Like many others, I’ve spent the last week and a half trying to wrap my head around the traumatic events that unfolded in Paris, when gunmen slew a dozen journalists and cartoonists in the offices of the satirical weekly Charlie Hebdo. I also watched as, predictably, a heated debate exploded online within mere hours following the initial assault (and well before the bloodletting ended in simultaneous sieges a couple days later) over whether Charlie Hebdo‘s cartoons mocking Islam (or, at least, targeting certain aspects of Islam and associated extremist practitioners and political ideologues, if you prefer) constituted racism or Islamophobia. Richard Seymour at Jacobin magazine made the first big splash by declaring: “I simply take it as read that — irrespective of whatever else it does, and whatever valid comment it makes — the way in which that publication represents Islam is racist.” The response to those suggesting that perhaps Hebdo was a problematic standard-bearer for the cause of free speech and expression was angry and occasionally near deranged in its outrage (consider Jorg Heiser in Frieze).

For my part, I was both troubled and didn’t, at first, want to try to respond by writing something. As a journalist and a critic, one of the things I’ve grown tired of to my bones is an Internet flame-war. I’m flogging a dead horse by pointing out that these days, reflection and reporting are out of fashion; it’s easier for writers to churn out several-thousand-word think-pieces in mere hours, apparently, than to grapple with the deeper and more problematic aspects of the issue they’re supposedly responding to. In fact, what we normally wind up with are puffed-up jeremiads about this or that–bloggers and opinion columnists yelling at one another across the web. This sad state of affairs will flame for a few days and then, when the news cycles on, the discussion will simply be dropped, regardless of whether it’s an important one to have.

Anyway, I had no desire to contribute to that, so I simply sat down and read Stanley Fish’s There’s No Such Thing As Free Speech (and it’s a good thing, too!) [PDF] and then thought for a while.

The events in Paris, and the debate over whether speech intended to provoke and outrage should be permitted, celebrated, or condemned, has only made Fish’s 20-year-old collection of essays more relevant, and I strongly encourage readers to check out the PDF I linked to above, which is the core essay in the collection, and one that gave it its title. Contrary to what outraged respondents claimed at its time of publication (at the height of Culture Wars) and, no doubt, people will accuse him (and me) of now, the point of the essay isn’t “that freedom of speech should be abridged but that freedom of speech is a conceptual impossibility because the condition of speech’s being free in the first place is unrealizable.”

To briefly summarize, Fish’s argument is intended to problematize both our popular conception of what free speech is, and how that informs and is applied within the American legal system, where a libertarian right to free speech is a core principle. The first issue Fish addresses is the bizarre distinction such a principle makes between speech and action. On the one hand, speech would seem to constitute a form of action, yet the notion of “free speech” tries to carve out a space for this particular form of action such that it can be distinguished from other actions (which can be regulated) as a special and distinct thing (which cannot or should not be regulated).

This sets up a bizarre and counterintuitive proposition: Speech is both so important that its free exercise must be absolutely respected, at the same time that it’s so harmless, in and of itself, that we can safely elect not to regulate it under (almost) any circumstances. It’s both the most and least consequential thing in a liberal society.

Of course, this distinction between speech and action is ridiculous, and the law does not now, nor has it ever, fully adhered to it. One of the dominant exceptions American constitutional law carves out in terms of speech regulation is for so-called “fighting words,” or, more formally, “incitement to violence,” which is defined as speech that could lead an “average person” to proceed into a violent–and therefore regulateable–action. This distinction between speech that should be protected and speech that’s close enough to regulateable action undermines the initial distinction between speech and action that let us establish a special, protected sphere for “speech” in the first place (the “marketplace of ideas” in which speech exists as nothing more than “mere ideas”).

As Fish writes in a section given painful new relevance in light of recent events: “The problem with this definition is that it distinguishes not between fighting words and words that remain safely and merely expressive, but between words that are provocative to one group (the group that falls under the rubric ‘average person’) and words that might be provocative to other groups, groups of persons not now considered average. And if you ask what words are likely to be provocative to those nonaverage groups, what are likely to be their fighting words, the answer is anything and everything, for as Justice Holmes said long ago (in Gitlow vs. New York), every idea is an incitement to somebody, and since ideas come packaged in sentences, in words, every sentence is potentially, in some situation that might occur tomorrow, a fighting word and therefore a candidate for regulation.”

If this seems a little too abstract to unpack, let’s apply this to the situation that unfolded in Paris (and I know that we’re crossing legal doctrines, etc., but my point here is to grapple with “free speech” as an abstract notion–which is the form it takes when being celebrated). Here we have competing notions: that of the “average person” whose responses are deemed sufficiently rational and predictable according to social convention that it serves as our base-line of behavior, and the notion of “fighting words,” which are those very words which, if they could incite an average person to violence, could be suppressed within the bizarre distinction-within-a-distinction American legal precedence has carved out for speech. In this case, I don’t think I have to argue the following two points: (1) that Charlie Hebdo‘s cartoons could clearly provoke or even cause distress to observant Muslims, for whom depictions of Muhammad are generally verboten and for whom insult or mockery of the Prophet is a profound offense; and (2) that by publishing them, Charlie Hebdo incited a violent response.

Before anyone claims that I’m making the argument that “they got what they were asking for,” trust me, I’m not. Those killed in the newspaper’s offices may well be martyrs to a cause we all support, but martyrdom, too, requires that the victimization is as a result of refusing to reject one’s principles and suffering as a result. Whether you condone or condemn the principles that informed their actions, their actions nevertheless incited a response: a gruesome, savage one. The point is how this plays out within the framework of “free speech” and under what circumstances it can be regulated.

I’ve read dozens (at this point) of arguments over how we should interpret Charlie Hebdo‘s cartoons. They’re leftist, some argue, they’re not racist, they oppose social restraints conservative religions use to suppress women’s rights, LGBT rights, and so on! Others argue: This is a longstanding French tradition going back to the Revolution that Americans simply don’t understand! (I actually really hate this one; the “tradition” they’re appealing to is one that waged a hideously misogynistic campaign against Marie Antoinette that few would stomach today, something I think we can all agree on today with being declared monarchists.) It’s about context, argue still others, cartoons about specific newsworthy situations that occurred at one point in time that can’t be examined in the abstract!

As a critic, though, I find these arguments pretty thin reeds. What most commentators (on both sides of the debate) are arguing about is intent; it’s not whether the cartoons themselves were racist, but whether their creators were racist, or expressing a racist intent. This is a convenient canard, of course, that utterly fails the Piss Christ Test. Leaving aside the more subtle and complicated aspects of the diverse representations of Muslims, Arabs, and religious figures Hebdo presented, I think we can all broadly agree that given that there are nearly two billion Muslims on Earth today, practicing a religion with a millennium-and-a-half’s history, that it’s pretty lame argument to say that doing something that religion forbids (representing and mocking the Prophet Muhammad) must be qualified by context and intent.

Which leads us to the issue of “average person.” Those who’ve argued that Charlie Hebdo were “equal-opportunity” offenders (which is ultimately the notion I intend to problematize here) can easily point out that Evangelicals, Hindus, Buddhists, Jews, and Catholics–all of whom may have religious reasons to be offended and incited by something like this–do not respond with terrorist violence. What this actually points to, though, is a normalizing function within a liberal society: Freedom of religion and belief (enshrined by the same amendment to the US Constitution that protects political speech, coincidentally) must necessarily be abridged in order for those individuals to enjoy the full rights of citizenship. That is, your religion may have a requirement that you stone those who consume shellfish, for instance, and that’s fine–you can have your religion–provided of course you don’t actually do that to people.

The difference, then, between an “average person” and a “non-average person” is precisely whether that individual elects to submit to the requirements of a liberal society, regardless of whether such requirements conflict with an individual’s own protected religious beliefs. This is what is more generally known as “assimilation,” but can, in this context, be compared to hazing, a process by which individuals are required to accept transgression against themselves in order to enjoy the full rewards of social membership. This is the difference between an “average person” and someone who is not under US law, where there is little question about the legality of publishing the same cartoon incitements that put Charlie Hebdo in the crosshairs of radicalized individuals more comfortable with Al Qaeda or the Islamic State than a liberal democracy.

None of this, I think, is actually controversial to say. It’s just an ugly way to put it. Tolerance is a crucial value of liberal democracy, and everyone more or less agrees that tolerance of difference–that pluralism itself–is a core value that permits a liberal society to exist. But there is an argument inherent in liberalism that holds that liberal intentions (openness, tolerance, free speech) can be employed to illiberal ends (some or another form of fascism or totalitarism), and it is within this argument that Charlie Hebdo‘s provocations are best understood: The fear of liberal values being employed to illiberal ends demands that a contest between competing value systems be held. Society must distinguish (always back to separation and distinctions, yes?) between those who submit to the immutable, non-negotiable tenets of liberalism, and those who don’t. In this regard, the savage mockery and insult and transgression of Islamic values carried out by Charlie Hebdo must be understood as weapons employed in a war, to force Muslims in France, and the west at large, to submit to liberal values. In other words, to define themselves as “average persons” who would not resort to acts of violence in response to mere satiric provocations against their religious beliefs.

This helps to illustrate Stanley Fish’s other major critique of the notion of free speech, that it exists to establish a realm in which speech and discourse can occur without political or ideological interference. His main argument–and the one most misunderstood in the 90’s but increasingly self-evident today–is that, “Rather than being a value that is threatened by limitations and constraints, expression, in any form worth worrying about, is a product of limitations and constraints, of the already-in-place presuppositions that give assertions their very peculiar point.” Or, in other words, that speech–indeed the very appeal to the notion of “free speech” itself–occurs not as a depoliticized, ideology-free gesture (a “marketplace of ideas” in which value or the lack thereof will sort itself out), but rather an act which occurs within a specifically constrained political arena.

As Fish puts it, “[E]xpression is more than a matter of of proferring and receiving propositions, that words do work in the world of a kind that cannot be confined to a purely cognitive realm of ‘mere’ ideas.”

Consider what it would mean for a white person to walk down the street calling every black person he saw a “nigger.” Likely, our first response would not be, “But he’s just exercising his right to free speech!” Rather, we’d likely identify this act as racist, an insult, and a provocation. Yet it is actually an exercise in free speech. American case law has never universally found (in the bizarre circumstances that this comes up) that directing a racial epithet at someone’s face actually constitutes “incitement to violence” and is therefore a regulateable limitation on speech (see Randall Kennedy’s Nigger: The Strange History of a Troublesome Word).

This is similar to what Charlie Hebdo did over the years: Deliberately provoking, intending to cause harm and distress, or more specifically, to force individuals from a disenfranchised, racially-abused class, to submit to such harm in the name of an abstract principle the actual intention of which was to regulate their behavior.

It’s an ugly thing, but that is actually what we support when we claim to support “free speech.” In liberal societies we seem to lionize free speech as a bastion against totalitarianism, which we view as a matter of a corrupt elite forcing their views upon a near entirely opposed populace. But what it actually means is supporting the rights of individuals who not only disagree with us but are likely outside the political mainstream entirely: pro-pedophilia activists, neo-Nazis, racists, religious groups tolerant of violence against abortion doctors, and anti-LGBT activists whose speech is a matter of humiliating, shaming, harming, and hurting others, including children.

As someone in the art world, I support freedom of expression. I’ve known too many American artists who fought the Culture War for me back when I was a child. I’ve met artists who have been victims of state repression in the countries they’re from. But there’s a difference between speaking truth to power and speaking because you have power. Free speech notionally protects both. Our ongoing insistence that it can be supported in the abstract is problematic precisely because it’s the easy answer. Politics–the actual social function of determining the structure of a society–is the boogeyman free speech wants to avoid. But it’s crucial if we’re to actually deal with social ills rather than merely accepting the status quo. Free speech becomes a bizarre argument. In America we embrace it as a libertarian value, yet we know that every transgressive or progressive or regressive idea will be challenged and suppressed by the exercise of political power. As an actual value, free speech is a pretty shitty foundation for politics, and in practice, none of us believe in it. We only employ it discursively when we intend to promote our own political perspective (pace Fish).

I have to admit, I do find it problematic to lionize Charlie Hebdo. Mere days before those shootings, I was reporting on the suppression of Teatr.doc in Moscow. Already in the process of being displaced, the theater was the site of a massive police action for screening a documentary on the conflict in Ukraine. Where was the Teatr.doc protest, I ask you? I support them far more than I support old white men taking pot-shots at a disenfranchised racial and religious minority. Here was an arts organization defending civil and human rights, who crossed the line (numerous times, actually) in an increasingly authoritarian state, was suppressed by state forces, and ignored by free speech advocates in the west.

Oh, and the man responsible for that repression?  One of many offering his condolences to the victims of the Charlie Hebdo violence.

I’m no more advocating for formal restrictions on free speech than Fish was in 1994. But like him, I find the discussion reductive and simplistic. To invoke “free speech” as something happening in a vacuum is to neglect my obligations as a critic and a journalist; it’s to collapse dissent and the exercise of authoritarian power. It is to accept a false premise and neglect our obligations to produce the sort of society we want to live in.

There is no such thing as free speech. Speech is an action with consequences that we should deal with.