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The Cartoon Controversy, Part One: The "Anti-Soldier" Cartoon and Editorial, the "Anti-Muslim" Cartoons, and the Government's Position

Tuesday, Feb. 14, 2006

This month, events across America, Europe, and the Middle East have posed the issue of freedom of speech and its boundaries (if any) in some of the most graphic possible ways.

On February 2, the Joint Chiefs of Staff took the unusual step of writing a letter to the Washington Post criticizing one of its cartoons - depicting a dramatically wounded, quadruple amputee soldier -- as "beyond tasteless."

And on February 3, the Bush Administration issued an official statement condemning a set of twelve controversial cartoon images of the Prophet Muhammad, published in a Danish newspaper, as "offensive."

Abroad, angry protests over the same cartoon images have led to arson - with Danish embassies in Lebanon, Syria, and Iran in flames - and even, in some cases, to death. Iran announced its decision to hold a "Holocaust cartoon" contest, arguing that anti-Muslim images are deemed acceptable, when anti-Jewish or anti-Christian images are not. And massive boycotts by Muslims of products from Denmark and other European countries where the cartoons have been published have caused large financial losses.

In response, some European newspapers have opted to reprint the Danish cartoons in what they say is a pro-free-speech protest. Yet interestingly, despite America's pride in our First Amendment, American newspapers have balked at reprinting the images -- declining to reprint them either as a form of protest, or simply as a way to show their readers the subject of the controversy. (The San Francisco Chronicle, an exception, did print one cartoon.)

Assessing all of these responses, it's important to ask: Which is truly pro-free-speech? And what place, if any, do claims of "offensiveness" have in a society where speech is supposed to be free? In a two-part series of columns, I will address these questions.

Government Speech: Weighing In on Cartoons -- and Misinterpreting Them

Let's start with the Washington Post cartoon, by Tom Toles. As noted above, it depicts a quadruple-amputee soldier, with a bandaged head. He is being attended by "Doctor" Donald Rumsfeld. Rumsfeld comments, "I'm listing your condition as battle-hardened." At the bottom of the cartoon, in smaller type, is Rumsfeld's further comment, "I'm prescribing that you be stretched thin. We don't define that as torture."

The Joint Chiefs deemed the cartoon "a callous depiction of those who have volunteered to defend this nation, and as a result, have suffered traumatic and life-altering wounds," and told the newspaper it had a responsibility not to "make light of [soldiers'] tremendous physical sacrifices."

This kind of gross misinterpretation makes one wish there were a few more English majors graduating from West Point these days. The cartoon's sympathies are firmly with the vulnerable soldier, and against Rumsfeld - plainly the callous one here. In light of reports of our troops being stretched thin because of the massive deployment in Iraq, and because soldiers' tours of duty have extended well beyond their original discharge dates through a "stop-loss" policy, the cartoon suggests - hyperbolically -- that Rumsfeld is willing to put even such terribly maimed soldiers back on the front lines of battle in Iraq.

The Joint Chiefs seems to have entirely missed the cartoons' message - but it ought to be a familiar one. Indeed, it is the same as that of Wilfred Owen's famous World War I poem, "Dulce et Decorum Est." Here are its final lines:

If you could hear, at every jolt, the blood
Come gargling from the froth-corrupted lungs,
Obscene as cancer, bitter as the cud
Of vile, incurable sores on innocent tongues,
My friend, you would not tell with such high zest
To children ardent for some desperate glory,
The old Lie; Dulce et Decorum est/ Pro patria mori.

(The last phrase is Latin for "It is sweet and right to die for one's country.")

In sum, the cartoon simply did not express disrespect for the soldiers. Rather, it suggested, as Owen's poem did, that they had been lied to, and hurt terribly because of the lie. In this sense, the Joint Chiefs' letter was simply misguided.

If Cartoons Truly Are Offensive, Should the Government Speak Out?

But let's ask a more difficult question: What if the Toles cartoon really had been offensive - and could reasonably be interpreted as an attack on wounded soldiers? Would it have been right for the Joint Chiefs to speak out against it?

Or, to consider a more concrete example, what if the Joint Chiefs had chosen to take aim, instead, at Joel Stein's notorious L.A. Times Op-Ed, "I Don't Support Our Troops"? There, Stein argued that the troops don't need our moral support, but concrete improvements in conditions, such as "body armor, shorter stays and a USO show by the cast of 'Laguna Beach.'" - as well as "hospitals, pensions, mental health and a safe, immediate return."

In a sense, Stein was making the very same point as Toles (and Owen before him): Our soldiers are hurting, and dying, and we need to respond to that reality with more than just spin. But unlike Toles, he did it in a way that the Joint Chiefs might reasonably have found offensive, without any misinterpretation of his message. After all, for every serious argument Stein made, he threw in a "Laguna Beach"-type reference. And he arguably condescended to the troops, joking that it's not that he doesn't like them; to the contrary, he opines, "If you're wandering into a recruiter's office and signing up for eight years of unknown danger, I want to hang with you in Vegas."

So while I personally don't find Stein's column offensive, and I think he was brave to write the column, I also think the Joint Chiefs could make a reasonable argument that the column was, indeed, offensive.

And if they think so, I think they should also say so - loudly and often, if they'd like.

The Line Between Government Speech, and Government Censorship

Readers of this column will know that I strongly believe in the First Amendment - including its bar on any government censorship of speech that is based on the speech's supposed "offensiveness."

More generally, I've never understood the claim that if criticism must be allowed, it ought to be "respectful" - that is, utterly de-fanged. If a writer believes what he is saying, she ought to try to make it as memorable as possible.

And sometimes, speech is memorable because it stings. After all, Stein's "Laguna Beach"-esque references might draw the reader's ire, but they're hardly going to make him lose interest. And had Toles's cartoon soldier looked more realistic and less, well, cartoonish, readers might not have dwelled on the image. It's the irony of a soldier - a warrior -- being depicted as so totally helpless, that gives the cartoon its staying power in one's mind.

But I also believe in the government's right to communicate its own message - as long as doing so doesn't involve censorship - even if that message is that it finds certain speech offensive and disrespectful.

Admittedly, the line between expressing censure and being a censor is hard to draw. I think the government crosses it when it "suggests" beforehand, for instance, what networks should, or should not, broadcast. Forcing networks to choose their programming in the shadow of the government's "suggestions" is too coercive.

Similarly, I think that if government pressure was behind the New York Times' apparent decision to impose a lengthy delay before printing news of Presidential lawbreaking, on the warrantless wiretapping issue, that pressure, too crossed the line. And if the pressure was accompanied by some not-very-veiled threats of investigation or prosecution, of the Times or its sources, such threats went far over the line indeed.

Pre-Publication Government Pressure Versus Post-Publication Government Comments

None of these examples implies that the government should, in effect, be gagged - forced to remain silent about its views on private speech. But they do suggest that post-publication government commentary on speech is generally more acceptable from a First Amendment standpoint than pre-publication pressure not to publish.

This is true, I believe, for much the same reason that courts might entertain a lawsuit for post-publication damages, but would, in the same case, opt to void a pre-publication "prior restraint" by the government. Once the speech is out there, and the chips have fallen where they may, the legality and consequences of the speech can be assessed without hysteria, on the basis of a factual record.

For this reason, I don't think the Bush Administration did anything improper in saying, of the controversial images of the Prophet Muhammad that had been published in a Danish newspaper, "We find them offensive, and we certainly understand why Muslims would find these images offensive." (Of course, the Administration has also condemned the violence triggered by the cartoons, as it should.)

Indeed, the Administration's ability to speak out when it perceives speech to be offensive, provides another good reason why it ought not be able to censor speech based on perceived offensiveness: When the government can so easily use persuasive power, it can give no good reason for invoking the force of law.

In the second of this series of columns, to appear on February 28, I will discuss further the issue of the twelve Danish cartoons that many Muslims found offensive, and the various responses that have been made to the cartoons.

Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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