Free Speech, Context, and Visibility: Protesting Racist Ads

On Tuesday, Egyptian-American activist Mona Eltahawy was arrested for “criminal mischief” – or “the willful damaging of property” – when she responded to disturbingly racist ads that were posted in the New York City subway system with spray paint. Her act of political resistance went beyond spray paint however. In some ways, it was intentionally designed to get the attention of the internet. When she encountered resistance from a person defending the ads – who clearly knew Mona and kept responding to her by name – Eltahawy chose to create a challenge over her right to engage in what she called “freedom of expression.” This altercation escalates as the two argue on camera over whether or not Eltahawy is violating free speech or “making an expression on free speech.” (The video can be seen here.) As this encounter unfolds, Eltahawy regularly turns to the video and speaks to “the internet,” indicating that she knew full well that this video would be made available online. In constructing her audience, Eltahawy also switches between talking to Americans (“see this America”) and to a broader international public, presumably of people who are angry at the perceived hypocrisy of how America constructs free speech in light of the video mocking Islam’s prophet that sparked riots around the globe.

As I watch this video and try to untangle the dynamics going on, I can’t help but reflect on the cultural collision course underway as the notion of “free speech” gets decontextualized in light of heightened visibility. But before I get there, I need to offer some more context.

Free Speech in the United States

In the United States, the First Amendment to the Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This is the foundation of the “free speech” clause that is one of the most unique aspects of American political life. It means that people have the right to speak their mind, even if their speech is unpopular, blasphemous, or critical.

Over the last 200+ years, there have been interesting cases that pit free speech against other issues that result in what may be perceived to be special carve-outs. For example, “hate speech” is not protected under civil rights clauses when it constitutes a form of harassment. Child pornography is not considered free speech but, rather, photographic evidence of a crime against a child. And speech that incites violence is not considered free speech if it serves to create an imminent threat of violence. (Of course, the edge cases on this are often dicey.) But content that depicts many things that are deemed offensive – including grotesque imagery, obscene pornography, and extreme violence – is often protected by free speech, even if public display of it is limited.

Of course, what taketh also giveth. Many European countries have begun banning women from wearing the hijab, seeing it as an oppressive dress. In the United States, the same first amendment that permits racist and blasphemous content also protects Muslim women in their choice of clothing. Even when people are racist shits, Muslims have a tremendous amount of freedom afforded to them because of US laws that forbid discrimination on the basis of religion. Does that make it easy to be Muslim in the US? No. But being Muslim in the US is a hell of a lot more protected than being Jewish in any Arab state.

As offensive (and, frankly, dreadfully awful) as the pseudo-pornographic film “Innocence of Muslims” is, it’s protected under free speech in the United States. This is not the first film to depict religious figures in problematic ways, nor will it be the last. As The Onion satirically reminds us, there are plenty of sexualized images out there depicting religious figures in all sorts of upsetting ways.

Yet, this video spread far beyond the walls of the United States, into other regions where the very notion of “free speech” is absent. Many Muslims were outraged at the idea that their prophet might be depicted in such an offensive manner and some took to the streets in anger. Some interpreted the video as hateful and couldn’t understand why such content would ever be allowed. Meanwhile, many Americans failed to understand why such a video would be uniquely provocative in Muslim communities. On more than one occasion, I heard Americans ask questions like: Why should it be illegal to represent a religious figure in a negative light when it’s so common in Muslim societies to be so hateful to people of other religions? Or to be hateful towards women or LGBT people? Or to depict women in negative ways? Needless to say, all of this rests on a fundamental moral disconnect around what values can and should shape a society.

Meanwhile, in the United States, a lawsuit was moving through the courts concerning a deeply racist advertisement that “The American Freedom Defense Initiative” wanted to pay to have displayed by New York City’s subway system (MTA). The MTA went to the courts in an effort to block the advertisement which implicitly linked Muslims to savages. The MTA lost their court battle when a judge argued that this racist ad was protected speech, thereby forcing the MTA to accept and post the advertisements. Begrudgingly, they did. And this is where we get to Mona.

While posting racist images is covered under free speech law, not just any act is covered under the freedom of expression. When Eltahawy chose to express her dissent by spray painting the ads, she did commit a crime, just as anyone who graffitis any public property is committing a crime. Freedom of speech does not permit anyone to damage property and, as horrid as those ads are, they were the property of the MTA. Unfortunately for Eltahawy, her act is also not non-violent protest because she committed a crime. [Update: Eltahawy uses non-violent protest as her justification to the police officers for why she should not be arrested. I’m not suggesting that her act was violent, but rather, that she can’t claim that she’s simply engaged in non-violent protest and assume that this overrides the illegal nature of her actions. If she knows her actions are illegal, she can claim she’s engaged in civil disobedience, but civil disobedience and non-violent protest are not synonymous.] Had she chosen to stand in front of the ad and said whatever was on her mind, she would’ve been fully within her rights (provided that it did not escalate to “disturbing the peace”). Now, we might not like that vandalism is a crime – and we might recognize that most graffiti these days goes unpunished – but the fact is that spray painting public property is unquestionably illegal.

Of course, the whole thing reaches a new level of disgusting today when Pamela Hall – the anti-Islam activist behind “Stop the Islamization of America” – sues Eltahawy for damage to _her_ property. While I don’t believe that Eltahawy was in the right when she vandalized MTA property, the video makes it very clear that Hall actively provokes Eltahawy and because of Hall’s aggressions, Hall’s property is damaged. I hope that the courts throw this one out entirely.

Making Protests Visible

By circulating the video of Eltahawy getting arrested, activists are asking viewers to have sympathy with Eltahawy. In some ways, this isn’t hard. That poster is disgusting and I’m embarrassed by it. But her choice to consistently exclaim that she’s engaged in freedom of expression and non-violent protest is misleading and inaccurate. What she did, whether she knew it or not, was illegal and not within the dominion of either free speech or non-violent protest. Interestingly, her aggressive interlocutor accepts her frame and just keeps trying to negate it by saying that she’s “violating free speech.” This too is inaccurate. Free speech is not the issue at play in the altercation between Eltahawy and Hall or when Eltahawy vandalizes the poster. Free speech only matters in that that stupid poster was posted in the first place.

The legal details of this will get worked out in the court, but I’m bothered by the way in which the circulation of this video and the discussion around it polarizes the conversation without shedding light on the murky realities of how free speech operates of what is and is not free speech and of what is and is not illegal in the United States when it comes to protesting. Let me be clear: I think that we should all be protesting those racist ads. And I’m fully aware that some acts of protest can and must blur the lines between what is legal and illegal because law enforcement regularly suppresses protester’s rights and arrests people in oppressive ways that undermine important acts of resistance. And I also realize that one of the reasons that activists engage in acts that get them arrested because, when they do, news media covers it and bringing attention to an issue is often a desired end-goal by many activists. But what concerns me is that there’s a huge international disconnect brewing over American free speech and our failure to publicly untangle these issues undermines any effort to promote its value.

I’m deeply committed to the value of free speech. I understand its costs and I despise when it’s used as a tool to degrade and demean people or groups. I hate when it’s used to justify unhealthy behavior or reinforce norms that disgust me. But I tolerate these things because I believe that it’s one of the most critical tools of freedom. I firmly believe that censoring speech erodes a society more than allowing icky speech does. I also firmly believe that efforts to hamper free speech do a greater disservice to oppressed people than permitting disgusting speech. It’s a trade-off and it’s a trade-off that I accept. Yet, it’s also a trade-off that cannot be taken for granted, especially in a global society.

Through the internet, content spreads across boundaries and cultural contexts. It’s sooo easy to take things out of context or not understand the context in which they are produced or disseminated. Or why they are tolerated. Contexts collapse and people get upset because their local norms and rules don’t seem to apply when things slip over the borders and can’t be controlled. Thus, we see a serious battle brewing over who controls the internet. What norms? What laws? What cultural contexts? Settling this is really bloody hard because many of the issues at stake are so deeply conflicting as to appear to be irresolvable.

I genuinely don’t know what’s going to happen to freedom of speech as we enter into a networked world, but I suspect it’s going to spark many more ugly confrontations. Rather, it’s not the freedom of speech itself that will, but the visibility of the resultant expressions, good, bad, and ugly. For this reason, I think that we need to start having a serious conversation about what freedom of speech means in a networked world where jurisdictions blur, norms collide, and contexts collapse. This isn’t going to be worked out by enacting global laws nor is it going to be easily solved through technology. This is, above all else, a social issue that has scaled to new levels, creating serious socio-cultural governance questions. How do we understand the boundaries and freedoms of expression in a networked world?

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27 thoughts on “Free Speech, Context, and Visibility: Protesting Racist Ads

  1. Azza Sedky

    The world has become so small, so small that a word said across oceans resonates in the far end of the earth. For how long can we all live believing that we should enforce our ways on others? For how long can every race believe that it knows best?
    Well, the bottom line is that the whole world cannot go by what one group thinks is right. We need to be more understanding of one another. We in the West have standards, but it is difficult to apply on other ethnic groups.
    As much as I agree with you that free speech is valuable, but in a world full of hatred and scorn, it may be very difficult to apply.
    Read “Shame”, which elaborates on this point

  2. Rich

    Great post, but the question remains, what is the proper response to this kind of hatred? There has to be a response to hate speech like this, and I wonder whether some sort of defacement might not be the appropriate answer. Imagine, for instance, that stickers were made up reading something like “Jews and Muslims are both people of the book” and pasted on each of the anti-Muslim posters. Legally, this would be no different from defacing the poster with spray paint–but then civil disobedience is rarely legal. Hate speech is protected by the first amendment; but hatred can never be ignored.

  3. Nathan

    What I am surprised by is the utter lack of liberal minded responses to these posters. Sit ins, protests along side the posters, buying space for counter posters ( the poster space costs $6000, trivial to raise when looking at the outrage it caused, instead apathetic denouncements though social media and Illiberal defacements are the result. Free speech won’t be curtailed though disgusting and unpopular acts like these subway ads but though an apathetic public that will turn to government to censor what it cares too little to protest against.

  4. gregorylent

    drama queens aside, there are different levels of consciousness on earth … spiral dynamics gives a good model for this .. much of what we call adherence to cultural values is simply the resistance to natural evolution … this is the decade for some major growing up on this planet, within all cultures, because no one knows how to live on a whole earth.

  5. dan b

    With limited exceptions, only the government can violate your right to free speech. The exceptions do not apply here. Thus the vandalism was not a violation of the racist speaker ‘s speech rights. It may not even be destruction of the speaker’s property is if, as you say, the paint damaged MTA’s property (looks like the poster is covered by plastic).
    The poster is vile but we all have the same right to pur chase the adjoining space to to counter the assertions implied and point out the small mindedness it demonstrates.

  6. aepxc

    The fact that both sides were trying to use “free speech” as justification for their actions is important. While it seems to have escaped consideration during the drafting of the First Amendment (probably due to absence of modern mass media at the time), speech can be used to drown out other speech. At the most basic level, if I can shout sufficiently louder than you can, I can create a situation where only my voice is heard. If I can shout just loudly enough so that neither of us is intelligible and follow you around wherever you go, I can make sure that you are never heard. More realistically, this is what spin, and PR, and lobbying, and unlimited money in politics is all trying to exploit. Protecting speech from the government is no longer sufficient. We must protect each of our abilities to speak from one another. Closer to the ‘one person, one vote’ principle, every physical human being should be afforded a roughly equal voice, and the right to use that voice without being immediately shouted down by anyone who disagrees (even if they are in the majority). Yes, this means having to tolerate voices that we find hateful, despicable, or blasphemous. But that is the price we must pay to avoid being silenced when it is our voices that someone else finds hateful, despicable, and blasphemous. It is the price we must pay to ensure that the status quo is always open to challenges and that no ‘truth’ is ever enshrined as inviolable. For bad ideas, light is the best disinfectant. For good ideas, light is the best source of nourishment.

    That Eltahawy was confused about what type of actions can be validly seen as ‘speech’ is unfortunate but, IMHO, not the most important consideration. The problem was that she was trying to silence speech with (what she thought was) speech. Protesting actions with speech can be done in any way desired. When protesting speech with speech, however, one must be very careful to make sure that one’s protests do not limit one’s opponents ability to disseminate his or her message. Anything else would have us acting as self-appointed censors.

  7. Stephanie Daugherty

    Ok. I’m going to call bullshit on one thing in this article. Nonviolence in the context of “nonviolent civil disobedience” means the absence of aggressive physical force meant to injure or intimidate others. Please don’t redefine “violence” to mean “things that are illegal”, these are entirely separate concepts, which may overlap or occur independently of one another.
    While always illegal, acts of vandalism could be either a violent act or a nonviolent one, depending on the particular act conducted and the circumstances surrounding it. There’s no attempt to create panic and disorder here, there’s no threat of violence, no intimidation, simply a rejection of a widely unpopular view. I have to conclude that while illegal, the woman’s actions in this case were nonviolent – a measured act of protest and defiance.

  8. aepxc

    Having thought about this some more, it also seems important to consider the other side of freedom of speech – the freedom of listening. Any instance of restricting freedom of speech requires someone to listen to the speaker and decide whether or not to allow other people to listen to said speaker as well. The question then becomes whether we wish to be able to decide for ourselves whether or not something is hateful and vile, or whether we would prefer to have it pre-decided for us by someone else. Of course, the third option is the mist hypocritical – we would prefer to be among those who make those determinations on behalf of others.

  9. Shelley Owen

    Congress shall make no law respecting an establishment of religion. There should be no references to any religion in government (publicly owned and operated) buildings, schools, or any other infrastructure such as MTA. The words “in god we trust” should not be on our currency, nor should god be referenced in our pledge of allegiance. This poster implicitly pits two opposing religious beliefs. I wouldn’t have argued about free speech in this case, instead I would argue that religious dogma does not belong in a public building or place. The incessant animosity among different religions is in fact – savage.

  10. zephoria Post author

    First, thank y’all for your interesting comments. A few responses:

    @Stephanie: You’re right that Mona’s actions are non-violent in the civil disobedience sense and, in reading what I wrote, I realize that I’m not being remotely clear in the point I was trying to make. In the video, Eltahawy uses “non-violent protest” as a justification to the cops for what she’s doing and is outraged when they continue to arrest her. She then asks the audience to see that what she’s doing is non-violent protest in order to position the cops as bad people for arresting her. Of course, to complicate matters, the police won’t say anything because they’re on camera which means we don’t get clarity there. But my point in bringing up the non-violent issue is not to say that what’s she’s doing is violent, but rather, what she’s doing is illegal and exclaiming that it’s simply non-violent is not enough to stop her from being arrested. But what I wrote is clearly not making that point. Sorry about that.

    @aepxc: I think that you’re definitely right both about the need to protect people from other people’s speech and the right to the freedom of listening. And I think that the question of having the right to decide for ourselves vs. an intermediary deciding for us is really what’s at stake. In many regions in the world, the idea of an intermediary deciding is perfectly acceptable, whether that intermediary is the government or a woman’s husband. Hell, even in the US, there’s a slippery slope happening where people believe that children’s parents should have the right to be that intermediary. Thank you for this. Very helpful.

    @Rich: I agree with you that it’s hard to find proper responses to hate. Personally, I really wish that Eltahawy would’ve activated her large network to show up, hand out messages like you’re talking about, and engage people about the problem with the ads. Part of what frustrates me about responding with defacement is that I’m not convinced that it does the cultural work that’s needed for people to understand how problematic these messages are. Fighting bigotry with vandalism doesn’t necessary change minds.

    @Shelley: The US constitution prohibits the government from creating any laws that prohibit the free exercise of religion. Conceptually, I agree with you that religious dogma doesn’t belong in public spaces, but the law protects the expression of religion in public spaces.

  11. Ellen

    Very interesting analysis. Article refers to Pamela Hall as the anti-Islam provocateur behind the posters. It is Pamela Geller As someone who rides the NYC subways, I am offended by the posters and their message of hatred and intolerance but am uneasy about Eltahawy’s methods. Yesterday I texted a $10 contribution to Rabbis for Human Rights to support their plan to put up posters strongly disagreeing with Pamela Geller’s abhorrent message.

  12. zephoria Post author

    @Ellen – Pamela Geller is the one behind the images themselves, but it seems from news reports that the person who confronts Eltahawy is Pamela Hall.

  13. Peter Sachs Collopy

    Thanks for your clarification on nonviolence and illegality here, danah. I just want to add to Stephanie’s critique that one reason this conflation is so upsetting is because it’s a conflation people in positions of power—particularly those who have the authority to command police—use to justify police violence against demonstrators. The police involved here clearly had a legal responsibility to arrest Eltahawy, but had they used excessive force I imagine someone in their chain of command would have justified it on the grounds she was being violent… and it’s important to the safety of demonstrators, not to mention our ability to communicate our message, that we not legitimate that claim. I’m thinking particularly here of Berkeley chancellor Robert Birgeneau’s statement that students linking arms were engaged in something that was “not non-violent civil disobedience,” when that’s precisely what it was, but there are many other parallel cases of this conflation being used to justify actual physical violence on the part of police. That said, thank you for carefully thinking through the issues involved here in all other regards.

  14. W_Smith

    Hi. Nice article which totally avoids the advertisement CONTENT. 1) This advertisement was in response to pro-jihad/radical action muslim advertisements. 2) The world is living through another historical chapter of a centuries old holy war which last surfaced as one of the Crusades. Please look at these contrived stories in context and understand “they” want you dead. This “incident” was designed to go on the internet and rile up the extremists. The only difference between the Crusades and now is that the USA has better tech and more money than the jihadists. This may not be the case in the near future now that Iran has back engineered a US drone. 3) Mona Eltahawy appears on CNN and MSNBC. She is probably paid for those appearances, which effectively means, she’s possibly and employee (ratings anyone?) 4) The “movie” context is a narrative ONLY given by the Obama administration, and even they have rescinded it. There is no “movie.” There’s an 11 minute-ish trailer. I challenge you to post a full feature film or indicate where it’s located. If you’re interested in talking about free speech, then put something more than this incident in your discussion. Defacing an advertisement isn’t a healthy example of the first amendment. How about discussing the NDAA, or other free speech killers where you will disappear into a jail with no lawyer and no phone calls for possibly an unlimited time period.

  15. Mike

    “Racist.” You keep using that word.

    Islam accepts adherents of all races, thus an anti-Islamic post can’t be “racist”. Indeed, given the careful choice of words in it, it’s rather hard to pick an appropriate -ism for it.

    As for the article’s message – with freedom of speech you also get freedom of propaganda. It’s still a fair trade off compared to countries that lack the former but show no shortage of the latter.

  16. zephoria Post author

    @Mike: The advertisement creates two categories of people: “civilized man” and “savages.” This is long-standing racist rhetoric used create the segments that we understand now as “races.” There is nothing innate about race; it is a social construct. And it is a social construct that differs around the globe such that the very categories that we use to impute race different tremendously in different locales. The language and framing of the ad is racist – and the ideology that it stems from is racist – regardless of how diverse those who embrace Islam are. Racism isn’t simply the product of targeting one coherent group of people based on their race; it’s an endemic form of prejudice that serves to segment and devalue people based on perceived cultural, ethnic, and religious differences.

  17. Andy schreiber

    I really liked your post. I am a strong beliver that there should be freedom of speech only limited in a few cases where this speech incites to do something ilegal like the cases that the American law explicitly separtes from the term free speech, like child pornography. Not only because in a free society and in an democracy it´s imperative that we speak our mind but also because its a “scape valve”. In a heterogenous society where many different cultures “collude” and there isnt this kinds of valves all this hatred would be express in other ways in other less democratic ways.

  18. Josh Stearns

    This is an excellent snapshot of a key moment where we are seeing clearly how the First Amendment, due to the forces you outline above, has become a contested terrain in the digital age. I want to address your last point, about the limits of policy and technology and the need to more debate and discussion about freedom of speech in a networked world. I couldn’t agree more and I’d love to help make this happen.

    For the last year I have been tracking journalist arrests at Occupy protests (roughly 90 so far –, which has raised a raft of issues around who is a journalist, what journalism is, and who gets to decide. Our policies and legal institutions have for the most part not adapted to this moment when anyone can “commit acts of journalism” and more of the journalists covering civil unrest are doing so as freelancers, independents or unaffiliated citizen reporters. When people ask me what the solution is, I’ve often said we have taken the First Amendment for granted for too long and need more open dialogue about these issues.

    I think you are spot on about the need for more awareness and conversation about these shifts. Let’s talk about how to start that.

  19. Shava Nerad

    Civil disobedience was never a reason not to be arrested — nonviolent protest has been used as a reason, but rarely heeded as such. There are an abundance of crimes that are not violent. Trespassing, loitering, creating a nuisance — many of which are so unconstitutionally vague they shouldn’t be allowed.

    But they are enough to allow anyone to be removed from the scene of contention, booked, FINGERPRINTED and identified as a felon often enough and removed from the voting roles — and then released on good behavior.

    This is how a proper democracy represses dissent without losing its human rights record. Just so you know — in case you haven’t been paying attention.

    I know because my dad worked with both the union movement and as night security for the Southern Christian Leadership Coalition marches of the civil rights movement for Dr. King and all. It left an impression on a young mind.

    There is a healthy tension between freedom and order, and I understand that — and I have worked most of my life to illuminate it. But many people in this country would rather it not even be discussed. Dirty laundry. We might lose faith in the system if the reasons we might have to lose faith in it were transparent (they might then be reformed…?).

    And it’s a tension that has been mending, I think, slowly over my lifetime — and citizen media helps.

    Engagement and speaking openly — and even wrongly — is important.

    What Mona does is more important than if she uses the right words for it. The people who disapprove of what she does can try to dismiss the content of her action by saying she didn’t understand the context because of her vocabulary.

    I don’t believe that.

  20. Ken_M

    With regards to the context event (Innocence of Muslims), the constitution only guarantees my right to free speech in this country and requires my tolerance of others whose speech is also protected. As you pointed out not all regions of the world connected by the internet have our first amendment rights and the tolerance it demands. So with regards to speech when expressed on the internet, what is/should be the governing principle? That same Constitution also grants the power to negotiate with foreign powers to the office of the President. One might argue that a public post visible to an entire nation constitutes a form of negotiation with that nation, so when the President ask Youtube to remove the video maybe it should have been considered more than a request. Does Youtube’s freedom of speech justification really apply when all the parties involved are not governed by our Constitution? Why do we think others not governed by our Constitution are burdened to be tolerant of our offensive speech? If not, then are those responsible for the offensive speech also responsible for its repercussions?

  21. Wonderer

    A few months ago anti-Israeli posters were posted on MTA property. None were defaced, and the media took very little notice of the whole thing.
    In this case, it seems to me that extremists on both sides relish the exposure. Maybe, instead of discussing the freedom-of-speech issue we should discuss the freedom-from-noise issue, and try to disregard this extremist noise from both sides? I bet our lives will be much better.

  22. Stuart Parsons

    To the many who comment here and apparently believe Islam is genuinely a religion of peace, I say please, please, please read the Quran, Sunnah and Sirah. I did and caame to the conclusion that Islam is a far, far greater, threat to the well-being of mankind than Fascism and Communism every were.

  23. MeLT

    I came across your blog only because I am interested in the concept of apophrenia. But I must say, I find the depth of moral and intellectual confusion in this post staggering. The ad is deeply racist? Racism is a form of prejudice, but not all prejudice is racism. The two are not interchangeable, contrary to your comment above. Of course, neither savagery nor jihadism have racial prediliction. Unless you still subscribe to 18th century colonialist rhetoric, savages are defined by their actions, and not by their genetics. You cannot call the ad anti-Muslim, or “Islamophobic” without claiming all Muslims are jihadists. Furthermore, you cannot even call the ad prejudiced unless you turn a blind eye to the thousands of brutal attacks on men, women and children committed worldwide every year in the name of jihad and sharia. All the moderate Muslims who are not protesting to reform their “religion of peace” are accomplices in the end. The problem with the ad is this: it focuses on just Israel and jihad, when Israel is only a small part of the conflict. The greater dialectic is between jihad, an imperialistic, totalitarian theology straight from the Middle Ages, and the modern, secular, democratic societies of the West. If you don’t see that, you deserve to be a dhimmi.

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