In his article, “The Silent Treatment,” Robert Wright, author of The Moral Animal and senior fellow at the New America Foundation, writes that self-censorship, but not censorship, is as American as apple pie. This introduces a subtle perspective on the currently raging “cartoon controversy.” It also raises the question whether this traditional American institution of self-censorship and self-discipline is dying.
This issue of self-censorship required for freedom of religion played out more than a decade ago in the American courts over the issue of whether Native American rituals using hallucinatory drugs (pejote) are legal. I cannot remember the details or even the main outlines of this classic case in constitutional law. As I remember, however, the courts ruled against the Native Americans. Almost fifteen years ago, as head of the law division of the American Muslim ouncil and as president of the Muslim American Bar Association (MABA), and as a founding president of the Native American Economic Development Corporation, I participated in a movement with Mahdi Bray and others to push legislation through Congress requiring respect for religious symbols and practices of any religion, provided that they did not pose an undue burden on the rest of society. Congress did pass such a law. But, then the U.S. Supreme Court declared this law unconstitutional. The constitutional ruling seemed to be “what is good for the goose is good for the gander.” No special exceptions for religion.
The issue then would seem to be what is constitutionally required self-censorship in order to respect what is sacred to some (e.g., religion) even if this may conflict with other provisions of the law (e.g., freedom of the press). In other words, must freedom of speech be curtailed if it might infringe upon what some members of society consider to be a sacred part of their religion? Or, more basically, do we start with the base case of human responsibilities, from which all rights descend, or to we start with rights, which do not necessarily entail or result from carrying out responsibilities.
Still more basically, is the U.S. jurisprudential system based on positivist law, which has no limits, or is it based on natural law, which is based primarily on responsibilities. Harvard Law School has one hall dedicated to positivism, Austin Hall, and one dedicated to the champion of natural law, U.S. Supreme Court Justice Story. The final question would be whether “we the people” have a right to a totalitarian government (Austinian jurisprudence), or do we have a responsibility to pursue the first purpose in the formation of the Great American Experiment, posited in the Preamble to the American Constitution, namely, justice, and by derivation therefrom the other four purposes, among which freedom is listed last.
In the “pejote” case the U.S. Supreme Court established the current law against freedom of religion by setting limits on any responsibility to respect both religion and religious freedom. It would be interesting to see whether the cartoon controversy in a reverse spin could produce a ruling requiring a responsibility to self-censor free speech as a responsibility in order to respect freedom of religion.
If the question is cast as free speech versus freedom of religion, we would have an interesting new measuring stick to evaluate the evolution of law in America. Then we would be better able to evaluate any lack of balance among the three guiding principles in the traditionalist paradigm that gave rise to America, namely, the mutually interdependent principles of order, justice, and freedom.