In February 1989, Ayatollah Khomeini issued a fatwa inciting the faithful to murder author Salman Rushdie for blasphemy. Within a few days, professional writers convened in London, New York, and elsewhere to discuss countering this threat. In London, we met at the National Union of Journalists’ offices in Gray’s Inn Road. We had fierce arguments about how to best defend not only Rushdie, but our own right to publish without being sentenced to death. Our immediate concern was to protect Salman and his collaborators on The Satanic Verses, primarily his publishers, translators, and agents.
We published a letter signed by writers from all over the world in defense of free expression. Anthony Barnett and I had been assigned to word our first draft so that Muslim writers would sign with us. The resulting letter was published in newspapers worldwide a few days later, signed by thousands of writers that included Muslims, Jews, Christians, Hindus, agnostics, and atheists. It did not save the life of Rushdie’s Japanese translator, nor did it save his Italian translator from being beaten and stabbed, but it demonstrated that scribblers from all parts of the globe would not be cowed by religious edict.
Unfortunately, our resistance to that fatwa did not set much of a precedent. The recent incitements to murder Julian Assange emanating from politicians, journalists, and pundits constitute a new secular fatwa that threatens our freedom to disseminate information. The incitements even crossed into normally quiescent Canada, where former prime ministerial advisor Tom Flanagan demanded that Assange “should be assassinated” and that Obama “should put out a contract and maybe use a drone” to kill him. (Flanagan was born in America, which may explain in part his un-Canadian bloodlust.) “Why was he not pursued with the same urgency we pursue al-Qaeda and Taliban leaders?” asked Sarah Palin. (If the U.S. pursues him as it has Osama bin Laden, Assange is safe for years to come.) Bob Beckel, former Deputy Assistant Secretary of State and current Fox News contributor, said on air:
The way to deal with this is pretty simple. We’ve got Special Forces. A dead man can’t leak stuff. This guy’s a traitor, he’s treasonous, and he’s broken every law of the United States. The guy ought to be…and I’m not for the death penalty, so if I’m not for the death penalty, there’s only one way to do it: illegally shoot the sonofabitch.
On the same program, Bo Dietl, a former New York cop turned private investigator, jumped in to say, “I’m with Bob.” A little later he added, “You should take this guy out.
By any standard, these and other calls for Assange’s death constitute incitements to murder as much as Ayatollah Khomeini’s fatwa did. The question is whether such speech is protected under the First Amendment. I personally believe that all speech is protected—when it is speech. Julian Assange has the right to publish documents, as do the newspapers with which he shared the them. Salman Rushdie has the right to offend those who read The Satanic Verses—even to offend the many who haven’t read a word of it. In theory, Sarah Palin, Mike Flanagan, and Bob Beckel have the right to say what they think about Julian Assange.
What those who demand a man’s murder are doing, however, is not merely stating facts or lies, opinions or observations. In voicing what the philosopher J. L. Austin called “performative utterances,” they are acting. These are not statements that can be true or false; they are “speech acts.” When a military officer orders his men to go into action, he is not exercising free speech so much as he’s issuing a command. Moreover, he is held responsible under the Uniform Code of Military Justice and the Geneva Conventions for his orders. When Ayatollah Khomeini issued the death sentence on Salman Rushdie, he was not giving an idle opinion but instructing those who accepted his proclamations to take action. When Al Capone told one of his heavies to rub somebody out, that heavy had to do some quick rubbing or be rubbed out himself. If someone comes to your house with a firing squad and declares, “Ready, aim, fire,” the First Amendment would be no defense in court against a murder charge.
The idea that incitement to murder is permissible free speech was expressly condemned by, of all agencies, the Coalition Provisional Authority in Iraq in July 2003. It shut down the Al Mustaqila newspaper for urging death to “spies and those who cooperate with the U.S.” One of the State Department members of the C.P.A. at the time was Bill Stewart, who is now the Deputy Chief of Mission at the U.S. Embassy in Stockholm. (We may read via some future leak what he said to the Swedes regarding their prosecution of Julian Assange for ostensible crimes against two women who chose to go to bed with him.)
Some people may believe Sarah Palin and Fox News’ “experts” as much as some Muslims believed Khomeini. If anyone had murdered Rushdie (and a few tried), Khomeini could not deny responsibility. The United States Supreme Court has recognized the fact that speech is sometimes an action in itself. In Virginia v. Black et al., Justice Sandra Day O’Connor wrote the majority opinion:
We have consequently held that fighting words – “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction” – are generally proscribable under the First Amendment….And the First Amendment also permits a State to ban a “true threat.”
Therefore, I call upon prosecutors in the states where public figures have demanded Julian Assange’s assassination to investigate whether these incitements to murder may be prosecuted. This is my performative utterance, and I hope the Attorneys General will act on it before some idiot with a deer rifle takes it into his head to follow the recommendations of Palin, Flanagan, Beckel, et al.
Cross-posted with thanks from takimag.com