WHAT MUST GIVE WAY? :THE TOPLESS DUCHESS, CARTOONS OF THE PROPHET AND THE RULE OF FREEDOM OF EXPRESSION

The topless duchess, the dying diplomat, cartoons of the Prophet and photographs of a secretive filmmaker. News coverage of all four has been a lightning rod for the debate about privacy, decency, tolerance, the right to publish and self-restraint.

Several media organizations came under fire for publishing a graphic photograph of U.S. Ambassador to Libya Chris Stevens, as he was pulled from the burnt-out wreckage of the consulate in Benghazi, apparently unconscious and covered in soot. The New York Times rejected a request from the U.S. State Department to remove the photograph from its website.

Margaret Sullivan, the Times' readers' representative,
acknowledged long discussions about whether the paper should publish the photo but added: "We believe this photo helps to convey that situation to Times readers in a powerful way. On that basis, we think the photo was newsworthy and important to our coverage."

But she added the Times had tried to "avoid presenting the picture in a sensational or insensitive way."

The Los Angeles Times published the photo on its front page, eliciting strong reader comments.

"With freedom of the press comes a responsibility to honor the most sensitive of moments. This was one of them, and The Times failed," said Tim Sutherland.

"What was gained by this photograph? Was it newsworthy? We know the ambassador was attacked by a mob. We know he died," commented David Latt.

Paparazzo, royal watcher debate pics

Managing editor Marc Duvoisin argued the photo was newsworthy because it captured a very rare and significant event.

Going topless

It's not clear such considerations influenced the publishers of the topless photographs of Britain's Catherine, the Duchess of Cambridge, while she and her husband Prince William were on vacation in France. The French magazine Closer was the first to publish the photos, purportedly taken with a very long lens from a nearby road. No editorial justification was offered beyond the words of the editor, Laurence Pieau, who told Agence France Presse, "These photos are not in the least shocking. They show a young woman sunbathing topless, like the millions of women you see on beaches."

 

The editor of Chi, Closer's sister publication in Italy, went further.

"This is a deserving topic because it shows in a completely natural way the daily life of a very famous, young and modern couple in love," said Alfonso Signorini.

In the cut-throat world of tabloid, celebrity-driven magazines the photos of the duchess were a coup -- a shortcut to notoriety and revenue. As Oscar Wilde once observed, "There's only one thing worse than being talked about, and that's not being talked about."

The self-described king of the paparazzi, E.L. Woody, told CNN the photographs were legitimate.

"She was standing in public, displaying her breasts in public....She was in plain view of the highway." Plain view, that is, if you have a powerful telephoto lens and endless patience.

That's not the view of the royal family. The Duke and Duchess of Cambridge began legal proceedings in France claiming a "grotesque and totally unjustifiable" invasion of privacy and asserted the photographer had trespassed on the private French estate.

She was standing in public, displaying her breasts in public....She was in plain view of the highway
E.L. Woody, 'King of the Paparazzi'

Read about the case over the topless photos

The Palace's lawyers may well believe that France's tough privacy laws favor their case and will decourager les autres. Article 226 of the French Criminal Code provides a stiff fine (up to about $60,000) and the possibility of jail time for "taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned." But it may be that the boost to Closer's circulation is deemed a price worth paying.

The irony of the photographs' publication in Closer (headline: "Oh my God -- sex and sun en Provence") and Chi (headline: "Queen in the Nude") is that both titles are part of the Arnoldo Mondadori Group, part-owned by the family of former Italian Prime Minister Silvio Berlusconi. His daughter Marina chairs the board.

While in office, Berlusconi frequently complained about the press pursuing him for apparent peccadillos, most memorably the bunga bunga parties which he and a variety of young models attended while he was in office. He sued the Spanish newspaper El Pais in 2009 after it published pictures of topless women (faces pixilated) at his Sardinia villa.

"We're talking about innocent photos, but there was a violation of privacy," he said. "These girls were bathing in a Jacuzzi inside a private home, and they were assaulted in a scandalous way," Berlusconi said.

Sounds familiar.

Cartoons and cowardice

Just as Closer and Chi hit the newsstands with their photographs of the topless duchess, another French publication, Charlie Hebdo, decided to publish crude cartoons depicting the Prophet Mohammed.

A similar series of cartoons published in a Danish newspaper in 2005 led to widespread and often violent demonstrations in the Muslim world. Any depiction of Islam's prophet is considered blasphemy by many Muslims. But the magazine's director, Stephane Charbonnier, said Charlie Hebdo was using freedom of expression to "comment on the news in a satirical way."

Charbonnier said the project was a response to the furor generated by "Innocence of Muslims," the film made by Nakoula Bassely Nakoula. It was after a clip of the film -- which was posted under his pseudonym, "Sam Bacile," on YouTube -- appeared on Egyptian television that the latest protests started.

"It happens that the news this week is Mohammed and this lousy film, so we are drawing cartoons about this subject,"

In another interview Charbonnier made a more serious point about why Charlie published the cartoons in the face of intense opposition."It shows the climate -- everyone is driven by fear, and that is exactly what this small handful of extremists, who do not represent anyone, want -- to make everyone afraid, to shut us all in a cave." he told Reuters.

Charbonnier might have pointed to the decision three years ago by Yale University Press to publish a book by Jytte Klausen called "The Cartoons That Shocked The World" -- without publishing the cartoons. Its director, John Donatich, acknowledged then, "The overwhelming judgment of the experts....was that there existed an appreciable chance of violence occurring if either the cartoons or other depictions of the Prophet Muhammad were printed."

The decision was widely criticized. Cary Nelson, then-president of the American Association of University Professors, called the YUP "fundamentally cowardly." And in the Chronicle of Higher Education, one reader wrote: "If editors in revolutionary times had the kind of convictions exhibited by those of the Yale University Press, they would have gutted the Federalist Papers to keep from offending the British overlords of the day."

Many newspapers and other media organizations -- CNN among them -- also chose not to publish the cartoons. A New York Times editorial in 2006 said that was a "reasonable choice for news organizations that usually refrain from gratuitous assaults on religious symbols, especially since the cartoons are so easy to describe."

So should freedom of expression (or freedom to be satirical) be subject to self-restraint when it might otherwise be misinterpreted and in the process put lives at risk? The immediate consequence of the cartoons' publication included further protests and the brief closure of French embassies in some 20 countries. French Prime Minister Jean-Marc Ayrault defended Charlie Hebdo's right to publish but added, "There is also a question of responsibility."

Ed Husain, a senior fellow at the Council on Foreign Relations, argues that his fellow Muslims need to exercise restraint in the face of provocation. "The millions of protesters last year in Arab capitals that chanted 'hurriyah, karamah, adala ijtima'iyya' or 'freedom, dignity and social justice' cannot allow for the emotions of bigots to derail their revolution," he wrote in an opinion piece for CNN.com.

"Freedom is not only about majority rule, but ensuring that women, religious minorities and intellectual dissenters are able to flourish without fear," he added.

It's a similar argument to that made by Flemming Rose, the culture editor of the Danish newspaper Jyllands-Posten, which first published the Prophet cartoons back in 2005. In a free society, Rose wrote, "Everybody must be willing to put up with sarcasm, mockery, and ridicule."

only about majority rule, but ensuring that women, religious minorities and intellectual dissenters are able to flourish without fear
Ed Husain, senior fellow, Council on Foreign Relations

In the United Kingdom, the powers of the Press Complaints Commission appear to have encouraged self-restraint among publishers who might have considered showing the topless duchess. In fact, the tabloid press appeared to nail their colors to a new standard, with the Daily Mirror declaring that "public figures who behave well have the right to a private life."

The Sun -- which weeks earlier had published photos of a naked Prince Harry cavorting in a Las Vegas hotel room -- used the incident for an old-fashioned broadside against the perfidious French.

"The final irony is that it is France -- smug, privacy-obsessed France -- that has published grossly intrusive pictures that no decent British paper would touch with a bargepole," it proclaimed.

The newspaper has clearly updated its code of conduct since 1999, when it printed a topless photograph of Sophie, the Countess of Wessex, days before her wedding to Britain's Prince Edward. And the climate in the UK has undoubtedly changed since photographs were published of a topless Sarah Ferguson -- and her toes -- getting familiar with an American businessman exactly 20 years ago soon after her separation from Prince Andrew. Public uproar over the conduct of the paparazzi after the death of Princess Diana was instrumental in changing the climate.

In the United States, a distinction is drawn between the taking of photographs and their publication.

When it comes to governments pursuing someone for saying something -- that should be a very rare occurrence

Daniel J. Solove, a law professor at George Washington University says the principle of "intrusion upon seclusion" involves someone intentionally intruding, physically or otherwise, into someone else's private affairs -- though states have varying definitions. As well as trespassing, that can include the use of zoom lenses or high-powered listening equipment.

Publication is protected by the First Amendment but can fail if it is deemed highly offensive or fails the newsworthiness test. In reality, Solove says, U.S. courts tend to be very generous when it comes to the "newsworthy" test and are reluctant to impose a threshold, whereas European courts are more plaintiff-friendly. He cites the case of author J.K. Rowling, who successfully sued a newspaper after photographs of her young son were published.

Solove says that the U.S. Constitution allows people to speak robustly.

"When it comes to governments pursuing someone for saying something -- that should be a very rare occurrence," he says.

Many European countries also have laws that ban speech or actions likely to inflame religious and racial hatred. Some even outlaw blasphemy -- though rarely prosecute alleged offenders. But however hateful the content of "Innocence of Muslims," hate speech is not a crime in the United States, and U.S. courts rigorously protect First Amendment rights.

Last year, a U.S. federal appeals court overturned the conviction of a man who had directly encouraged violence against then-presidential candidate Barack Obama, including one online posting that read: "F* the n****r, he will have a 50 cal in the head soon." By a majority, the court held that "urging others to commit violent acts 'at some indefinite future time' does not satisfy the imminence requirement for incitement under the First Amendment."

Indeed, on Tuesday President Obama told the U.N. General Assembly, "Our Constitution protects the right to practice free speech. Here in the United States, countless publications provoke offense. Like me, the majority of Americans are Christian, and yet we do not ban blasphemy against our most sacred beliefs."

Obama: We cannot ban blasphemy

That's a concept that is rejected in many Muslim countries, where many interpret Sharia -- or Islamic Law -- as the principal source of guidance. Egyptian President Mohamed Morsi called for the use of "all possible legal procedures" in the United States against the filmmaker, unaware there were no such avenues. A Pew Global Attitudes poll in 2010 found large majorities in Egypt, Jordan and Pakistan favoring the death penalty for those who leave the Muslim religion. Tolerance of blasphemy would be unthinkable.

Like me, the majority of Americans are Christian, and yet we do not ban blasphemy against our most sacred beliefs

U.S. President Barack Obama

Even so, Klausen, the author of "The Cartoons That Shocked The World," told CNN she sees differences between the latest protests and the fury that erupted in 2006. She believes that the current protests are more confined to a minority of extremists. And that's in part because of a growing appreciation in Arab societies of how social media works. Not only can it be exploited by extremists, but "younger people believe it helped them overthrow the old order and gain access to freedom," she said.

Klausen, a professor of international cooperation at Brandeis University, also points out that it is the new media freedom in Egypt that allowed the clip from "Innocence of Muslims" to be aired in the first place. It would never have happened under the 30-year rule of former President Hosni Mubarak. Such can be the price of free expression.

Identifying the film's director raises yet another set of issues. Some assert that Nakoula has no right of anonymity because he made himself a public figure by publishing part of "Innocence of Muslims" online and then promoting it in a series of interviews (while hiding behind his pseudonym). Nakoula told the Wall Street Journal that Islam was a cancer -- while identifying himself as an Israeli-American by the name of Sam Bacile. He is in fact a Coptic Christian.

His film was also intended to provoke religious hatred around the world -- putting the lives of many innocent people at risk while apparently deceiving the cast and crew of his intentions.

In the other corner, some maintained that identifying Nakoula would endanger his life and might also put members of his family and community at risk. Certainly, members of the Christian Coptic community in Los Angeles, where Nakoula lives, expressed concern about a risk to their safety as a result of the publicity surrounding him. The $100,000 bounty offered by a Pakistani government minister to anyone who kills Nakoula won't ease their anxiety.

The era of social media has also added another layer of complexity to these issues.

Ahmadinejad denounces reactions to film

"At a time when anyone with a cell phone can spread offensive views around the world with the click of a button, the notion that we can control the flow of information is obsolete," Obama acknowledged in his U.N. General Assembly speech

One of the actresses in the film -- Cindy Lee Garcia -- went to a county court in Los Angeles in an attempt to have the clip taken off YouTube, saying she had been deceived by Nakoula about the film's nature. She failed -- not least because U.S. federal law protects third parties from liability for content they publish.

Egyptian grand mufti on violence

Google, which owns YouTube, blocked the clip from being seen in Egypt, Libya, Saudi Arabia and elsewhere (arguing that it was subject to national laws) but left it up for users elsewhere to watch.

The author Klausen says a distinction needs to be drawn between the platforms -- the likes of Google's YouTube which are subject to U.S. law -- and those individuals uploading material, who might be liable under national laws, if they can be traced.

But Solove, the George Washington University professor, says such companies have tough judgments to make about how far to comply with a foreign government's objections and how far to insist they cannot act as censors. Case in point: Google's fallout with the Chinese authorities, which led the company to close google.cn.

In looking back at the furor caused by the cartoons, Klausen recalls a theme in Akira Kurosawa's 1950 film "Rashomon": "Each understood the facts differently and was poorly equipped to understand the motives that drove the actions of others. . . . The moral was that interpretations are more consequential than objective realities."

CULLED:CNN

EDITED:LII