Last week Pope Francis encountered some criticism for suggesting that there are limits to freedom of speech. His comments were made in the wake of the attack in France on the magazine Charlie Hebdo. Without in any way condoning the lawless violence, Francis observed that there ought to be a decent limit to freedom of speech, that it ought not to be abused with a view to trampling on people’s religious beliefs or what they otherwise hold dear. As an example, he noted that if you insult his mother, you should expect a punch.
Some western leaders have distanced themselves from these remarks, and some western commentators have been especially critical. The irony of this criticism–at least as it seems to me–is that by it the critics show that they have forgotten or do not know the history of freedom of speech in the west. That history, or the traditional understanding of freedom of speech, is perfectly consistent with what Pope Francis said. It is a tradition that recognizes a distinction between liberty and license, holding that the latter is an unjustified abuse of liberty.
This is clear if we examine the case of America, which has one of the most robust traditions of free speech, one that is enshrined in our fundamental law. The First Amendment provides that Congress shall make no law abridging freedom of speech or of the press. This provision has never been understood as a warrant to say just anything you want without any legal restrictions. The traditional approach of the Supreme Court, which it has never repudiated, holds that some categories of speech are not even under the protection of the First Amendment. These include libel, slander, obscenity, and “fighting words.”
The last category is of the greatest present interest because it corresponds exactly to the point the Pope was making. It is a matter of moral common sense, known by everybody, that there are some things you can say to a person that are as provocative as throwing a punch at them–racial epithets, for example, or, as Francis noted, casting aspersions on the virtue of a person’s mother. American law has recognized that common sense by holding that fighting words–words that are likely to result in a breach of the peace–do not deserve the protection of law and in fact may be punished by the law.
Here two distinctions are in order. First, the idea that there is such a thing as fighting words does not excuse the behavior of the person who reacts violently when provoked by such words. If you insult a man’s mother–or his faith–to his face, and he punches you, then it may well be that he is guilty of assault and you, too, are guilty of a breach of the peace. The doctrine recognizes that the provocateur bears some responsibility, too.
Second, insulting speech is not the same thing as critical speech. Holding that insulting speech is not protected does not mean that people are unfree to make whatever criticisms they think are appropriate. It is therefore possible to have the very limit on free speech that Francis advocated, while at the same time having a robust debate about the merits of various religions. One can mount a serious intellectual critique of Christianity, say, or Islam, without stooping to vulgar abuse.
This second distinction is essential to maintaining a decent and free society. To forbid speech that would be insulting and offensive to any person is the mark of a decent society. To forbid speech that is merely critical of things that some people believe and don’t want to hear criticized is the mark of an illiberal society.