To be or not to be Charlie: Should Larry Flint publish in Ciudad Juárez?

Juan Francisco Lobo

Juan Francisco Lobo

Academic Coordinator at MOOC Chile
Lawyer, Universidad de Chile. Professor, Legal Theory, Universidad Diego Portales. Professor, International Criminal Law, Universidad Adolfo Ibáñez.
Juan Francisco Lobo

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    The massacre perpetrated against the editors of Charlie Hebdo has been treated mainly as a freedom of speech issue. As it is the case with every human right, freedom of speech is subject to certain restrictions. According to international treaties on the subject, war propaganda is not acceptable, nor are expressions that amount to “hate speech”, that is, an incitement to racial, ethnic or religious hatred and to the commission of violent acts therefrom.

    However, any analysis of this case would be incomplete if – as has been the general trend – it lingered only on the unrestricted defense of freedom of speech. This is so because that right belongs to a wider canvas of guarantees named “human rights”. The right to freedom of speech is but one among many other rights in that catalog, in which few of them – such as the prohibition of torture – enjoy an absolute nature, the freedom of expression being excluded from that group.

    Indeed, besides the internal limit of the prohibition of hate speech, freedom of expression has external borders, for it must accommodate itself with the other rights with which it may collide, as it is usually the case with freedom of conscience.

    The aforementioned begs the question: Was this only a classic example of the collision of freedom of speech and freedom of conscience, or did the former also conflict with the right of Muslims not to be arbitrarily discriminated?

    The prohibition of arbitrary discrimination is meant to ban every distinction made against a person or group of people on the sole ground of a feature that cannot be changed or whose modification is not legitimate to demand, such as sex, race or religion (estimated as “prohibited grounds”). In principle, it would seem that the magazine did not discriminate anyone, for it targeted all creeds without distinction. It would not have been arbitrary either, because it did not demand the offended ones to modify their beliefs.

    And yet, it is the existence of a context or structural situation of discrimination suffered by Muslim immigrants in Europe – as the latest Islamophobic rallies in that continent have showed – that make them a especially vulnerable group, just as women are in Ciudad Juárez (Mexico), according to the ruling of the Interamerican Court of Human Rights in the “Cotton Field” case of 2009.

    In a context of structural discrimination against a minority, such as women or Muslims, the collision between freedom of speech and the right not to be discriminated becomes particularly patent, which call for a proper balancing between rights that does not assign ex ante primacy to any of them.

    If it would not be right for Larry Flint to publish his misogynous magazine Hustler in a context of structural discrimination against women such as that of Ciudad Juárez, the question arises on what are the external limits of freedom of speech of magazines such as Charlie Hebdo in a context of structural ethnic discrimination like the one in Europe.

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