Don’t insult the Pope’s mother, or he’ll punch you in the face! In response to questioning about the Charlie Hebdo killings, the Pope stated: “If [you] say a curse word against my mother, [you] can expect a punch.” Not only does the Pope mischaracterize the Charlie Hebdo speech as consisting of naked insults, but well educated thinkers also have tried to paint the speech as “brazenly racist.” No matter how distasteful, such speech is clearly parody and is protected under U.S. law. Even if such speech was “brazenly racist,” U.S. law would still protect it under certain circumstances. French law should follow suit — if it already doesn’t.
In the Pope’s view, “[t]’s normal. You cannot provoke. You cannot insult the faith of others. You cannot make fun of the faith of others.” In a recent article by Oxford educated Mr. Mehdi Hasan entitled, As a Muslim, I’m fed up with the hypocrisy of free speech fundamentalists, he says: “[l]ampooning racism by reproducing brazenly racist imagery is a pretty dubious satirical tactic.” Not only that, but he thinks liberalism is hypocritical in that it, in his view, allows mockery of Muslims but not Jews: “Has your publication [The NewStatesmen], for example, run cartoons mocking the Holocaust? No.” Mr. David Brooks, a writer for The New York Times, chimed in, calling Charlie Hebdo’s speech “puerile” and “deliberately offensive humor” in I am not Charlie Hebdo.
Regardless if the Pope, Mr. Hasan, or Mr. Brooks are offended by or simply dislike Charlie Hebdo cartoons, such content would be parody under U.S. law. As stated by the Stanford Copyright and Fair Use Center, “[a] parody is a work that ridicules another, usually well-known work, by imitating it in a comic way . . . Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to ‘conjure up’ the original.” This means that the alleged fair use need not be “transformative” of the original work — either a physical transformation as was the case in the Barbara Kruger litigation, or application to a new efficient technological use as the book indexes in the recent Google book scanning case — when parody is involved. Similarly, under the First Amendment, parody is a protected form of speech under cases such as Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) regardless of the transformative nature of the speech.
Charlie Hebdo’s very existence is “broadly anti-religion and anti-establishment” and, as such, the publication has shot powerful parody bullets at Catholics, Muslims, Jews, and the French government. In fact, the Vatican has sued Charlie Hebdo 12 more times than Muslims. When viewed in light of the overall purpose of the paper to mock and challenge religion in general, none of the Charlie Hebdo cartoons are per se naked insults, an analogy to per se illegal price fixing restraints in antitrust law, of the Prophet. Instead, the cartoons are meant to ridicule the self-rightious nature of Islam, which often is characterized as not having a sense of humor. Similar humor can be found in movies like Mel Brook’s History of the World Part I, which pokes fun at Jesus and the last supper, both of which are sacred to Catholics. Notably missing from Mr. Hasan’s article — and Mr. David Brook’s — is mention of Arabs who stand in solidarity with Charlie Hebdo, as summarized in Arab Editorial Cartoonists Respond to “Charlie Hebdo.”Obviously, making fun of the Holocaust without an appurtenant message would be a naked insult, not a parody. Not an apt analogy by Mr. Hasan.
But let’s assume that Charlie Hebdo’s speech was “brazenly racist.” This does not necessarily mean it should be per se banned. In National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), the U.S. Supreme Court upheld the right of the National Socialist Party of America, otherwise known in the Blues Brothers movie as the “[t]he fucking [Illinois] Nazi party,” to obtain a permit to march through predominately Jewish Skokie Illinois. As an illustration of the alleged hypocrisy of the current liberal establishment, Mr. Hasan posits a hypo from an Oxford philosopher, “if a man had joined the ‘unity rally’ in Paris on 11 January ‘wearing a badge that said Je suis Chérif‘ – the first name of one of the Charlie Hebdo gunmen” he would have been murdered. Perhaps, but the Nazis in Skokie would likely have been stoned — or worse — if they tried to march without a license, which would have given them police protection. Under U.S. law, even though the man in Mr. Hasan’s hypo would have the right to voice his thoughts, such right would not be unfettered. He would have needed protection. Regardless, an offensive parody cartoon in a widely circulated newspaper has less of a propensity to directly incite violence than one individual entering a marching group and voicing his or her opposition speech in the face of others, which is why this hypo by Mr. Hasan’s Oxford philosopher isn’t relevant either.
The images in Charlie Hebdo aren’t defamatory, don’t falsely shout “fire” in a crowded room, or even insult the Pope’s mother. It is unfortunate that the Pope and his cohorts don’t heed the elementary school saying: “sticks and stones may hurt my bones, but words never will.” For them to think otherwise is to turn Western liberalism on its head.