Nic Dawes was right to publish but Zapiro was wrong to ask him to

We all know by now, of course, that Zapiro has caused another minor storm in a cartoon teacup. There has been a lot of conversation over the past few days reflecting on the thorny question of whether or not the Mail and Guardian should have published the offensive cartoon. Opinions, even among editors, differ widely.

Ferial Haffajee from City Press opined that she may have resigned in the face of a seemingly intractable moral dilemma: her intuitions pull in two different directions; on the one hand, the free speech champion in her demands that she should publish, but a sense of respect and awareness of religious sensitivities that are not unimportant, in her view, pull in a different direction.

Ray Hartley from the Sunday Times expressed a more firm conviction that he would not have published. Peter Bruce from Business Day and Sunday Independent's Makhudu Sefara declined my tjatjarag sms-attempts to solicit their views.

Nic Dawes, from the M&G, justified publication in part on the basis that he would not have published the Danish cartoons which were more clearly Islamophobic, in his view; this cartoon, however, did not have such overtones....translation: Zapiro did not plant bombs in Muhammad's turban, and that's the critical and relevant moral line for Mr Dawes.

Who is right? Well, ethical debates are not logical puzzles. One sad fact about the divisive nature of this debate is a lack of understanding by all who hold strong views - on both sides of the issue - that ethical debate is inherently murky. Yes, some arguments are stronger than others. I have yet to see a compelling moral argument for racism, for example. But these clear cases obscure the majority of inherently difficult cases.

Sometimes (and this cartoon debacle is one such case, contrary to the convictions of BOTH libertarians and religious fundamentalists) ethical debate must end, however unsatisfying, in rock-bottom intuition differences about how to balance competing ethical considerations. I can therefore only put and explain my own view. You may or not agree with it.

Bluntly put, I think that the M&G, qua newspaper, and Nic Dawes as editor, were spot-on in their decision to publish the cartoon. In an ethical twist, however - which may or may not satisfy those who agree with my endorsement of Dawes' judgment - I think that the cartoonist, Zapiro, should have exercised self-censorship by NOT submitting the cartoon in the first place. Let me explain this seeming paradox and argue for it.

Let's describe the cartoon in case you've not seen it. In the cartoon, the prophet is seen lying on a reclining chair in a shrink's office with a speech bubble that exclaims, "Other prophets have followers with a sense of humour!" Next to him is a newspaper with a headline that states ‘"Everybody draw Muhammad"' Day. A sub-header reads, ‘Fatwa on cartoonists'. This raises an obvious question: should the newspaper have published the cartoon?

First, there can be no doubt that freedom of expression, and media freedom more generally, are critically important cornerstones of our democracy. It is easy to rehearse the general moral arguments in favour of these freedoms and so justify and understand their place in our constitutional edifice. In essence, an open, deliberative society, which is what we are striving towards as part of the normative vision for this country, requires all of us to have relatively thick argumentative skin so that we could thoroughly and honestly debate issues that are critical to the growth and development of our nation.

Questions that centre on religion and religious identity are no exception. The point of the media, in turn, is to act as one important vehicle through which these freedoms can be enjoyed. The media's role is not to close down debate but to facilitate it. And, barring legal limitations on free speech, the media should, in general, err on the side of avoiding pre-publication censorship and deferring instead to the marketplace of ideas for sensible speech to be distinguished from senseless speech. Decisions about what counts as speech worth publishing are fraught with personal and institutional biases and that is why, in borderline cases, one should err on the side of publication.

With this general principle in hand, it seems to me that the M&G was justified in publishing the cartoon. The cartoon potentially occasions a number of substantive debates, such as the difficult question of what those of us who do not subscribe to a particular denomination should make of injunctions that stem from that denomination.

On a meta-level, the cartoon also raises the classic debate of what moral limits there should be on free speech. These limits are often context-specific so it is worth raising the question afresh, periodically, rather than assigning the debate to history as if one timeless moral truth had been established for all contexts henceforth.

An editor then needs to balance the benefits of potentially healthy conversations that might arise from the cartoon's publication with the less desirable possibility that some people might take offense that their prophet is depicted at all. The paper regarded the principle of freedom of expression, in this particular instance, to be overriding.

This is not to suggest that there should be no limits on free speech. There are legal limitations already. These legal limitations, such as prohibitions on hate speech or private law that prohibits speech that injures one's reputation, are good. They are also justified on independent ethical considerations.

But the mere fact that someone takes offense does not count as a reason to limit freedom of expression in a particular instance. There has to be a more demonstrable harm suffered by someone or a group or the likelihood of, say, imminent violence. These are difficult determinations. But it seems to me that too many devout religious followers assert a non-existing right to not be offended. No one has a right to not be offended by someone else's speech acts.

It is therefore bizarre that so much value is being attached to the offensiveness or blasphemous nature of the cartoon by some of the critics of the M&G's decision to publish. Why should the offensive nature count as a reason to limit a cartoonist's right to lampoon? And, in the absence of a right not to be offended, it seems that there is little further legal ground on which religious followers might rest their case for why the newspaper ought to have censured its cartoonist short of proving hate speech.

My view, of course, is an articulation of free speech and media freedom that rest on a very wide interpretation of what ought to be legally permitted in a liberal society. No doubt argument might yet be put for why, even in an open, deliberative society, greater moral and legal weight should be placed on the offensive or blasphemous speech acts. I have not, however, come across such an argument over the past few days.

Yet, despite this defence of the newspaper's decision to publish the cartoon, we could still ask whether Zapiro himself made the right judgment call. The answer is not an obvious yes. We have to distinguish the cartoonist's right to lampoon and offend from his decision to do so.
Artistic and intellectual freedom, in my view, justify the implicit decision by the editor to defer to the cartoonist's personal judgment on what cartoon to publish. This is not to say an editor should never intervene. But, as Dawes pointed out, he would have stepped in as editor if this cartoon resembled those published in Denmark, which were more demonstrably Islamophobic, such as the one which depicted Muhammad as wearing a turban made of bombs. But Dawes rightly decided that in the absence of outright hate speech, he will defer to the cartoonist.

This leaves us open to ask whether the cartoonist needed to exercise his right to offend. And it seems to me that he could have opted for self-censorship without thereby losing sleep in a fit of bother about whether he is becoming meek. He would not be losing his general power as a provocative commentator. Instead, self-censorship would be justified by the contextual fact that the politico-religious sentiment of the day requires sensitivity on the part of artists, writers, commentators. This is context-specific and need not translate as a slippery slope towards a permanent erosion of substantive media freedom.

The reality is that many, even if not all, Muslims do feel deeply about the question of whether or not their spiritual head is depicted at all - with or without a buffet of bombs and heavenly virgins. The question is why us non-believers are hell-bent on showing off our legal right to piss off these particular segments within the Muslim world? Why get tjatjarag just because you can?!

We need to distinguish not only between legal and moral norms, as I often insist, but in fact also add to that distinction by recognising (at the risk of making hard-ass libertarians laugh out loud), considerations of etiquette. The SOLE set of norms that defenders of Zapiro have relied on have been the legal ones; shades of moral argument (not fully cashed out) sometimes lurk in the background.

But, no one has meditated on the personal judgment call that the artist himself can and does make about how to respond to a range of considerations, including an etiquette of decency, when there is no major moral, epistemic or other gain to be had from producing a particular artwork. I refuse to believe that Zapiro's cartoon has added an iota of value to our general understanding of, or debate about, religion or free speech.

We learnt nothing we did not know on Thursday morning. It was therefore dispensable, not least in the face of these ethical pressures and considerations of etiquette, which are not morally eliminable. This is NOT - I repeat - to suggest that his legal right should be clipped (and hence my support of Dawes); but it is to offer a critique of his personal judgment about submitting the cartoon to Dawes in the first place. He should have probed his own motivations much more deeply.

The greater moral here is that cherishing our freedoms in a new democracy need not imply a boisterous assertion of each right on every available occasion. Why offend just because you are entitled to?

In the end, therefore, the newspaper was right to not mess with the cartoonist's legal entitlement to express himself freely. But our beloved cartoonist, in his turn, was ethically hasty in choosing to exercise his right to lampoon just because he can. Or because the brute, masculine demonstration of a right seems to have become his sole mark of exhibiting artistic and intellectual freedom.

Self-censorship is boring but sometimes appropriate and certainly not necessarily a sign of the erosion of our freedoms. Even John Stuart Mill would have agreed with me.