Mr. Marshall has responded to my previous post, and I will address the issues he raises in his new polemic:

“Everyone Annoy Muslims Day” is almost over, and what has been accomplished?

Well, Pakistan has shut down much of the internet, including Facebook and YouTube, costing those two American corporations thousands of dollars.

This is an argument from utility, and depends for its implied moral force on financial losses suffered by private corporations.

Is it unethical to engage in legally and morally acceptable public behavior if it causes a corporation to experience a reduction in profitability?

Am I ethically required to surrender my First Amendment rights to make sure that Facebook and YouTube are able to maintain the level of dividends they pay out to shareholders?

Wasn’t this to be about the ethics of drawing pictures of Mohammad? We seem to have veered off into utilitarian arguments here. Okay, let’s follow the path you’ve chosen to Facebook and YouTube costs.

Social network sites thrive on controversy. Anything that increases traffic increases page impressions and boosts ad rates. Thus, it is more likely that the EDMD event was a profitable venture for both companies.

Traffic is up, that is, except in Pakistan. The government’s decision to block its citizens from access to the those two portals is simply part and parcel of shari’ah law. Fortunately, we don’t live under those strictures, so the two named social networks are very busy. So is Twitter.

There is good reason to doubt the facts as you present them.

The 100,000 or so members of the Facebook pages devoted to the event have been able to chuckle at the clever drawings by other members. Molly Norris, who learned the hard way that in the era of the World Wide Web, sophomoric humor can be dangerous because the sophomores will take it seriously and viral, is huddling somewhere, wondering if she is the logical identifiable target of whatever fury the event generates among jihadists.

This is an attempt to place blame for Ms. Norris’ possible execution on the heads of those who chose this experiment. The supporters of EDMD have once again provided Muslims with an opportunity to demonstrate their ability to live in modern culture. To assign the protesters responsibility for any threats against Ms. Norris is an example of displacement: the responsibility for their behavior lies with the jihadists, not with the cartoonists. To transfer that blame is itself “sophomoric”.

It is also dangerous in the extreme, indirectly encouraging the jihadists to act while excusing their behavior before the fact.

When she’s assassinated, I’m sure the “Deal with it!” crowd will all crow, “See? We weren’t intimidated! The First Amedment [sic] lives!”

One more example of mind-reading and loaded language. There is no way to know what the cartoonists will say or how they will react to the death of yet another innocent.

Sarcasm is the refuge of those who have no further points to make.

Jihadists are intimidating; that’s how they take control. But some principles are worth standing up for.

Of course, the vast majority of Muslims who revere their Prophet won’t see any of the drawings;…

This is arguably untrue, based on the Danish cartoons. A far higher proportion of Muslims in the Middle East saw the Danish cartoons than did American TV viewers and newspaper readers.

… those who do will simply conclude that Americans are crude and unfeeling scum,…

They concluded that a long time ago. The egregious violation of America’s diplomatic space in Tehran and the kidnapping of American citizens wasn’t done because they respect us. Islam has repeatedly made its mission clear: we will submit to it or we will die. We take Islam seriously.

And did you notice that Everybody Draw Mohammed Day is not confined to the United States? Have you seen the images or watched the videos made by Europeans, Canadians, and Australians?

The Counterjihad movement is broadly international.

… and a small percentage—the same percentage that threatened the “South Park” creators, will see who they can intimidate next. And they will be intimidated, “Everybody Disrespect Islam Day” notwithstanding.

Mind-reading again, this time of Muslims.

Oh—I forgot the most important thing. A lot of people who would never have the guts to stand their ground in a real showdown over Free Speech get to believe that they have done something heroic, though the message of their speech is little more than a playground taunt to that strange kid you don’t understand.

Does referring to those with whom you disagree as cowards serve the goal of meaningful dialogue?

Is it even ethical?

These aren’t “strange kids”. They are mujahideen, and they kill non-Muslims. They also kill fellow Muslims quite frequently. They use their children for weapons. They put bombs in their wives’ burqas and send them out to die.

The ethicist Dr. Gary Hull has researched this issue in far more depth than you appear to have done, at least based on your arguments.

In an appeal to authority, I cite Dr. Hull’s thorough research and his conclusion that free speech is at risk when Islam is involved.

On the page “Murder, Mayhem and Self-Censorship”, Dr. Hull cites incidents from 1955 to the present day in which individuals, institutions, and businesses were injured, killed, intimidated, or shut down by the terrorists simply because of images or words.

An example: in 1988, Salman Rushdie published The Satanic Verses. For the next five years, people who translated the book (in countries ranging from Japan to Norway) were attacked and either killed or severely injured. Bookstores were threatened with destruction if they carried the book. In Turkey, 37 Muslims were slaughtered in an attempt to kill one of the translators.

Ridicule is a time-honored tradition in Western culture. Muslims who have assimilated here understand that. So do Christians who see their own icons mocked all the time. Radical Islam doesn’t do irony, but if it is to survive, it will have to learn.

Who won? Nobody, of course. If ever Shakespeare’s words—”sound and fury; signifying nothing”—applied, this is it.

This is a matter of judgment, but that’s fine with me. Everybody’s entitled to his opinion.

And lost? Civility. Fairness. Consideration.

Let’s tackle these three terms seriatim:

Civility

I define “civility” to mean “polite public behavior which avoids violence, insults, and the unwarranted giving of offense.”

Leaving aside the offense felt by Muslims — the giving of which I have argued elsewhere is more than warranted — who else engages in uncivil behavior in this discourse? What is civil about describing your debating opponent and those who agree with him as a “mob”?

Who is being civil (or ethical, for that matter) when he describes the speech of someone with whom he disagrees as “little more than a playground taunt”?

What civility is fostered by calling the behavior of your ideological opponents “self-important grandstanding”?

Whose civility is in question when the spontaneous and peaceful heartfelt protests of thousands of concerned citizens are dismissed as “manufacturing a fake demonstration”?

How civil is it to call your opponent a coward?

Who’s civil now?

Fairness

To tackle fairness, let’s consider a single incident of staggering unfairness which just happened to land on my desk this morning during Everybody Draw Mohammed Day. It concerns a Swedish citizen who is being prosecuted for publicly reporting, in carefully correct detail, the events surrounding the consummation of the marriage of Mohammed to his child bride Aisha when the former was fifty-three and the latter was nine years old.

For this “incitement against an ethnic group” — that is, for telling the exact truth about what is recorded in Islamic scripture and believed by more than a billion observant Muslims — the accused may have to pay a large fine and spend time in jail. For quoting the hadith.

A non-Muslim quoting accepted Islamic scripture offends Muslims, and is therefore a criminal in Sweden.

Tell me, what’s fair about that?

This is not an isolated incident. Our blog and all the other Counterjihad blogs have archives crammed with stories like this, abominations of justice which occur virtually every day.

This is why we draw Mohammed: to protest the grotesque unfairness that is being forcibly imposed upon us by our treacherous governments across the length and breadth of the Western world.

Don’t talk to me about “fairness”.

Consideration

I assume by “consideration” that you mean “consideration for the feelings of Muslims”.

My response consists of two words: “reciprocity” and “hypocrisy”.

Where is the reciprocity? There is no consideration whatsoever in the Muslim world for the feelings of Christians, Jews, or Hindus. Just take a look in the pages of any Arabic-language newspaper in the Middle East, and see how Jews are depicted in the editorial cartoons, every single day. When Palestinian terrorists occupied the Church of the Nativity in 2002, they stole everything of value and ripped up the Bibles to use the pages as toilet paper.

And their feelings are hurt by a few cartoons?

Considering that for the last thirty years or so progressives have watched without complaint — and even applauded — “transgressive” art that immerses crucifixes in urine or smears statues of the Virgin with dung, this is rank hypocrisy. Plays and movies that depict Jesus as a transvestite or a homosexual or even a vampire are not only tolerated, they receive favorable reviews in mainstream periodicals.

And now, out of consideration for the feelings of Muslims, we are being asked to refrain from drawing Mohammed as a Roundabout Dog?

This sort of inconsistency gives new meaning to the word “hypocrisy”.

“Everyone Annoy Muslims Day” is almost over, and what has been accomplished?

Well, Pakistan has shut down much of the internet, including Facebook and YouTube, costing those two American corporations thousands of dollars. The 100,000 or so members of the Facebook pages devoted to the event have been able to chuckle at the clever drawings by other members. Molly Norris, who learned the hard way that in the era of the World Wide Web, sophomoric humor can be dangerous because the sophomores will take it seriously and viral, is huddling somewhere, wondering if she is the logical identifiable target of whatever fury the event generates among jihadists. When she’s assassinated, I’m sure the “Deal with it!” crowd will all crow, “See? We weren’t intimidated! The First Amedment lives!”

Of course, the vast majority of Muslims who revere their Prophet won’t see any of the drawings; those who do will simply conclude that Americans are crude and unfeeling scum, and a small percentage—the same percentage that threatened the “South Park” creators, will see who they can intimidate next. And they will be intimidated, “Everybody Disrespect Islam Day” notwithstanding.

Oh–I forgot the most important thing. A lot of people who would never have the guts to stand their ground in a real showdown over Free Speech get to believe that they have done something heroic, though the message of their speech is little more than a playground taunt to that strange kid you don’t understand.

Who won? Nobody, of course. If ever Shakespeare’s words—”sound and fury; signifying nothing”—applied, this is it.  And lost? Civility. Fairness. Consideration. And in places that don’t understand America (many of which are IN America), respect for the First Amendment, which was misused and trivialized today.

I’ll tackle some of Mr. Marshall’s assertions in detail, but first we need to define our terms.

I’m totally ignorant concerning the discipline of the ethicist, but I have extensive experience in logic and mathematics. In those two disciplines one must clearly state one’s premises — which may be postulates that are considered true without the necessity of proof, or theorems that are logically derived from postulates and previous theorems (which can be cited as required). A process of syllogism or symbolic demonstration is applied to these premises to produce a new result, which may then be used as the premise of a future argument.

A number of undefined words in Mr. Marshall’s response carry emotionally charged meanings. I won’t tackle all of them here, but the most prominent example needs to be addressed.

Wrong. Something unethical is undoubtedly wrong. But what does “wrong” mean?

Everybody knows what it means — “doing something bad or immoral or unethical.” Whoops: circular logic here. But circular logic is virtually unavoidable in this case. A definition of the word is merely a list of synonyms.

Even so, everybody knows what “wrong” means, in the same way they know what “love” and “duty” mean.

But how does an ethicist prove that any given behavior is “wrong”?

1.		Does he cite the words of the Bible or other scripture?
2.		Does he refer the reader to the Constitution ? Or the Magna Carta? Or maybe Danmarks Riges Grundlov?
3.		Does he put the matter to a federal judge?
4.		How about a majority vote? If more than fifty percent of the population considers an act “wrong”, is it in fact wrong?

I happen to believe that state-sanctioned marriage of persons of the same sex is wrong. Of the above criteria, #1 supports my judgment. The latest opinion polls, at least in the United States, show that #4 also makes my case. #2 is generally silent on the issue, and in most cases #3 seems to go against me.

So who is “wrong” in this case?

Thus the word is incoherent in context, even when used here by a professional ethicist to discredit my statements:

Baron’s explanation of the rationale behind the event is eloquent, logical, historically correct — and still dead wrong in its conclusions. [emphasis added]

Mr. Marshall: don’t just tell our readers that I am wrong. Demonstrate it.

And so he does, going on to make further assertions. But how well-supported are these? How many emotionally charged terms are defined? And are his arguments free of logical fallacy?

Let’s take a look.

“Everybody Draw Muhammad Day” is self-important grandstanding, and nothing else.

Begging the Question is a common fallacy in which the premises include the claim that the conclusion is true or (directly or indirectly) assume that the conclusion is true. This sort of “reasoning” typically has the following form:

• Premises in which the truth of the conclusion is claimed or the truth of the conclusion is assumed (either directly or indirectly).
• Claim C (the conclusion) is true.
• This sort of “reasoning” is fallacious because simply assuming that the conclusion is true (directly or indirectly) in the premises does not constitute evidence for that conclusion. Obviously, simply assuming a claim is true does not serve as evidence for that claim. This is especially clear in particularly blatant cases: “X is true. The evidence for this claim is that X is true.”

I’m sure many of its supporters think otherwise, but it is an exercise that does harm without doing anything productive to counterbalance the harm, a good definition of unethical conduct.

The first assertion includes the fallacy of mind-reading: it presumes to know the motivations of others without offering any evidence. But we’ll put that aside for the moment.

What is the proof for the second assertion?

Here are some contrary assertions, which are at least as plausible, and easier to demonstrate:

• It does good if it alerts people to the shutting down of free speech.
• It does good if it permits people to respond to the attacks on free speech by the well-known and useful device of ridicule.

Jonathan Swift’s “A Modest Proposal” worked its “good” by bringing to public awareness the plight of those starving in the Irish famine.

Everybody Draw Mohammed Day serves the common good in the same way.

Free speech will not disappear suddenly by edict; it will be eroded when good people say nothing.

Ridicule and satire are time-honored devices for pointing out knotty problems.

I was shocked at the cowardice of Comedy Central, as well as its hypocrisy. Here was the edgy, fearless, speak-truth-to-power-with-a smile cable channel refusing to defend the Constitutional principles that make its existence possible. It was afraid. Well, tough. That’s part of your job if you are going to operate on the edge of convention. Comedy Central was following in the chicken-footsteps of most American newspapers, which similarly refused to show the Danish cartoons, falsely claiming that it wasn’t necessary to do so to report the story. Our beef is with them, not the Nation of Islam. A useful demonstration would have been to pressure Comedy Central to show the entire, uncut, South Park episode. I believe that still should be done.

Instead, “Everybody Draw Muhammad Day” is occurring under the dubious logic that it bolsters the First Amendment and shows that American won’t be intimidated.

Explain to our readers why the logic behind EDMD is more “dubious” than that of “pressur[ing] Comedy Central to show the entire, uncut, South Park episode”. Why, precisely, is the logic of one more “dubious” than the other?

“Dubious” is another one of those pesky undefined terms. Please define “dubious” in this context.

One definition of dubious is “of doubtful provenance or veracity.” Who doubted the provenance or veracity of the logic of Everybody Draw Mohammed Day? Under what premises? Are you able to give citations?

There are many thousands of people who disagree with your assertion, and many of those employ lucid and cogent logical arguments to support their case. Which of those are “dubious”? Can you cite any specific examples, and outline your logical case against them?

Referring to my assertion of what EDMD means to its supporters as an expression of the unalienable right to free speech, Mr. Marshall says:

It doesn’t say that [“This is our right, and it cannot be taken away from us!”] at all. It says: “We are really brave in exercising our rights when we have hundreds of allies around us doing the same thing. Our mobs are not afraid of your mobs.” Big deal.

That’s what it says to you, Mr. Marshall. But other people experience it differently.

And not all of the “Draw Mohammed” people are protected by a “mob”. Lars Vilks has no “mob”; he stands all but unprotected against whatever his enemies choose to throw at him. Kurt Westergaard is protected by an expensive security detail provided by the Danish government. Do you consider that a “mob”?

I consider the word “mob” to be a loaded term. It is applied indiscriminately to those with whom the writer disagrees. Progressives regularly use the word “mob” to denigrate and demonize conservatives and tea party attendees. It serves to wrap their opponents in a blanket of disapproval which smothers what they have to say and discounts all the valid points they raise.

The use of the word “mob” by a New York Times editorialist is understandable — but by an ethicist? How does the use of such loaded terminology enhance the discourse or promote understanding between conflicting groups?

“Let’s Gratuitously Insult All Muslims Day” won’t change a thing when corporate suits and newspaper publishers get cold feet in the face of some jihadist threat.

This is almost certainly true. But why does that make it unethical?

Are the ethics of an action decided by its predicted utility or its success in practice?

Does this mean that the 1917 Bolshevik Revolution was ethically valid, whereas the 1989 protest in Tiananmen Square was not?

Manufacturing a fake demonstration of First Amendment boldness won’t make the real guardians of our rights do their jobs.

Who decides the identity of the “real guardians of our rights” where free speech is concerned?

Who decides that the job done by these “real guardians of our rights” is adequate to the occasion?

If the various portals of public discourse are ignoring “their jobs,” then it is up to individuals to guard their rights.

The genesis of EDMD wasn’t “manufactured”. That’s old thinking. It was an off-hand (and now regretted) post by a woman who was disgusted by the cave-in by Comedy Central. Her idea to “Draw Mohammed” went viral, despite her misgivings.

And that is the new thinking — that is, ideas go viral because of technological advances in communication. Thus, these “real guardians” have less say about what is permitted to be voiced. Unless, of course, you live in Pakistan, where the “real guardians” will simply close Facebook and YouTube.

The page objecting to the EDMD had more “friending” than did the Drawing page. So both sides of the argument are being aired.

What was in fact “manufactured” was the original Danish Mohammed cartoon crisis. A Danish imam named Abu Laban took the cartoons to the Middle East with the express purpose of rousing fellow Muslims to righteous fury. To make sure he achieved his objective, he added three extra cartoons that were much more incendiary than the original twelve. To make matters worse, some of them weren’t even intended to be images of Mohammed.

Now that’s a “manufactured” crisis.

And it won’t discourage the Muslim extremists from making the threats. The Danish cartoonist was challenging censorship in the Danish government… a brave, important and valuable act. Nobody’s trying to censor the U.S. cartoonists — unless a threat from a Muslim group makes them lose their nerve, as well as their dedication to free speech.

Nothing appears to discourage Muslim extremists. But that’s not sufficient argument to stay silent in the face of their insults and depredations. Western culture is worth fighting for.

The American cartoonists are as censored as reality can make them. A threat from a Muslim group should be taken seriously; we have many examples of murder and mayhem against Americans beginning in the 1980s and continuing today.

A threat from a Muslim group should be taken seriously by people in the public eye. Salman Rushdie, Theo Van Gogh, Ayaan Hirsi Ali, Geert Wilders, etc., can all testify to the expense of having to protect oneself against Islamic radicals.

Dr. Gary Hull is an ethicist at Duke University. When Yale University Press pulled the Mohammed images from a book about the Mohammed images, Dr. Hull courageously had them printed in a volume entitled Muhammad: The Banned Images.

Did you sign “The Statement of Principle, On Free Speech vs. Violence” which many others signed?

Is Yale University Press one of the “guardians”? What price did they pay for their sudden decision to pull the images?

Meanwhile, “Let’s Make Muslims Hate Americans More Than They Do Already Day” sticks a collective finger in the eye of peaceful, respectful Muslims who just want their religion to be respected on their terms and left alone.

This assertion contains several dubious premises.

The “collective finger in the eye” of Islam I will stipulate to. Yes, this is true, and that’s what EDMD was intended to do.

But where is your evidence that most adherents of Islam are “peaceful, respectful Muslims who just want their religion to be respected on their terms and left alone”?

What data can you cite?

Most Muslims are indeed “peaceful”, in the sense that they refrain from habitual violence and don’t become suicide bombers or jihad warriors. But if they are faithful Muslims, they must pay a specified portion of their wealth in zakat (Islamic alms) which is explicitly required to fund jihad as stipulated by Islamic law, backed up by the Koran and the hadith and corroborated by the highest religious authorities in Saudi Arabia and Al-Azhar University.

This means that faithful Muslims are “peaceful” in the same way Krupp’s investors were “peaceful” during World War Two: most of them never fired a shot against the enemy.

Furthermore, public opinion polls, including several carried out in Britain, indicate that a plurality of Muslims support the methods of Salafist terrorists, and a substantial majority support their stated goals.

The problem is much larger than who is “peaceful” and who isn’t. And huge threatening demonstrations against people who draw cartoons help focus the minds of Westerners against the growing danger to their freedoms and their well-being.

For those who resist the Jihad, whether or not most Muslims are “peaceful” is irrelevant. It’s a diversion from what should be our primary concern.

It’s too much to demand, but it is not too much to ask. Because we are indignant about Muslim thugs threatening our comedy shows, we choose to set out to insult all Muslims, saying “Deal with it!” Is this vengeance? That’s not ethical. Is it hurting people because we can? That’s not ethical either.

This is framed incorrectly. It’s another example of Begging the Question (see above). It asserts as a premise that we “choose to insult all Muslims”, from which the conclusion is derived in advance.

We have chosen to engage in a behavior which we realize may insult Muslims. But being insulted by a cartoon is their choice, not ours.

I submit that we are offering them a chance not to be insulted. We are giving them the opportunity to respect the freedom of non-Muslims, and thereby demonstrate that they are willing to conform to the norms of a civilized society.

If they choose not to practice such restraint and respect, then that is their choice, and we all lose something by their actions.

But we lose even more if we continue to demonstrate a cowardly submission in the face of threats, bullying, and intimidation.

If Comedy Central had shown a spine and followed through on its duty of citizenship, we wouldn’t be having “Let’s Spit On One of The World’s Great Religions Day,” would we? So every Muslim in the world has to put up with random Americans insulting their sacred icons because Comedy Central is gutless.

This is plainly incorrect. Comedy Central’s newfound spine would have had zero effect on Lars Vilks, or Kurt Westergaard, or Jussi Halla-aho, or Lionheart… Need I go on?

Non-Muslims in Western countries are being beaten, harassed, bullied, threatened, ostracized, and arrested every day for committing various offenses against the tender feelings of Muslims.

A sudden show of courage by Comedy Central will have no effect whatsoever on the plight of those who are currently being victimized by Islam.

What will have an effect is a mass grassroots initiative to reclaim the freedoms that are being trampled underfoot in the name of “cultural sensitivity”.

Which is exactly what is happening today. Today we take back our rights.

The price of liberty is eternal vigilance. We have renewed the vigil.

That’s not fair. That’s not ethical. That’s wrong.

Three undefined terms. This is too incoherent for me to address.

I stand with Lars Vilks, so I’ll just say this: “Draw the dog again!”

Public Square has been kind enough to ask me to counter Baron in the matter of “Everybody Draw Muhammad Day.”  My name is Jack Marshall, and I’m a professional ethicist, which means that I think about, write and teach how we determine what is right and wrong for a living.  I apply ethical analysis to everything under the sun on my own blog, Ethics Alarms.

Baron’s explanation of the rationale behind the event is eloquent, logical, historically correct—-and still dead wrong in its conclusions. “Everybody Draw Muhammad Day” is self-important grandstanding, and nothing else. I’m sure many of its supporters think otherwise, but it is an exercise that does harm without doing anything productive to counterbalance the harm, a good definition of unethical conduct. And it is aimed in the wrong direction.

I was shocked at the cowardice of Comedy Central, as well as its hypocrisy. Here was the edgy, fearless, speak-truth-to-power-with-a smile cable channel refusing to defend the Constitutional principles that make its existence possible. It was afraid. Well, tough. That’s part of your job if you are going to operate on the edge of convention. Comedy Central was following in the chicken-footsteps of most American newspapers, which similarly refused to show the Danish cartoons, falsely claiming that it wasn’t necessary to do so to report the story. Our beef is with them, not the Nation of Islam. A useful demonstration would have been to pressure Comedy Central to show the entire, uncut, South Park episode. I believe that still should be done.

Instead, “Everybody Draw Muhammad Day” is occurring under the dubious logic that it  bolsters the First  Amendment and shows that American won’t be intimidated.  Baron writes:

To draw Muhammed is to assert that one’s right to free speech is God-given and unalienable. It is not granted by the State nor permitted by law, but is inherent, and its suppression constitutes tyranny. Today is the day when everybody draws Muhammed. And when they do, they are saying, “This is our right, and it cannot be taken away from us!”

It doesn’t say that at all. It says: “We are really brave in exercising our rights when we have hundreds of allies around us doing the same thing. Our mobs are not afraid of your mobs.” Big deal.  “Let’s Gratuitously Insult All Muslims Day” won’t change a thing when corporate suits and newspaper publishers get cold feet in the face of some jihadist threat. Manufacturing a fake demonstration of First Amendment boldness won’t make the real guardians of our rights do their jobs.

And it won’t discourage the Muslim extremists from  making the threats. The Danish cartoonist was challenging censorship in the Danish government…a brave, important and valuable act. Nobody’s trying to censor the U.S. cartoonists—unless a threat from a Muslim group makes them lose their nerve, as well as their dedication to free speech.

Meanwhile, “Let’s Make Muslims Hate Americans More Than They Do Already Day” sticks a collective finger in the eye of peaceful, respectful Muslims who just want their religion to be respected on their terms and left alone. It’s too much to demand, but it is not too much to ask. Because we are indignant about Muslim thugs threatening our comedy shows, we choose to set out to insult all Muslims, saying “Deal with it!”  Is this vengeance? That’s not ethical. Is it hurting people because we can?  That’s not ethical either.

If Comedy Central had shown a spine and followed through on its duty of citizenship, we wouldn’t be having “Let’s Spit On One of The World’s Great Religions Day,” would we? So every Muslim in the world has to put up with random Americans insulting their sacred icons because Comedy Central is gutless. That’s not fair. That’s not ethical. That’s wrong.

Greetings to all the readers of Bloggerheads at Public Square.

The owners of this site have invited me to debate the ethical implications of what so many people will be doing today: drawing Mohammed.

Some of these drawings may be respectful of Allah’s messenger. Some will be neutral in content. Others will insult or mock Mohammed. But all are likely to offend Muslims.

As the Danish Mohammed cartoon crisis of 2005-2006 demonstrated, “insulting” images of Mohammed are used as an excuse for mass rioting and violence. Kurt Westergaard, the cartoonist who created the iconic “Turban Bomb” cartoon, was later the subject of at least two plots on his life.

Comedy Central’s recent suppression of South Park over material that mentioned Mohammed — which is what inspired the woman who initiated Everybody Draw Mohammed Day — brought the issue to the attention of the general public. In the weeks since the South Park kerfuffle, more incidents of “Muslim Cartoon Rage” have been featured in the news. Last week the Swedish artist Lars Vilks was physically attacked in Uppsala while giving a seminar on freedom of speech — illustrating his lecture with a video containing sexually provocative images involving Mohammed. A few days later his home in Skåne was vandalized and firebombed by two young Muslim men.

The case of Lars Vilks is an interesting one, because the Danish cartoon crisis prompted Mr. Vilks to find out how far he could go before Sweden’s regime of political correctness stifled him. He knew that he could be as “transgressive” as he liked with the sacred symbols of Christianity, or even Judaism. But it was obvious that the same tolerant rules would not extend to the mocking of Islam.

In the summer of 2007 he created a little test of the system: when invited to contribute images of animals for display in an art exhibit, he drew several free-form line drawings of a dog shape with a human-looking head that sported a beard and a turban. He titled his works, “Profeten som rondellhund” — “The Prophet as a Roundabout Dog”. A rondellhund is a Swedish folk custom, a statue of a dog made of wood or metal that is placed in the center of a roundabout or traffic circle.

Mr. Vilks was very careful in what he drew. The dog in the drawing did not represent a real dog, but a statue made of wood or metal. And as, he stated in the early interviews, the prophet whose visage adorned the rondellhund was non-specific: it was some prophet or other, but he declined to say which one.

As he expected, the committee in charge of the gallery hastily took down his drawings when they realized the potential problem. Mr. Vilks responded indignantly that there no longer seemed to be any right to free speech in Sweden. He proceeded to draw more roundabout dogs in various styles, and added a few other variations such as “The Prophet Visits a Gay Bar.” He took a picture of two lawn chairs and titled it “Two Prophets”. He drew a crude face on a shoe and labeled it a “prophet”.

His doings caused only a minor stir until a month later, when the editor of the local newspaper Nerikes Allehanda published the first mainstream media depiction of the Prophet as a Roundabout Dog. Then the trouble started in earnest: death threats, directed both at him and at the newspaper editor; condemnation by prominent political figures; outrage and demands for apologies from Muslim organizations. The brouhaha continued for months, and through it all the artist continued to draw more dogs.

The fuss gradually died down, and the issue lay dormant until early this year, when several Muslim terrorists — including the notorious American “Jihad Jane” — were arrested for plotting to kill Lars Vilks. His name returned to the newspaper headlines, and not just in Scandinavia, but all over the world. From the Muslim world came a rising drumbeat of calls for his death, matching in intensity the fatwas and threats against Kurt Westergaard. Unlike Mr. Westergaard, however, Mr. Vilks lacks any bodyguards or state protection at his home. His only defense against murderous intruders is an axe.

The case of Lars Vilks has demonstrated — as he fully intended from the very beginning — that there is no such thing as free speech in Sweden, if that speech offends Muslims. His drawings depicted neither Mohammed nor a dog, but the perception that they did assigned him a permanent descriptive label as “the Swedish artist who drew a cartoon of Mohammed as a dog”.

Reality played no part in what happened to Lars Vilks. Only perception mattered, especially what was perceived by Muslims.

*  *  *  *  *  *  *  *

Lars Vilks and the creators of South Park share something in common: they all set out deliberately to demonstrate that free speech does not apply to anything that might offend Muslims. They also proved that actual government censorship is not necessary: private foundations and media companies are eager to suppress anything that carries the possibility of causing offense to Muslims. When editors and publishers and producers and gallery owners see any work that involves Mohammed or Islam, they smell the burning cars in the street and hear the glass breaking their building lobbies. Nobody wants to lose his life or his career for the sake of creative principle, so almost everyone caves in and self-censors.

In the United States we have the First Amendment, which assures of us the right to create controversial and unpleasant material, even if it offends someone else. Most European countries don’t afford their citizens the same protections; many have laws against blasphemy and incitement to racial hatred that limit speech. The latter principle — in Sweden the crime is known as hets mot folkgrupp, “incitement against an ethnic group” — has been extended to cover religious belief, so that laws against racism are used to crack down on anyone who defames a religious group. Needless to say, the religion in question is invariably Islam — no one gets arrested in Europe or the United States for defecating on a crucifix or depicting the Virgin Mary as a bondage queen.

The remarkable thing, however, is that the force of law rarely needs to be applied in cases that cause offense to Islam. Internalized social controls do the job better than the police ever could. Schoolteachers, pastors, office managers, business owners, minor municipal bureaucrats, editors, bookshop managers — all play a part in making sure that Muslims are never, ever offended.

Theo Van Gogh was murdered in Amsterdam in 2004 for making a movie that insulted Muslims. He was the first martyr for the right to offend Islam, and there will undoubtedly be more. The list of artists and writers who have been harassed, threatened, intimidated, attacked, and prosecuted for offending Islam includes Lars Vilks, Trey Parker, Matt Stone, Gregorius Nekschot, Kurt Westergaard, Salman Rushdie, Jussi Halla-aho, Paul Ray, and others too numerous to mention.

Freedom of speech in is being eroded in Western countries, and it is being eroded selectively. Causing offense to Islam —  or even behavior that might lead to situations that offend Islam — is stamped out by social, political, and legal means. This is a result of creeping Islamization, and in Western Europe Islamization is no longer creeping, but has stood up and is starting to gallop.

This is why Everybody Draw Mohammed Day took off and spread virally at such an astonishing rate — it was an idea whose time had come. It was spread from computer to computer, from blog to blog, by ordinary people who were willing to do what famous and powerful people are unwilling to do: shake a fist at Muslim bullies and say, “Enough is enough!”

To draw Mohammed is to assert that one’s right to free speech is God-given and unalienable. It is not granted by the State nor permitted by law, but is inherent, and its suppression constitutes tyranny.

Today is the day when everybody draws Mohammed. And when they do, they are saying, “This is our right, and it cannot be taken away from us!”

Does this offend you? Very well, then — it offends you!

Deal with it.

I just wanted to add, that I agree with the proposal to allow district courts to control discovery and have early, issue-specific motions for summary judgment.

I don’t think plaintiffs should have to prove their case when they file.  But neither should they be empowered to drag out a meritless case.  To take Twombly as an example:  I think that the case should have survived a 12(b)(6) motion.  But I agree with Ms. Mitchell and Mr. Wallach that the district should have been empowered to limit discovery solely to the question of conspiracy.  Further, I think it appropriate for the district court to limit initial discovery so as to force plaintiff, especially in a claim the seems unlikely to win, to find evidence of conspiracy in a timely manner.

This proposal speaks to my general themes: lets not fix discovery by pleading reforms and lets have contextualized fixes aimed at where real harms exist as opposed to blanket pleading changes that may well do more more than good when applied to a whole host of cases.

We want to be clear that the burden of discovery is borne by a wide array of defendants, not just antitrust defendants.  We focused our previous discussion on the burdens of antitrust cases because that is what Twombly was addressing and Professor Mulligan said his arguments bore on both Twombly and Iqbal.  One case we just had was neither an antitrust case, nor a mass tort case, but the discovery extended over almost a decade and the burdens of discovery were extraordinary, only to have the jury acknowledge at the end that there was no merit to plaintiffs’ claims.  It is likely true that the discovery in a smaller cases is smaller, but defendants in smaller cases oftentimes have less means to pay for that discovery than the defendants in big litigation.  For an individual defendant, the cost of a half-dozen depositions can be ruinous, especially in the current economic climate.  It is not right to put a defendant, whether big or small, to the burden of discovery when plaintiff cannot plead actual facts which, if taken as true, show that he or she is entitled to relief.

 

 Additionally, discovery costs are not the only costs incurred in litigation.  Once a complaint proceeds beyond the pleading stage, the next exit for defendant is summary judgment.  That alone can be a very expensive production, requiring the amassing of declaration and evidence, as well as a carefully crafted brief.  Pre-trial preparations are even more costly for a defendant who foregoes summary judgment.  All of these matters and the uncertainties and costs they pose weigh on a defendant to settle a claim, meritorious or not, if it is not disposed of at the outset.  Oftentimes too, litigation can require pulling key decision makers and workers away from doing their daily duties to prepare for an participate in deposition and other court-related obligation.  Or in smaller claims, it can mean that the defendant has to miss work.  This too can take a toll on defendants.  All of these burdens and costs suggest that courts should be wary of liberalizing the pleading standard too readily.

 Although Professor Mulligan suggests that the discovery issue is raised in only a small number of cases, we believe the number of cases where a plaintiff with legitimate claims does not have access to sufficient facts to plead those claims is likely even smaller, if they exist at all.  Rather than letting all claims proceed through full-fledged discovery, it would be better to create an exception to Iqbal that allows a court to order limited discovery and the right to amend, under narrow circumstances.  If a plaintiff could show good cause why the key facts going to a particular element of a claim were under the sole control of defendant and inaccessible to plaintiff, then a limited right of discovery before amendment could be recognized.  Otherwise, the current Iqbal standard should control.  The benefit of such an approach is that discovery could be tailored to fleshing out whether plaintiff has a claim, rather than continuing the Conley practice of opening the floodgates to discovery on all subjects on the flimsiest of allegations.  

Drafting a narrow exception to Iqbal and Rule 8’s requirement that the plaintiff come forward with facts showing that the plaintiff is entitled to relief might well be an appropriate topic for amendment of the Federal Rules of Civil Procedure.  But no such amendment is necessary for the Supreme Court to interpret what the existing Rule 8 means.

As to my catch-22, Ms. Mitchell and Mr. Wallach would have plaintiffs proveall their facts prior to discovery.  But that is not our system.  One might well have defendants have all their facts proved for affirmative defenses before they list them in the answer. But we don’t do that either.

I do not advocate meritless suits.  Rather I am noting that many claims require plaintiffs to prove information to which they cannot gain access until they get to discovery.  Hence making them plead such facts is a catch-22.  This is not saying such facts do not exist, rather it is saying they are not in possession of the plaintiff at the time of filing the answer.  If we put pressure to prove all facts before filing a complaint, the effects could be unappealing.  To name just one for example, this scheme would push plaintiffs to hire teams of private investigators, outside the supervision of the court, to gather information in order to justify allegation.  

I am signing off.  It’s been a pleasure. My thanks to Ms. Mitchell, Mr. Wallach, and the folks at PublicSquare.net.

Ms. Mitchell and Mr. Wallach first note that Twombly and Iqbal do not change the text of Rule 8(a)(2) but offer an interpretation of it.  I agree, of course.  I did not intend to imply that Twobly/Iqbal created a formal amendment to the text of the rule itself.  But, as they surely agree, it is a substantial reinterpretation, such that the standard employed in district courts now is very different than what was applied 2 years ago.  Lest we would not be typing here today.   My point regarding amendments, was not that the Court amended the text of Rule 8.  Rather, my point is: If we are concerned about pleading rules because discovery in certain types of cases is too expensive, then amendment is a better course conduct.  Of course, the Court can interpret Rule 8 however it wants.  But should it do so in the context of a case in which all the relevant factual issues we have been talking about are not part of the record of the case at issue?  That is my question.  I think it should not. Finally, amending the rules would not be litigation creating.  There is not a tidal wave of litigation over what fraud means in the context of Rule 9(b).  Similarly, I would doubt there would be litigation over what a claim under the Sherman Act means.

I agree that discovery costs hit defendants in this context more than plaintiffs.  But my point was only that these costs are not a one-way street and that if discovery is to cost $7 million dollars, even sharing 1/7 of that cost is significant, especially given the payment structure for plaintiffs’ attorneys.  This remains a financial disincentive for plaintiffs to engage in discovery in a meritless case.

Ms. Mitchell and Mr. Wallach argue that Conley in essence read “showing that the pleader is entitled to relief” out of Rule 8(a)(2).  I think that position in error.  Any number of 12(b)(6) motions can be, and are with great frequency, under the Conley interpretation of Rule 8, arguing that the complaint fails as a matter of law.  For example, defendant can move under 12(b)(6) because the statute sued upon does not create a cause of action for plaintiff, Pegram v. Herdrich, 530 U.S. 211, 217 (2000) (affirming 12(b)(6) dismissal of ERISA claim because a breach of fiduciary duty cause of action did not arise against defendant under the statute) , or based upon the facts as stated in the complaint defendant necessarily prevails upon an affirmative defense, Jones v. Bock  549 U.S. 199, 215 (2007) (“A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim.”). Unfortunately, the Administrative Office of the United States Court does not provide a more detailed breakdown of case terminations (see here) so we cannot know how many claims were dismissed on 12(b)(6) pre-Trombly, but the numbers of dismissals before the pre-trial stage exceeds 50%.   Conley, then, did not commit the interpretation sin of rendering a portion of Rule 8(a)(2) a nullity, as Ms. Mitchell and Mr. Wallach suggest.  See Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985) (“the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative”).  Rather Conley (properly in my view) limited the “entitled to relief” language to legal challenges against the complaint that do not address the veracity of the allegations.  In fact, if one adopts Ms. Mitchell and Mr. Wallach’s interpretation of Rule 8(a), then Rule 9(b) is rendered a nullity—as there is nothing more to add in such claims that is not already required under their interpretation of Rule 8(a).  See Ricci v. DeStefano ,129 S.Ct. 2658, 2674 (2009) (“We must interpret the statute to give effect to both provisions where possible.”).  I think their reading of Rule 8(a)(2), not only contrary to 50 years of practice, but a strained interpretation of the Rules read as a whole.

Professor Mulligan’s characterization of Iqbal as an “amendment” to  Rule 8 misses the mark.  Iqbal did not “amend” Rule 8 any more than Conley did.  Rather, Iqbal interpreted Rule 8.  And it  is unquestionably the role of the Supreme Court to definitively interpret the Federal Rules of Civil Procedure.  Rule 8 does not call for pure notice pleading.  It requires not only a “short plain statement of the claim,” but also sufficient detail in this statement to “show[] that the pleader is entitled to relief.”  Conley’s construction of Rule 8 rendered this latter requirement virtually meaningless.  Iqbal corrects this error.  The Iqbal standard does not represent a return to the pleadings standards that prevailed before the pleadings standards that prevailed prior to 1937.  Unfortunately, however, a careful survey of pre-1937 pleadings standards cannot be accomplished in this format. 

Requiring plaintiffs to show a reasonable basis for believing that they may have a legitimate claim does not create a Catch-22.  It is simply not true that plaintiffs can discover whether such a basis exists only through discovery.  Taking Professor Mulligan’s example of a Title VII discrimination suit, if employees are discharged but have no grounds to plausibly believe that the discharge was driven by discriminatory motive, then they should not file lawsuits.  The mere fact that a person is fired should not be sufficient, without more, to set a lawsuit in motion.  On the other hand, if employees have a reasonable basis to believe that their discharge was the result of discrimination, they should allege the specific facts which lead them to that conclusion and they should have no trouble satisfying Rule 8.

Professor Mulligan is undoubtedly correct that plaintiffs incur costs in conducting discovery.  But that does not mean that the burden on plaintiffs and defendants is anywhere near symmetrical.  Plaintiffs will usually have fewer witnesses subject to deposition, especially where an individual sues a business.  While plaintiffs still must pay for attorney time in taking the deposition of a defense witness, defendants must pay both for the time of the attorney and the witness’s time.  Further, plaintiffs incur virtually no costs in demanding that defendants sift through thousands—and oftentimes millions—of documents to respond to requests for production.  It is simply beyond question that baseless lawsuits are often settled to avoid the costs of discovery.  

Professor Mulligan suggests that the a stratified system may be worth considering under which different types of cases are subjected to different pleading standards.  However, as Professor Mulligan acknowledges, such a system can be accomplished only by an amendment to the rules.  Therefore the issue goes beyond whether Iqbal is a proper interpretation of the existing rules.  Further, such a system would be accompanied by its own set of complications, inviting litigation over precisely what type of case a given complaint presents and whether it must clear the low or high hurdle.