Charlie Hebdo and Drawing Lines

The tort system is something that I hadn't thought much about before I took a class in law and economics.  For those who aren't as familiar, tort law concerns the ability of an injured person to bring a lawsuit against the responsible party, both for recompense and in some cases for punitive damages.

Every first-year law student in the United States takes a class on torts.  The basic concept is so obvious that it barely needs to be stated:  if you make it expensive to cause harm to other people, then you will induce potential harm-doers to change their behavior so as to avoid harm.  A less obvious point, though, is that we sometimes decline to impose liability, not because the behavior is harmless, but because the injured party is in a better position to avoid the harm.  This is sometimes encapsulated in the term "lowest-cost avoider," that is, the person who can avoid the harm at the lowest overall cost.

Let's say a train has hit a person and injured him.  But he wasn't at a crosswalk or train station, he was walking along the tracks in the middle of nowhere.  Although the railroad has done him injury, we are inclined to say that it is really his negligence that has caused the harm.  (But note that this is a legal conclusion, not a statement of fact.  We don't derive these things out of thin air, we define them to accomplish social goals.)  We could theoretically require the railroad to take steps to ensure that their trains don't hit people in the middle of nowhere.  But that might require very expensive measures, such as running trains at a low speed even in the open country (making trains uncompetitive as a method of transportation).  Instead we simply deny recovery for people injured in these circumstances.  (It would be a different story if the railroad had some sort of culpability, for instance if it built its tracks along a pre-existing walking path.  It might also be a different story if the railroad could cheaply prevent people from walking along its tracks.)

So now we come to Charlie Hebdo and its treatment of Muslims.  One might ask:  does Charlie Hebdo bear any responsibility for reducing the harm that it causes when it publishes its cartoons?

As a legal matter, of course, our tradition is that free expression trumps the rights of other people (though of course, remember the Parades Commission and its restrictions on where Orangemen can march).

But in terms of social norms, I think things are more complicated.  We might ask people to express their ideas in the lowest-harm manner possible, or at least to take harm into account when expressing their ideas.  So for instance, imagine that Charlie Hebdo has submitted an ad to be posted in the Paris metro.  And imagine that the metro authorities have come to Charlie Hebdo and said, "Look, your poster is obviously well-intentioned, but by some freak accident it looks a lot like our emergency exit signs, and people who can't read French could be confused.  This could be very dangerous in an emergency situation.  Could you please consider submitting a different advertisement for us to post?"

As with the railroad example, we might ask how to allocate responsibility for the potential harm that might occur from Charlie Hebdo's means of expressing itself.  On the one hand, we might say that Charlie Hebdo is the lowest-cost avoider, because surely it can come up with advertisements that won't confuse people.  On the other hand, we might say that in a free society, it's always the responsibility of the reader to do the necessary work of understanding the poster and deriving its true intent (to advertise the publication, not to indicate an emergency exit).  People who misread Charlie Hebdo's expression shouldn't be heard to complain about the harm that it causes them.  They are like people walking alongside railroads:  they do so at their own risk.

I can respect this point of view.  But I have to ask:  doesn't the opposite point of view also have some merit?  After all, not everyone has the time or the capacity to delve into Charlie Hebdo's true intentions in posting the advertisement.  To a lot of people, it looks just like an emergency exit sign.  And if there is a fire or other emergency, people could incur a tremendous amount of harm if they can't find the real exits quickly.  Shouldn't Charlie Hebdo find another way to advertise itself?  Maybe it should be legally permitted to publish the advertisements, and even to compel the metro to post them.  But is it really moral for it to do so, knowing the potential harm that could be done?

And the same goes for the harm that comes, not from confusing people about the location of emergency exits, but rather from causing feelings of humiliation and degradation.  We don't ask comedians or essayists or cartoonists to minimize emotional harm when they do their work—we understand that this would basically eliminate their ability to express their ideas.  (We don't ask railroads to run their trains at 10 m.p.h., for essentially the same reason.)  But we do ask them to take emotional harm into account.  A comedian who uses the word "nigger" had better do so with sensitivity and discretion, or we will not hesitate to express our disapproval.  We don't ask black people to "get over it," we don't treat them like people who walk along railroad tracks.

Now I would be the first to say that reasonable people can disagree on where to draw the line.  PETA famously uses scantily-clad women in its animal-rights campaigns, not because objectifying women has anything to do with animal rights, but because the controversy inevitably attracts much more attention than the campaigns otherwise would.  I think a reasonable person could say that this approach is morally questionable (though, I repeat, legally protected).  We don't give PETA a free pass merely because its mode of expression helps it to reach a larger audience.

Or maybe we do.  Again, I'm not dogmatic about where to draw the line.  My point is just that there is a line, and that Charlie Hebdo at the very least flirted with that line.  Reasonable people can disagree about just how far over the line Charlie Hebdo may or may not have gone.  But I don't think it makes sense to say that Charlie Hebdo is automatically exempt from all such criticism, by virtue of its status as a non-racist publication (assuming that to be the case).  When Muslims face near-constant harassment, humiliation, and discrimination, I think it's fair to ask whether Charlie Hebdo really needed to pour salt in the wounds.  When you have the power to hurt people, you have the responsibility not just to avoid outright racism, but to be careful and thoughtful about how you deploy your power.