02/the-sherine-incident-a-tale-of-two-niles/">satirical songs</a>, eating <a href="https://www.theguardian.com/world/2017/dec/12/egyptian-pop-singer-sent-to-prison-for-video-that-incited-debauchery?CMP=gu_com">fruit</a> suggestively, or laying down <a href="https://theconversation.com/why-some-governments-fear-even-teens-on-tiktok-140389">dance moves</a>. Professors have <a href="https://www.egyptindependent.com/egypt-court-dismisses-university-professor-over-posting-videos-of-her-dancing/">lost their jobs</a> for posting dance videos to their personal social media.</p>
<p>So do the decisions taken during <a href="https://cop27.eg/#/">COP27</a> in Egypt suggest a change of heart? That the government is considering relinquishing the control of everyday space? And that it’s decided to fulfil its post-revolutionary republican promise?</p>
<p>The jury is still out, but much depends on swift correction of deficits in the judicial system, coupled with a broader and permanent opening of Egyptian society.</p>
<h2>Deep, internal tension</h2>
<p>The problem for the country is that the degree and scope of governmental intervention is countenanced by many stakeholders, for a variety of conflicting reasons. Feminists and hijabi women, human rights groups and progressives, parents and their children, do not necessarily agree on what it is permissible to regulate, or why.</p>
<p>Here are some examples that illustrate this. Electro-folk festival music (mahraganat), deemed a corruption of republican values, has been <a href="https://english.alarabiya.net/life-style/entertainment/2022/10/17/Egypt-temporarily-bans-hugely-popular-mahraganat-singers">banned from public performance</a>. Female entrepreneurship and social media influence have been discouraged as a breach of <a href="https://theconversation.com/why-some-governments-fear-even-teens-on-tiktok-140389">family values</a>, <a href="https://www.hrw.org/news/2020/08/17/egypt-spate-morality-prosecutions-women">normalising gendered guardianship</a> over female chastity and morality. Feminists will invite the public prosecutor to punish harassment, but also protest when female dress is surveilled and punished.</p>
<p>As a result, youth speech, political activism about rights, and Islamist expression have all been subject to shifting prosecutions. </p>
<p>Arguably, civil society is the ultimate loser, subdued by a powerful state that enforces vague laws against a variety of groups and speakers almost willy-nilly. </p>
<p>Expressing their own doubts about the freedoms of Egyptians, the bipartisan Working Group on Egypt has <a href="https://pomed.org/working-group-on-egypt-letter-to-president-biden-ahead-of-cop27/">sent multiple letters</a> to US president Joe Biden and the <a href="https://carnegieendowment.org/2020/06/30/working-group-on-egypt-letter-to-secretary-pompeo-on-escalating-rights-abuses-pub-82212">Trump administration</a> over the past three years.</p>
<p>A group of Democrats penned a bicameral letter to Egyptian President Abdel Fattah El-Sisi <a href="https://www.aljazeera.com/news/2020/10/19/us-legislators-call-on-egypts-el-sisi-to-release-prisoners">on 19 October 2020</a>. More recently, a group of past <a href="https://twitter.com/MadaMasr/status/1587741407292391424?ref_src=twsrc%5Etfw">Nobel Prize recipients</a> have witheringly asked whether a future without rights is a future worth saving. Of particular concern is the Egyptian-British activist and thinker <a href="https://twitter.com/MadaMasr/status/1589324235134193670">Alaa Abd el-Fattah</a>, currently imprisoned and on a hunger strike.</p>
<p>The barriers to speech and debate are not just accidents or occasional governmental heavy-handedness. They indicate a deep, internal tension within and between the <a href="https://www.constituteproject.org/constitution/Egypt_2014.pdf">2014 Egyptian constitution</a>, the current regime’s stated aim to advance civil society interests, and prevailing social and political practice.</p>
<p>The 2014 republican constitution guarantees substantial and conflicting freedoms. The preamble describes Egypt as a land of popular sovereignty. But Article 2 declares that Islamic sharia is the “principal source of legislation”.</p>
<p>Article 64 characterises freedom of belief as “absolute”, and freedom of thought, speech and expression are guaranteed to all in Article 65. But the liberal letter of constitutional law is hard to put into practice. </p>
<p>Take the Danish satirical cartoons published <a href="https://www.theguardian.com/world/charlie-hebdo-attack">in 2005</a>, and republished by Charlie Hebdo, as an example. My students routinely argue for the prosecution of religious blasphemy, citing freedom of religious belief, at the expense of freedom of expression. The tension between rights is hard to work out.</p>
<p>According to the close invigilation of independent media, legal practice clashes with constitutional commitments to a free civil society. Political and sometimes even apolitical speech is criminalised as <a href="https://www.theguardian.com/global-development/2018/jul/27/fake-news-becomes-tool-of-repression-after-egypt-passes-new-law">“false news”</a> or <a href="https://www.hrw.org/world-report/2022/country-chapters/egypt">joining a terrorist organisation</a>. </p>
<p>Recently, <a href="https://mada33.appspot.com/www.madamasr.com/en/2022/11/01/news/u/security-crackdown-sees-arrest-of-hundreds-amid-calls-for-protest-on-nov-11/">about 150 people were detained</a> over possible economic protests. This heavy-handed reaction to ongoing dissent is paradoxical in a post-revolutionary republic. </p>
<p>Social media is a particularly fraught landscape, where careless or non-political speech becomes a permanent written record that can be held against speakers.</p>
<p>Civil society groups also argue that the criminal justice system fails to protect individuals in the exercise of their rights. Delays in justice, lengthy pretrial detention and rotation – detaining, eventually releasing, and then rearresting people under new charges – is the norm, not the exception. </p>
<p>So what are the signs of change, if any?</p>
<h2>Straws in the wind?</h2>
<p>Egypt recently introduced two new criminal justice initiatives amid complaints that its commitment to human rights was <a href="https://cihrs.org/egypt-national-strategy-for-human-rights-a-ruse-to-show-international-community-and-donor-states-that-political-reform-is-underway/?lang=en">more show</a> than substance. The first is a <a href="https://www.egypttoday.com/Article/1/116884/Exclusive-Egyptian-MP-Khouli-Presidential-pardon-committee-seeks-to-integrate">newly revived</a> Presidential Pardoning Committee, first formed in 2016. It extends leniency to detained or sentenced offenders who have not committed violent acts. </p>
<p>The second, <a href="https://www.madamasr.com/en/2022/07/01/feature/politics/how-power-blind-accountability-mechanisms-failed-nayera-ashraf-and-countless-other-women/">“Immediate Justice”</a>, looks to increase the swiftness of justice. But this could compress death penalty trials to a matter of days, potentially compromising the <a href="https://english.ahram.org.eg/News/17279.aspx">rule of law</a>. </p>
<p>Thousands of prisoners have been released since April, and President el-Sisi has asked for the <a href="https://www.egypttoday.com/Article/1/115496/President-Sisi-directs-pardon-committee-to-reintegrate-released-prisoners-into">social reintegration</a> of those pardoned, not just their release. These statements suggest that the end-game of current judicial reforms is transformative: to <a href="https://english.ahram.org.eg/News/465613.aspx">“close”</a> the political prisoners file, complementing the <a href="https://reliefweb.int/report/egypt/egypt-ending-state-emergency-start-insufficient">official rollback</a> of the state of emergency in October 2021. </p>
<p>Arguably, Egypt in 2022 might be described as currently at a crossroads. It is a young, massively online country. Progress is in the air. And while policy change is needed, change is also needed in a deeper and more logically consistent register. </p>
<p>The regime recently called for a <a href="https://english.ahram.org.eg/NewsContent/50/1201/467990/AlAhram-Weekly/Egypt/INTERVIEW-A-new-national-alignment.aspx">new national dialogue</a>, pointing towards a <a href="https://www.sis.gov.eg/UP/SIS%20English%20Publications/%D8%A7%D8%A8%D9%86%D8%A7%D8%A1%20%D8%A7%D9%84%D9%88%D8%B7%D9%86%20%D8%A7%D9%86%D8%AC%D9%84%D9%8A%D8%B2%D9%89%20%D9%86%D9%87%D8%A7%D8%A6%D9%89.pdf">“new republic”</a> grounded in dignity and a “comprehensive concept of human rights”. This year has been declared the <a href="https://english.ahram.org.eg/News/422813.aspx">“year of civil society”</a>. </p>
<p>How might a new civil society theory for a new republic look?</p>
<h2>What needs to happen</h2>
<p>In my <a href="https://link.springer.com/article/10.1057/s41296-018-0253-0">view</a> the desired outcome would be a liberal republic – with respect to the limits placed on speech, and with respect to the limits of governmental interference in civil society.</p>
<p>A liberal theory places quasi-absolutist rights of speech and expression at the heart of a tolerant republic, with equality under law. </p>
<p>In such a space, the ability to be wrong and to experiment with different ideas is respected. Violent contestation then can be distinguished from differences of opinion. Difference, as opposed to mere diversity, is respected.</p>
<p>In Egypt, that would mean tolerating self-expression by women, veiled and unveiled, and respecting the rights of the LGBTI community to be present in the public sphere. It also means accepting the inevitabilty of difference and dissent. </p>
<p>For liberty to work in Egypt, not just a national dialogue, but a clearer understanding of the normative politics – and power – of dialogue itself, should be the goal.</p><img src="https://counter.theconversation.com/content/194407/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Chris Barker does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many people accept the Egyptian government’s restrictions on freedoms, for a variety of conflicting reasons.Chris Barker, Assistant Professor of Political Science, American University in CairoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1875842022-09-09T12:34:56Z2022-09-09T12:34:56ZSupreme Court to revisit LGBTQ rights – this time with a wedding website designer, not a baker<figure><img src="https://images.theconversation.com/files/483333/original/file-20220907-9395-6xdmsq.jpg?ixlib=rb-1.1.0&rect=22%2C6%2C2087%2C1400&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Same-sex wedding cakes wound up at the Supreme Court – now, it's wedding websites' turn.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/close-up-of-gay-men-holding-hands-in-dark-royalty-free-image/675593111?adppopup=true">S_nke Bullerdiek/EyeEm via Getty Images</a></span></figcaption></figure><p>A simmering, difficult, and timely question returns to the Supreme Court on December 5, 2022: What happens when freedom of speech and civil rights collide?</p>
<p>The court took up similar questions four years ago in the famous “<a href="https://theconversation.com/why-the-supreme-courts-gay-wedding-cake-ruling-wont-resolve-religious-freedom-issues-97759">gay wedding cake” case</a>, <a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf">Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission</a>, about a baker who refused to provide services for a same-sex couple based on his religious beliefs. The justices ruled in his favor, but did so on narrow grounds, sidestepping the direct constitutional questions over freedom of religion and free speech.</p>
<p>Now, another case from Colorado about free speech and same-sex marriage has made its way to the court: <a href="https://www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/">303 Creative v. Elenis</a>. As <a href="https://udayton.edu/directory/education/eda/russo_charles.php">a professor of law and education</a> who pays particular attention to First Amendment issues, I see the case highlighting tension between two competing fundamental interests – interests that seem to clash routinely in 21st-century America.</p>
<p>On Aug. 30, 2022, for example, another <a href="https://www.courier-journal.com/story/news/2022/08/31/federal-court-rules-chelsey-nelson-photography-vs-louisville-fairness-ordinance/65465495007/">similar case was decided</a>, this time in Kentucky. A <a href="https://cases.justia.com/federal/district-courts/kentucky/kywdce/3:2019cv00851/114724/130/0.pdf?ts=1661949564&lctg=19997310">federal trial court</a> ruled in favor of a Louisville wedding photographer who sued over the city’s “Fairness Ordinance,” which prohibits discrimination based on sexual orientation or gender identity. She argued that the law violated her religious beliefs and right to free speech, and the court agreed, explaining that “the government may not force singers or writers or photographers to articulate messages they don’t support.” </p>
<h2>Freedom to speak – or stay silent</h2>
<p>Graphic artist Lorie Smith is the founder and owner of a studio called <a href="https://303creative.com/about/">303 Creative</a>. According to <a href="https://cases.justia.com/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.pdf?ts=1627336853">court documents</a>, Smith is generally willing to serve LGBTQ clients. However, she intends to begin designing wedding websites and is unwilling to create them for same-sex couples, saying it would go against her Christian beliefs.</p>
<p>Under <a href="https://ccrd.colorado.gov/regulatory-information">Colorado’s Anti-Discrimination Act</a>, though, it is discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”</p>
<p>In 2016, Smith <a href="https://www.denverpost.com/2016/09/21/colorado-lawsuit-says-law-promotes-same-sex-marriage/">sued the members of the state’s Civil Rights Commission and Colorado’s attorney general</a>. Smith argued that being required to prepare a same-sex wedding website would violate her <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> rights by forcing her to speak – what lawyers refer to as “compelled speech.”</p>
<p>The constitutional right to freedom of “speech” has historically been understood to cover a variety of ways people express themselves, including in writing, art and protest. But not only does it protect the right to protect one’s speech, it also safeguards <a href="https://www.mtsu.edu/first-amendment/article/933/compelled-speech">the right to not speak in the first place</a>.</p>
<p>Through her attorneys, Smith also maintained that requiring her to create a website would violate her <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> right to the free exercise of religion.</p>
<h2>Path to SCOTUS</h2>
<p>The federal trial court in Colorado <a href="https://casetext.com/case/303-creative-llc-v-elenis-1">rejected Smith’s request</a> to block the anti-discrimination law in 2019. When she appealed, <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">the circuit court</a> agreed with the previous ruling: She could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs.</p>
<p>Protecting diverse viewpoints is “a good in and of itself,” the court wrote, but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.”</p>
<p>In <a href="https://cases.justia.com/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.pdf?ts=1627336853">a lengthy dissent</a>, the chief judge highlighted Smith’s claim of compelled speech, criticizing the court for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”</p>
<p>Smith appealed to the Supreme Court, which, in February 2022, agreed to hear her claim, limited to the issue of free speech, not freedom of religion. The question <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">for the nine justices to decide</a> will be “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”</p>
<figure class="align-center ">
<img alt="A man in a black shirt and a gray apron stands amid many-tiered wedding cakes in a green room." src="https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/483336/original/file-20220907-2774-q9y5k0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Jack Phillips, whose Masterpiece Cakeshop case went to the Supreme Court, stands in his Colorado bakery.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/jack-phillips-stands-for-a-portrait-near-a-display-of-news-photo/803122450?adppopup=true">Matthew Staver/For The Washington Post via Getty Images</a></span>
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<h2>Key to the case?</h2>
<p>So, how will the justices rule? The Supreme Court may have given a clue to its initial attitude <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">when it announced it would hear the case</a>. The justices zoomed in on a legal standard called “strict scrutiny,” as they did in its earlier case on this issue, Masterpiece Cakeshop.</p>
<p>Under <a href="https://www.law.cornell.edu/wex/strict_scrutiny#:%7E:text=To%20pass%20strict%20scrutiny%2C%20the,the%20constitutionality%20of%20governmental%20discrimination.">strict scrutiny analysis</a>, the most stringent form of judicial review, government restrictions on fundamental rights must be justified by a compelling state interest in order to be upheld. In other words, the restrictions must advance government interests of the highest order, and be narrowly tailored to those goals – in this case, preventing discrimination on the basis of sexual orientation.</p>
<p>But the Supreme Court appeared skeptical that Colorado’s anti-discrimination act could survive this test, <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">writing</a>, “The Tenth Circuit applied strict scrutiny and astonishingly concluded that the government may, based on content and viewpoint, force Lorie to convey messages that violate her religious beliefs and restrict her from explaining her faith.”</p>
<p>When the Supreme Court applies strict scrutiny, it rarely upholds governmental restrictions on constitutional rights – which could suggest a win for Smith.</p>
<p>Another possible indication, again in favor of Smith, is in <a href="https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf">Janus v. American Federation of State, County, and Municipal Employees, Council 31</a>, a 2018 case from Illinois involving compelled speech. Here the Supreme Court ruled in favor of a nonunion public employee who challenged an Illinois law requiring him to pay fair share fees to the union representing his colleagues for costs associated with the bargaining process. The court agreed with the employee’s claim that because the union supported positions with which he disagreed, his having to pay the fees violated his First Amendment right as a form of compelled speech.</p>
<h2>A second chance</h2>
<p>On the other side of the controversy is the vital interest of same-sex couples and others in the LGBTQ community to live free from discrimination based on their sexual orientations. </p>
<p>In a 2019 case, <a href="https://www.law.cornell.edu/supremecourt/text/17-1618">Bostock v. Clayton County</a>, the Supreme Court interpreted <a href="https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964">Title VII of the Civil Rights Act of 1964</a>, a far-reaching employment statute, as extending protection against discrimination in the workplace to individuals who are gay and transgender. However, the Court has yet to address the clash of rights at issue in 303 Creative.</p>
<p>The key question, then, appears to be whether individuals can require artists or those who engage in expressive activities to provide their services if doing so can be viewed as a form of compelled speech, violating their right to stay silent on issues with which they disagree.</p>
<p>Thus, it remains to be seen whether 303 Creative will set a new precedent on balancing First Amendment freedoms while protecting others from discrimination. After all, it sidestepped constitutional issues <a href="https://theconversation.com/why-the-supreme-courts-gay-wedding-cake-ruling-wont-resolve-religious-freedom-issues-97759">in Masterpiece Cakeshop</a>. <a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf">The court based its decision</a> in the baker’s favor on some of the Colorado commission members’ comments about his beliefs. The majority found that those comments violated the state’s First Amendment duty to maintain religious neutrality while avoiding hostility to faith-based beliefs or viewpoints.</p>
<p>On Oct. 18, 2022 <a href="https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalDecember2022.pdf">the Supreme Court announced</a> that it will hear oral arguments in 303 Creative on Dec. 5, 2022. Though the court likely will not render a judgment until near the end of its term in June 2023, it promises to be one of the upcoming year’s highest-profile judgments. And, regardless of the outcome, 303 Creative is likely to generate even more controversy.</p>
<p><em>Article updated on Oct. 20, 2022 to include the date of oral arguments in 303 Creative v. Elenis.</em></p><img src="https://counter.theconversation.com/content/187584/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>303 Creative v. Elenis gives SCOTUS another chance to set precedent about what happens when First Amendment freedoms come at a cost to civil rights.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1890352022-09-01T20:22:37Z2022-09-01T20:22:37ZCriticisms of academic freedom miss the mark and risk the integrity of scholarship<figure><img src="https://images.theconversation.com/files/481144/original/file-20220825-22-3zaja5.jpg?ixlib=rb-1.1.0&rect=106%2C98%2C5095%2C3538&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">While academic freedom itself might sound like a unique notion, granting special tools or rights to specific professions is rather commonplace.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>In the era of today’s heated culture wars, the concepts of academic freedom and freedom of expression have become increasingly conflated. Divisive political debates around <a href="https://theconversation.com/why-you-shouldnt-be-afraid-of-critical-race-theory-podcast-183973">critical race theory</a>, <a href="https://montreal.ctvnews.ca/quebec-passes-controversial-bill-to-protect-academic-freedom-1.5932032">Québec’s Bill 32</a> and talk of establishing “<a href="https://nationalpost.com/news/politics/poilievre-promises-to-protect-freedom-of-speech-on-campus-appoint-a-free-speech-guardian">free speech guardians</a>” are just some recent examples. Academic freedom is being subsumed into the oftentimes polarizing rhetoric concerning what is commonly referred to as free speech. </p>
<p>But the two are different. Free speech is about the right to express one’s opinion, however accurate, false, good or bad it might be.</p>
<p>Academic freedom requires professional competency as determined by disciplinary communities. It is most succinctly defined by the <a href="https://www.aaup.org/NR/rdonlyres/A6520A9D-0A9A-47B3-B550-C006B5B224E7/0/1915Declaration.pdf">American Association of University Professors’ 1915 statement</a> as, “freedom of inquiry and research; freedom of teaching within the university or college; and freedom of extramural utterance and action.” </p>
<p>This is what makes laws like Québec’s Bill 32 problematic. It further <a href="https://theconversation.com/what-is-quebecs-bill-32-on-academic-freedom-and-why-does-it-matter-183122">confuses the distinction</a> between freedom of speech and academic freedom. Bill 32 is troubling because it grants the government special powers to dictate what happens in university classrooms. That <a href="https://www.theglobeandmail.com/canada/article-quebec-bill-on-academic-freedom-says-no-words-are-off-limits-in/">risks undermining</a> the very principles of academic freedom its proponents are purportedly trying to protect.</p>
<p>Academic freedom — and the corresponding protections of tenure — are often portrayed by conservative politicians and spokespersons as a <a href="https://www.insidehighered.com/views/2019/03/14/overlooked-administrative-and-financial-benefits-tenure-opinion">luxury perk</a> demanded by professors looking for a cushy frill few others enjoy. That kind of narrative might be convenient fodder for populists trying to gain support for their own agendas, but is the need for academic freedom really all that unusual?</p>
<p>The truth is that, while academic freedom itself might sound like a unique notion, granting special tools or rights to specific professions is rather commonplace. </p>
<h2>Work-specific considerations are common</h2>
<p>In order to effectively carry out the duties, tasks and responsibilities of one’s employment, workers in many fields are granted special access or consideration to otherwise publicly restricted tools, working conditions or rights.</p>
<p>Take occupations like sport, law enforcement, farming, journalism and more. In sport, hockey players are permitted to hit each other, and even fight within the game without fear of being arrested. Similarly, boxers may punch each other. Police and other agents of the state are permitted to carry and, under certain conditions, discharge a variety of weapons which would otherwise be restricted or banned.
At the extreme end of this spectrum are of course soldiers who are not only permitted, but expected to shoot, kill or bomb so deemed enemies. </p>
<p>Farmers may access large quantities of fertilizer and other restricted materials that are <a href="https://www.nrcan.gc.ca/explosives/restricted-components/9981#B1">otherwise regulated</a>. Medical personnel administer a variety of drugs that are tightly controlled. Elected federal and provincial members of Parliament and legislative assemblies may speak freely in their respective chambers <a href="https://www.ourcommons.ca/procedure/procedure-and-practice-3/ch_03_6-e.html">without fear of prosecution or civil liability</a> for any comments they make. Journalists <a href="https://laws-lois.justice.gc.ca/eng/annualstatutes/2017_22/FullText.html">cannot be forced to reveal their sources</a>.</p>
<p>It doesn’t require much imagination to see how the jobs above, without special considerations, would quickly become absurd, inefficient and even dangerous. Consider how boxing without hitting becomes dancing. Farming would be much less productive absent often necessary herbicides, pesticides and fertilizers. Medicine far less effective and more deadly without access to lifesaving drugs and procedures. Journalists would be incapable of investigating the happenings of the day if their sources were not guaranteed protections.</p>
<p>In each case above, considerations are earned and granted in recognition that these working conditions are needed to carry out work effectively and efficiently. When placed in this context, academic freedom is neither unique nor unreasonable. </p>
<h2>Dangerous precedents</h2>
<p>Unless we want academic scholarship to suffer, academics must be free to research and speak without fearing they will upset powerful interests. If academics become unable to practise their scholarship because they might upset wealthy private donors, corporations, a populist mob or even the government of the day, it would signal a dangerous shift. </p>
<p>We need only look at <a href="https://www.caut.ca/issues-and-campaigns/academic-freedom/academic-freedom-cases/dr-nancy-olivieri">Nancy Olivieri’s case</a> to see what can go wrong when powerful interests violate a researcher’s academic freedom.</p>
<p>Dr. Olivieri raised concerns about an experimental drug she was researching to treat <a href="https://www.cdc.gov/ncbddd/thalassemia/facts.html">thalassemia</a>. She found that the drug, deferiprone, could potentially cause serious complications. The pharmaceutical company warned her not to publish her results and tried to silence her while the university and hospital failed to protect her. Despite the <a href="https://voiced.ca/podcast_episode_post/on-academic-freedom-ft-drs-nancy-olivieri-and-marc-spooner/">lack of support and legal threats, Dr. Olivieri published her findings</a>. </p>
<p>If it were not for <a href="https://www.uwinnipeg.ca/awards-distinctions/honorary-doctorate/olivieri.html">her exemplary integrity and bravery</a>, patients involved in her trials, and countless others, may have been placed in harm’s way. </p>
<p>That is why academics and researchers require academic freedom. The need for academic freedom is not about elitist professors frivolously seeking privileges while breathing rarefied air in their ivory towers. It is simply the commonplace and understandable request of workers asking for the conditions they need to competently and effectively carry out their duties as expected, required and urgently needed by society.</p><img src="https://counter.theconversation.com/content/189035/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marc Spooner does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Academic freedom is increasingly caught up in partisan debates around freedom of speech. But the idea behind it is not only vital but shared across many other professions.Marc Spooner, Professor, Faculty of Education, University of ReginaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1887012022-08-14T12:12:26Z2022-08-14T12:12:26ZHow Salman Rushdie has been a scapegoat for complex historical differences<p>The Chautauqua Institution, southwest of Buffalo in New York State, is known for its summer lectures – and as a place where people come seeking peace and serenity. Salman Rushdie, the great writer and influential public intellectual, had spoken at the centre before. </p>
<p>On Friday August 12, he was invited to speak on a subject very close to his heart: the plight of writers in Ukraine and the ethical responsibility of liberal nation-states towards them. Rushdie has been an outspoken defender of writers’ freedom of expression throughout his career. </p>
<p>In the audience of around 2,500 at Chautauqua was Hadi Matar, 24, of New Jersey, who jumped on stage and stabbed Rushdie in the neck and the abdomen. </p>
<h2>The fatwa and the spectre of death</h2>
<p>It was more than 30 years ago – February 14, 1989 (Valentine’s Day) – when Ayatollah Ruhollah Khomeini, 88, the then spiritual ruler of Iran, condemned Rushdie to death via a fatwa, a legal ruling under Sharia Law. His crime was blasphemy against Prophet Muhammad in his novel <a href="https://www.penguin.com.au/books/the-satanic-verses-9780963270702">The Satanic Verses</a>, on a number of levels. </p>
<p>The most serious was the suggestion that Muhammad didn’t solely edit the message of Angel Gibreel (Gabriel) – that Satan himself had a hand in occasionally distorting that message. These, of course, are presented as hallucinatory recollections by the novel’s seemingly deranged character, Gibreel Farishta. But because of a common belief in the shared identity of author and narrator, the author is deemed to be responsible for a character’s words and actions. And so the author stood condemned.</p>
<p>Blasphemy against Muhammad is an unpardonable crime in Islam: a kind of divine sanctity surrounds the Prophet of Islam. The latter is captured in the well-known Farsi saying, <em>Ba khuda diwana basho; ba muhammad hoshiyar</em> (Take liberties with Allah as you wish; but be careful with Muhammad). </p>
<p>Since the fatwa, the spectre of death has followed Rushdie – and he knew it, even when the Iranian government ostensibly withdrew its support for the fatwa. (But without the important step of conceding that a fatwa by a qualified scholar of Islam – which Khomeini was – could be revoked.) Rushdie himself had not taken the occasional threats to his life seriously. He had lived more freely in recent years, often dispensing with security guards for protection. </p>
<p>Although Rushdie is now off a ventilator, his wounds remain serious. As his agent Andrew Wylie <a href="https://www.cnbc.com/2022/08/13/salman-rushdie-on-ventilator-after-stabbing-may-lose-an-eye.html">has said</a>, he may lose an eye and perhaps even the use of an arm. He will recover, but it seems unlikely he’ll return as the raconteur of old (as I knew him during my visits to Emory University, Georgia, where for five years during 2006-2011 he was a short-term writer-in-residence, and where his archive had been installed). </p>
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Read more:
<a href="https://theconversation.com/why-salman-rushdies-the-satanic-verses-remains-so-controversial-decades-after-its-publication-102321">Why Salman Rushdie’s ‘The Satanic Verses’ remains so controversial decades after its publication</a>
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<h2>Exposing fault lines between East and West</h2>
<p>We do not know what motivated Hadi Matar to act in the manner in which he did, but his action cannot be de-linked from the 1989 fatwa, reported by Time magazine in a <a href="http://content.time.com/time/subscriber/article/0,33009,957110-3,00.html">lead essay</a> titled “Hunted by An Angry Faith: Salman Rushdie’s novel cracks open a fault line between East and West”. </p>
<p>Rushdie made it to the cover of Time on September 15, 2017, when the magazine profiled him, and praised his new novel, <a href="https://www.penguin.com.au/books/the-golden-house-9781784707095">The Golden House</a>. In the <a href="https://time.com/4920053/salman-rushdie-trump-golden-house/">profile</a>, Rushdie reflected on the effect of the fatwa and the controversy around The Satanic Verses on people’s perceptions of his writing. The humour in his books was overlooked, he said, and his later works began to acquire the “shadow of the attack” on The Satanic Verses.</p>
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<a href="https://images.theconversation.com/files/479020/original/file-20220814-50124-qnaxe2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/479020/original/file-20220814-50124-qnaxe2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/479020/original/file-20220814-50124-qnaxe2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=924&fit=crop&dpr=1 600w, https://images.theconversation.com/files/479020/original/file-20220814-50124-qnaxe2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=924&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/479020/original/file-20220814-50124-qnaxe2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=924&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/479020/original/file-20220814-50124-qnaxe2.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1161&fit=crop&dpr=1 754w, https://images.theconversation.com/files/479020/original/file-20220814-50124-qnaxe2.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1161&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/479020/original/file-20220814-50124-qnaxe2.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1161&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>The Satanic Verses was published more than 30 years ago – some years before Rushdie’s attacker, Hadi Matar, was born. But the insult to Islam felt by Rushdie’s detractors seems to have endured regardless of the decades that have passed.</p>
<p>The ongoing debate over Rushdie (as the 1989 Time essay on the fatwa implied) has exposed fault lines between the West and Islam that had once remained hidden. These fault lines insinuated, the argument went, a radical difference between what constitutes artistic responsibility in the West and in the East (the latter narrowly defined as the Islamic Orient and what V.S. Naipaul <a href="https://www.washingtonpost.com/archive/entertainment/books/1998/07/12/the-muslim-diaspora/3c8a88ac-a1c9-4716-b472-8df2ecfaa3de/">called</a> the nations of Islamic “converts”). </p>
<p>This discourse of radical difference had already entered European humanist scholarship, as Edward Said recorded in his magisterial 1979 book, <a href="https://www.penguin.com.au/books/orientalism-9780141187426">Orientalism</a>. Many have argued Salman Rushdie’s Satanic Verses gave the debate a focus – and a tangible object that could be pointed to as a definitive example of the West’s antagonism towards Islam. </p>
<p>To most readers who value the relative autonomy of the novel as a work of art, this is a false, even misleading reading of the mediated nature of the relationship between art and history. But as Rushdie’s recent stabbing shows, the reading is still potent. </p>
<p>Sadly, Rushdie is overwhelmingly identified (by some) with anti-Islamic sentiments. This has distracted from his achievement as a writer of some of the finest novels written in the long 20th century – a great writer whose name is regularly put forward as a likely recipient of the Nobel Prize for Literature.</p>
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Read more:
<a href="https://theconversation.com/why-i-still-support-charlie-hebdo-47795">Why I still support Charlie Hebdo</a>
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<h2>More than a writer</h2>
<p>Salman Rushdie, an Indian Muslim, was born into a secular Muslim household, and grew up with books and cinema. The long-held wish of his father, Ahmed Rushdie, was to reorganise the Qur'an chronologically. </p>
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<p>Rushdie was born a few months before India gained its independence. The India he experienced before he left for prestigious English boarding school, Rugby, in 1961 was the unquestionably secular India of Nehru. That Nehruvian liberal vision, which India seems to have now lost, guided his writing and was the inspiration behind the spectacular success of his Booker prize-winning second novel, <a href="https://www.penguin.com.au/books/midnights-children-9780099511892">Midnight’s Children</a> (1981) – and the critical acclaim that followed his more creative novels, namely, <a href="https://www.penguin.com.au/books/shame-9780099578611">Shame</a> (1983), <a href="https://www.penguin.com.au/books/the-moors-last-sigh-9781409058878">The Moor’s Last Sigh</a> (1995), <a href="https://www.penguin.com.au/books/the-ground-beneath-her-feet-9781409058779">The Ground Beneath Her Feet</a> (1999) and <a href="https://www.penguin.com.au/books/the-enchantress-of-florence-9781407016498">The Enchantress of Florence</a> (2008). </p>
<p>Like another writer of the global Indian diaspora, V.S. Naipaul, Rushdie had come to the West with the express purpose of becoming a novelist. The fatwa dramatically turned him into something more than a writer: in fact, into a cultural icon representing the importance of a writer’s freedom of expression. </p>
<p>This claim to freedom is different from the general freedom of speech enjoyed by all in liberal democracies. A writer’s freedom is of a different order. It is a freedom earned through labour and artistic excellence. This freedom is conditional: it is not available to any writer. It has to be earned, by entering the canon of world literature – though not necessarily in terms of a European definition of literariness. Rushdie’s body of work indicates that he has earned it. </p>
<p>But we cannot leave it at that. The Rushdie experience also presents the challenge of how to negotiate that freedom across cultures – especially with cultures governed by carefully defined moral and religious absolutes. </p>
<p>The violent hysteria engendered by Rushdie’s magical treatment of Muhammad in The Satanic Verses was ultimately limited to a small minority. But it is often this small minority that fails to read absolutes allegorically, as intended. </p>
<p>The Chautauqua incident should not have happened, but it did. It is a price that art periodically pays, especially when it is taken as an easy scapegoat for more complex historical differences.</p><img src="https://counter.theconversation.com/content/188701/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Vijay Mishra receives funding from Australia Research Council for books written on Salman Rushdie: Annotating Salman Rushdie (London: Routledge, 2018) and Salman Rushdie and the Genesis of Secrecy (London: Bloomsbury, 2019).
For a month each year during 2010-2012 he worked on the Salman Rushdie Archive at Emory University</span></em></p>Salman Rushdie, great writer and outspoken defender of writers’ freedom of expression, has been under a fatwa for more than 30 years. He’s set to recover from a shock stabbing last Friday in New York.Vijay Mishra, Emeritus Professor of English and Comparative Literature, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.