Many of the Supreme Court’s decisions as to state sovereign immunity are problematic, but there is an originalist basis for some of those decisions.
Any retrospective reflection on the 30th anniversary of the Salman Rushdie affair must begin with an unequivocal condemnation of Ayatollah Khomeini’s fatwa. This is the story’s most horrifying aspect. As we contemplate the challenges facing our globalized and multicultural world, it is impossible to conceive of coexistence if the head of state of one member of the international community is allowed to get away with calling for the murder of an author, for writing a work of fiction.
I make this statement as a Muslim who deeply empathized with the grievances of my coreligionists over the perceived defamation and ridicule of our sacred symbols, a defamation which has deep historical roots in the Western depiction of Islam. Nonetheless, how one responds to offenses like these profoundly matters. A clear red line must be drawn, regardless of the offense, against legitimizing the use of violence directed at writers, lest our world descend into anarchy. Freedom of speech loses its value where it is not protected.
Having stated this up front, let me turn to interpretation and analysis. Three decades have passed since the Rushdie affair. What are the lessons we have learned or not learned?
Mustafa Akyol’s Liberty Forum essay is an excellent guide. He has written a thoughtful, nuanced and insightful analysis that I am in broad agreement with. I would like to expand on three divides which Akyol touches upon: 1) the Islam-West divide, 2) the sacred-secular divide, and 3) the state-society divide in Muslim societies.
Islam Versus the West
There is a widely held view in the West that the Rushdie affair represents a clash of civilizations: between a tolerant, rational, and civilized West, which places a premium on artistic expression, and an intolerant, violent, and uncivilized Islamic world that rejects independent thought. This black-and-white reading, while intellectually soothing to many in the West, is the stuff of fantasy. To underline this point, compare the very different responses from Western liberal governments toward threats made against two writers: Salman Rushdie and Jamal Khashoggi.
When the Ayatollah Khomeini issued his infamous death threat in 1989, Western ambassadors were withdrawn from Tehran, relations were frozen, and Khomeini’s action was repudiated. In the case of the murder of the Saudi journalist Khashoggi, by contrast, condemnation from Western governments was equivocal (as distinct from the strongly condemnatory reactions of civil societies). Despite the Saudi government’s clear responsibility for murdering one of its critics, diplomatic relations between Western governments and Riyadh have remained intact. The Crown Prince of Saudi Arabia, Mohammad Bin Salman, was quickly absolved of responsibility and Saudi Arabia has been welcomed at the G20 summit and at the World Economic Forum.
To illustrate this clear gap between rhetoric and action, remember that Khashoggi’s body has still not been recovered because the Saudis refuse to reveal its whereabouts. The Western response to this egregious crime against a dissident writer has been telling. Reflecting a position shared by Western liberal governments, the President of Switzerland recently stated in Davos: “We have long since dealt with the Khashoggi case . . . We agreed to continue the financial dialogue and normalize relations again.” While this comparison is not exact, in part because Rushdie is alive while Khashoggi was murdered and his body dismembered, the very different responses from Western liberal democracies toward threats against two writers, shatters the simplistic binary of an enduring Western Enlightenment confronting unrelenting Islamic barbarism.
On the question of violence across the Islam-West divide, there is no equivalence in the number of Westerners and Muslims who have died. The United States has killed many more Muslims in recent decades rather than the reverse. Analyzing a 30-year period beginning in 1979, with the Iranian Revolution, Harvard political scientist Stephen Walt concluded that “the United States has killed nearly 30 Muslims for every American lost” during this period. He arrives at this ratio through a careful consideration of the data, weighing potential objections and different scenarios while pointing out that in arriving at his conclusion he has “deliberately taken the ‘low-end’ estimates for Muslim fatalities, so these figures present the ‘best case’ for the United States.” The point here is that violence across the Islam-West divide is not unidirectional.
With respect to the banning of books and the silencing of controversial opinion, the United States has a long history that is worth recalling in the context of the Rushdie affair. One relevant example is the campaign that was waged against the ideas of philosopher Bertrand Russell. In 1940, Russell’s views on education, marriage, and morality were deemed to be flagrantly offensive. A media frenzy, led by the Episcopal bishop of New York and backed by popular opinion, caused Russell to lose his professorship at the City College of New York. The city’s mayor withdrew funds for the position and the matter went to the New York Supreme Court, which ruled against “a chair of indecency,” determining that Russell was morally unfit to teach philosophy to American students.
Turning to works of fiction, many novels that are now considered classics were once banned. A short list includes Joseph Heller’s Catch-22, Daniel Defoe’s Moll Flanders, Harriet Beecher Stowe’s Uncle Tom’s Cabin, Lady Chatterley’s Lover by D.H. Lawrence, J.D. Salinger’s The Catcher in the Rye, James Joyce’s Ulysses, and Voltaire’s Candide, just to name a few. At the time they were published, these works of fiction were deemed controversial, offensive to public values and religious morality. Censorship of art, it should be remembered, is not relegated to one side of the Islam-West divide. There is a history of this practice in the West that is often forgotten when making civilizational comparisons and judgements.
Sacred Versus Secular Divide
In his essay, Akyol astutely observes that the real divide which informs the Rushdie crisis is not Islam versus the West but the West versus the East: “In most Eastern cultures [including among Eastern Christians], honor and shame are determinative.” I would frame this slightly differently. In today’s world, there is a substantive moral chasm between societies that believe in the concept of the sacred—and that the sacred should be protected by law—versus societies that do not.
In his magisterial study, A Secular Age (2007), Charles Taylor examines the history of secularism in the West. He begins by noting that in the year 1500 it was impossible not to believe in God, but by 2000 this no longer held true as “a purely self-sufficient humanism has come to be a widely available option.” This cultural transformation involved an emerging critique of religion and the creation of non-religious moral frameworks. It gradually shattered the consensus on what constituted the sacred, along with the accompanying belief that notions of the sacred should be protected by blasphemy laws. In 2008, England and Wales formally abolished their laws on blasphemy; Ireland did so (as Akyol reminds us) only last October.
The reasoning behind the enactment of blasphemy laws merits some consideration here. Some matters were once so deeply connected to the collective identity, self-worth, and core values of a society that public opinion demanded that they be protected by law. But this gradually changed. This development was connected with the decline of religion in the West that ran parallel with another emerging value—the right to freedom of expression, including opinions that were critical of religion and that questioned what constituted the sacred. Laws were gradually rewritten in the West to reflect these changes.
Today, in some of the least religious parts of the world such as Europe, “secular blasphemy laws” exist, although they are now cast in different language. These secular blasphemy laws serve as the functional equivalent of religious blasphemy laws and are motivated by the same impulse: to protect the core values and foundational identity of communities that have been shaped by historical events. I am referring to genocide denial and Holocaust denial. Today, the following countries have all enacted legislation that criminalizes this form of speech to varying degrees: Austria, Belgium, the Czech Republic, France, Germany, Liechtenstein, Lithuania, the Netherlands, Poland, Romania, Slovakia, Spain, and Switzerland. While the United States has not adopted such laws due to the expansive scope of the First Amendment, Americans can certainly understand the European impulse to ban hateful speech given the horrors of the Nazi Holocaust. Every community considers some values sacred and seeks to protect what it values most, sometimes with legislation.
Questions of freedom of speech should be understood in a historical context that continually evolves. We need to consider the limits of free speech, measured against historical experience. Where should freedom of speech begin and end? Should anything be held as sacred? In answering these questions, there are no blueprints that apply universally, to be easily transplanted onto other societies. All emerging democracies struggle with these questions, which then give shape to state-society relations. We can see this process unfolding today in some Muslim societies.
State Versus Society
Tunisia is home to the Arab Spring. It is the one country rocked by revolution that successfully experienced a democratic transition. When Tunisians gathered in 2012 to write a new constitution, one of the most acrimonious debates revolved around the tension between freedom of expression and protection of the sacred. Article 6 of the Tunisian Constitution declares, “The State is the guardian of religion. It guarantees liberty of conscience and of belief.” It also goes on to affirm that “The State commits itself . . . to the protection of the sacred and the prohibition of any offense thereto.”
There are serious contradictions within this constitutional formulation. After praising the progress Tunisians have made in the direction of liberal democracy, Human Rights Watch noted that this article of the constitution allows “for the most repressive of interpretations in the name of offense against the sacred.” The group urged Tunisian judges to immediately address these inconsistencies to prevent serious human rights abuses.
From a legal perspective, this criticism is warranted; but, as noted above, from a historical perspective these tensions are to be expected. Tunisia is no different from other emerging democracies in trying to reconcile competing values in its founding document. Debate and disagreement will continue and should be welcomed. These are the growing pains of democracy. It is hoped that as long as Tunisia remains an open society, a consensus will eventually emerge in support of a strong human rights reading of Article 6.
Reforming Islamic conceptions of blasphemy is essential. One of the important contributions that Akyol makes pertains to how this might be accomplished. He calls for a rereading of the Qur’an and advocates an ethical understating of Islam based on a historical and contextual methodology. He cites the late Professor Fazlur Rahman, who pioneered this approach.
In 1968, Professor Rahman fled persecution in his native Pakistan to come to the United States. He became the Harold H. Swift Distinguished Service Professor of Islamic Thought at the University of Chicago, where he influenced generations of students (including my fellow respondent, Hillel Fradkin).
It is not a coincidence that Rahman developed his powerful and persuasive ethical reading of Islam in an open society where his academic freedom was protected. This allowed him to debate, explore, criticize, and rethink Islamic norms. An ethical and humanistic reinterpretation of Islam can only take place in a free and democratic society. This cannot happen under the rule of an authoritarian regime, as authoritarian regimes seek to control religion and to manipulate it in the service of state power, for the benefit of ruling elites.
Similarly, Khomeini’s understanding of Islam was a reflection of the environment in which he was born and raised. He lived during the expanding authoritarian reign of the Pahlavi monarchy, both the father and the son, the latter of whom was installed in power after a CIA coup. This event ended Iran’s brief experiment with democracy in the early 1950s and created social conditions that were ripe for the growth of Islamic radicalism.
We can only speculate where Iran might be today, had the United States supported democracy instead of dictatorship. Where might the Middle East be today in terms of its own political, intellectual, and theological development? Where might the broader Islamic world be today if at the center of it, there existed a vibrant, longstanding and robust democracy?
One thing that can be said with certainty, however, is that there would not have been a 1979 Islamic Revolution. Most Iran scholars who have studied the subject (Nikki Keddie, Ervand Abrahamian, Said Amir Arjomand) admit that the roots of this event can be traced back to the 1953 American-backed coup. As a consequence, Khomeini would not have been in political power in 1988 when Salman Rushdie’s book was published.
For those who genuinely care about freedom of speech, civilizational coexistence—and how the United States might play a constructive role in advancing these ideals—there are important lessons here for those who are prepared to heed them.