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The Cost of Free Speech in an Era of Terrorism: Entertainment and Art

ABA Entertainment and Sports Lawyer


Vol. 32 No. 1

By Alexandra Darraby

Alexandra Darraby is the principal of the Art Law Firm, co-chair of the International Division of the ABA Forum on Entertainment and Sports Industries, an incoming officer of the Executive Committee of the State Bar of California International Law Section, and the author of the treatise, ART ARTIFACT ARCHITECTURE & MUSEUM LAW (Thomson Reuters West: 2014 (17th ed).

Freedom is just another word for nothing left to lose…
Nothing don’t mean nothing, honey, if it ain’t free…1

Who doesn’t love Paris? Ask Woody Allen, whose Midnight in Paris starred the City of Light itself, with character appearances by Pont Bir Hakeim, le rue Galande, Left Bank boutiques, and the fabulous Hotel Bristol on the fashionable rue Faubourg St. Honore.

The cache-pot of ethnically diverse Paris is the 11th arrondissement. The 11th boasts the highest urban density in Europe and diverse demographics. It is home to clubs and hot bars, places to hook-up like Chez Justine and hang-outs like Bar Entre Potes. Nothing distinguishes the stretch of Rue Nicolas-Appert that runs 137 meters in the Right Bank neighborhood, except perhaps the Comedie Bastille at No. 5, and the nearby Musée Edith Piaf. The Nic has little of the history that surrounds its famous neighbor, the Place de la Bastille, nor is it historic by American standards, named just 30 years ago for an eponymous French businessman credited with airtight food preservation. The Nic is just a commercial street in the winding historic snail that Haussmann designed for urban Paris, a city that painters and filmmakers have deified thereafter.

Or, at least it was, until January 7, 2015, the first Wednesday of the New Year. The chic shops south toward the Seine were not yet open, and the fancy food shops that skirt the neighborhood were just opening. But at No. 10, Charlie Hebdo, a satiric weekly magazine that reportedly sells about half its weekly runs of 60,000, Wednesday mid-day was time for the editorial meeting, a late morning latte, and leftover breakfast brioche, with the day’s assignments in progress. In short, it was a day like any other work day.

Until 11:24 a.m., when two brothers entered No. 10 and gunned down the Charlie staff, discharging their AK-47 assault rifles, armed with Skorpion submachine guns.2 By the time the Kouachi brothers had fired off the Kalishnakovs, eleven were dead, including its editor in chief, Stephane Charbonnier, cartoonists, columnists (a psychoanalyst and economist), other staff, and the building caretaker, and eleven more in the building were downed by bullets. The massacre was over in minutes. From the Citroen C3 getaway car, the brothers shot a French National Police officer, reportedly jumping out to shoot the officer at close-range, bringing the kill rate to twelve. The cry of “allahu akbar” rang out in the 11th, this ethnically diverse enclave of Paris.

The brothers were described as members in good standing of Al-Qaeda, an Islamist terrorist group. Al-Qaeda has adapted—indeed mastered—corporate America’s franchising model, opening branches in Yemen, Tunisia, Syria, Iraq, with a branch coming soon to your neighborhood, if the Al-Qaeda strategic plan is successful.

And if anyone doesn’t know what the writers at Charlie Hebdo did that wrote their own death warrant, it was a decision to republish on the weekly’s cover a Danish cartoon sending-up Mohammed. The murderous mayhem was payback for the journalistic act of publishing a cartoon—yes, a cartoon! In the original, and the derivatives, Mohammed’s turban is portrayed by two white ovals and a vaguely Mediterranean-looking beard is shown by a scruff of lines around his chin. The cartoon figure is seen in various postures and with different texts. To the western viewer, the image may seem trite, silly, or humorous, affable, avuncular even, an absent-minded professor type. To Al-Qaeda, and certain others, depicting Mohammed at all, let alone satirically or cartoonishly—amiable or otherwise—is sacrilege, heresy, an insult that threatens to undermine Islam. Indeed, the insult is so great (and is perceived as so threatening) that in some minds it justifies murdering innocent people, as well as the content providers who created, published, and distributed the cartoon. The parity of cartoon on the one hand, however offensive, and twelve murders and twelve attempted murders on the other, is a life-and-death equation left to the reader. Indeed, a great many readers ran to the internet and legitimate media outlets to share their views that the Charlie staff had invited death in the door and brought murder unto themselves by publishing such a cartoon.

On the morning of November 2, 2004, Theodoor Van Gogh, a filmmaker and the great grandnephew of Vincent Van Gogh, was shot eight times by a Moroccan Dutch citizen peddling his bike to work in Amsterdam. The killer reportedly shot him again when Theo fell bleeding into the bike lane, cut his throat, decapitated him (unsuccessfully), and pinned a letter to his chest as he bled out. The letter was addressed to Theo’s film collaborator, Ayaan Hirsi Ali, a Somali refugee and politico in Holland, who wrote the screenplay of the short fictive film Submission, directed by Theo, which had aired on Dutch public television three months earlier. Submission criticized the treatment of women in Islamic countries. Satirizing or criticizing Islam and militant Islam do not mix, and the contraindication has a high mortality rate for those who dare.

Like the responsive option in an Outlook email to request a “read receipt,” content creators could reasonably think to themselves: “Message received.” Mortal danger is not what most creators bargain for if a misstep is made with respect to comment and criticism, and engaging on Islam poses a veritable and perhaps an actual threat.

But this article is not about the Kouachi brothers, Van Gogh, Al-Qaeda, Charlie Hebdo, or Islam. Plenty has been written in the trades and on social media about these events, the aftermath, the soul-searching rallies and demonstrations, and readers can select their favorite news sources.3

This article is about us, the men and women in the industry, film, TV, theatre, media, music and arts—the creators of entertainment content, and the distributors, exhibitors, media reps, agents, and lawyers who represent the industry. Eighty percent of worldwide entertainment content sources to America, and the U.S. is the largest global entertainment exporter of the 21st century world. American entertainment content is so powerful that even when it fails domestically, it is regaled in Europe and overseas, where box office flops turn into hits. Josephine Baker, Jerry Lewis, and Pharrel Williams are but few of many exemplars.

Murdering creators—whether our clients or not—while they are sitting at their desks or peddling to work is something that should interest us. Surprisingly—or perhaps not—the murders have had little traction in the American entertainment community, notwithstanding the millions of words that have seemingly covered every angle. A few voices have been heard, some surprising (Mia Farrow), some expected (the Huffington Report). But overall, the moral outrage and moral soul-searching from the American entertainment community has been, at best, muted.

This article is about not what we say, or what we do, but about what might not be said and might not be done if we don’t do something. This article is about the “C”-word—Chill—big or little. And “chill” is not the only “c”-word American society has to ponder. Because the big “C”-word is Censorship. And in many ways worse for creative content, the real “c” word is self-censorship.

Ordinarily this concern would seem overblown, especially in the internet age where bullying, defamation, rumours, falsities, and stupidity stream along with trillions of gigabytes and pixels. For those who believe in the First Amendment as a societal safety valve for pent up ills—and hope that speech will beget more rectifying speech—the internet is the veritable tsunami of words, imagery, grievances, and misinformation.

What cost is fear to the dialogue of protected speech upon which America has staked the First Amendment? What happens when content creators consciously, or unconsciously, dilute or drain the content of their speech? What result when we as creators and distributors avoid words or images that could trigger an edgy dialogue—or even a banal one—about religion? Art? Antiquities? Islam? Do we opt for silence if murderous sensitivities might be provoked? Has the sacred bond between speaker and listener, sender and recipient, creator and responder, been severed, even just a little? Have the contours of speech been winnowed just a little more, by our own self-conscious decisions to avoid and deter a fracas, a confrontation, threats, hate mail, bombings, murder?

Within weeks of writing this, the issues and fears lapped unto America’s shores. Two gunmen dressed in body armor opened assault weapons at a cartoon competition in Texas to draw Muhammad, one of whom reportedly declared loyalty to ISIS on a tweet before the contest.

A few weeks later, on May 6, 2015, PEN awarded the Freedom of Expression Courage Award to Charlie Hedbo’s remaining editors amid a standing ovation, but not universal support. More than 200 PEN members signed a letter stating, in part, that a line differentiated “staunchly supporting expression that violates the acceptable, and enthusiastically rewarding such expression.”4 The Editor in Chief, accepting the award, responded, “Being shocked…is the democratic debate. Being shot is not.”5

The production and commercial distribution of pornography and profanity seem to have developed a protective moat so vast that even militant Islam seems staggered to take on. Four letter words are the patois of many of today’s hit songs, so accepted that lyrics loaded with c-words and f-words are piped into gyms, hair salons, and played on the radios of carpooling parents driving their kids to school. A new film noir series on prime time network television depicts Charles Manson sodomizing his former lawyer. But if profanity and pornography is prodigious and ubiquitous in entertainment, the industry still shies away from political creases or religious rifts.

Seth Rogen is the filmmaker behind The Interview, a Sony-Columbia production-distribution of a comic send-up of North Korean leader Kim Jong-Un. The film was scheduled for release in theatres nationwide on December 25, 2014, but threats from North Korea, actual or potential, caused Sony to pull it.6 Major American cinema chains cancelled screenings and exhibitors refused to run it. Netflix picked it up for release January 24, 2015, and some independent theatres showed it but the theatrical release was reportedly $6 million, compared to the $40 million of online sales by streaming and on demand. If the Sony leaks are accurate, Seth Rogen pocketed more than $8 million for the film and went to the internet; Salmon Rushdie, under fatwah, on the other hand, went into hiding with round-the-clock police security. While North Korea did not threaten to blow up America because of The Interview (it has other reasons), it seems accepted by U.S. intelligence according to media reports to date that the Crypto-gate at Sony probably sourced to North Korea.

The debate in the “free” world among intelligentsia, the media, the pols, academia and the press, newsies, talking heads, and some news organizations, has taken positions after the Charlie Hebdo massacre that sound like, “sure, publish what we want, but why should we, if it offends someone?” In short, the politically correct argument, or reasonably safeguarded one, has been that sensibilities need to be part of the journalistic calculus. Are the issues so simplistic that the question is principle vs. practicality?

It is precisely where freedom of expression is threatened that the voices must be loudest, not muted, or silenced. It is precisely where satire sends up weakness that it deserves more protection, not less.

The abolitionists gave offense, and plenty of it. But they refused to be silenced, notwithstanding threats, pressure, and death. The civil rights movement as a group refused to be silenced, notwithstanding threats, pressure, and death. The civil rights workers of the 1960s who supported the movement individually, refused to be silenced, notwithstanding threats, pressure, and death. And the “offensive” voices that could still be heard were championed in a free press by those who courageously were not chilled.

Words are deemed dangerous to those who fear. Words have been feared for centuries, indeed, millennia. Christ and his disciples in the first century would not have been “liked” by many on Facebook. Since the mass distribution of words via the invention of the printing press, kings, governments, and interest groups have fought to control content and the creators who produce it. Copyright law sources to that very urge to control and to the economic monopoly principles underlying it. In the modern era of mass-distributed images, Instagram, SnapFish, and Shutterfly, visual imagery is as feared and fearful as textual content.

The likelihood of a fundamentalist of any sort or any religion mowing us down at work may be statistically unlikely, but the very fact that creators are attacked in the banality of their daily routine, the quotidian acts like coffee, meetings, commutes, that measure all our work days, impose on all content creators an obligation to guard our neighbors’ backs. Within hours of writing this, a young Pakistani was murdered on his way to work at a travel agency for posting a blog satirizing Islam. He was 27 years old.

It may be that we are immune from such horror7, but immunity should only make us more vocal, not more silent. The forefathers of this country were onto something when the First Amendment was added to the Constitution. The interchange of expression and content creation needs to be kept alive, raucous, loud, rowdy, boisterous, even boorish. As this author blogged, “CREATIVE EXPRESSION IS THE CRUCIBLE FOR A PLURALIST SOCIETY.”

Editor’s Note: The views and opinions expressed in this Article are solely those of the Author. These views and opinions do not necessarily represent those of the Editor in Chief, the American Bar Association, the ABA Forum on the Entertainment and Sports Industries, or any other staff, and/or any/all contributors to this journal.


1. Me and Bobby McGee Lyrics by Kris Kristofferson (1969); recorded originally by Roger Miller and others, including Kristofferson and Janis Joplin, whose version went to #1 after it was released posthumously in 1971.

2. Saïd and Chérif Kouachi, French citizens born in Paris to Algerian immigrants, according to police reports published in the media, hijacked a Renault Clio as their getaway ride, en route to a hostage-taking on January 9, 2015 at a signage company some 35 miles northeast of Paris. A nine hour siege ended when they ran from the building shooting at police, in a blaze of live action impressive enough for a Dirty Harry movie, the embodiment of the very Western entertainment jihadists decry.

3. On January 11, 2015 , two million people rallied in Paris and millions reportedly demonstrated in Europe. “Je suis Charlie” overnight became the moniker of the movement.

4. “Charlie Hebdo Editors Get Standing Ovation at PEN Gala,” The Guardian, May 6, 2015.

5. Id.

6. NetFlix teamed with Sony to distribute The Interview according to reports quoting Ted Sarandos, its chief content officer.

7. Although daily reports by the media and law enforcement about events in Texas, and links between the gunmen and terrorist organizations, may indicate immunity is elusive.

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