Last November 11, two British Muslims, purportedly members of an organization calling itself “Muslims Against Crusades” (MAC), were arrested under the UK Public Order Act. They were accused of burning three oversized poppies at a Remembrance Day ceremony and interrupting a two-minute moment of silence with such chants as “Burn, burn, British soldiers, British soldiers, burn in hell!” and “British soldiers: murderers! British soldiers: rapists! British soldiers: terrorists!”

Last week, one of the two activists, Emdadur Choudhury, was found guilty under Section 5 of the Public Order Act of burning the poppies in a way that was likely to cause “harassment, harm or distress” to those who witnessed it, and was fined £50. The symbolic nature of the punishment aside, the Choudhury verdict invites immediate comparison with incidents of offense to Muslim religious sensibilities (from Rushdie to the Danish Cartoons and beyond), which, by and large, have not been suppressed by European legal institutions. While it is very tempting for Muslims, and those sympathetic to the situation of Muslims in Europe, to see a case like this as evidence of double-standards—Muslim speech is suppressed on grounds of injury to non-Muslims, while the reverse is not; speech injurious to secular affect is suppressed, while speech injurious to religious affect is not—this might also be an occasion for some general reflection on the problem of injurious speech in morally pluralist contexts. A case like this invites such reflection both for its similarities with and for its differences from the Jyllands-Posten and Lars Vilks cartoon affairs.

1) Europeans appreciate the concept of “moral injury.”

For some analysts, often writing on this blog, the critical lesson to draw from the Danish cartoon controversy concerns how certain ethical and semiotic norms “fail to translate” across civilizational, ideological, and religious divides. Saba Mahmood, most notably, suggests “several reasons why the idea of moral injury I have analyzed remained mute and silent in the public debate over the Danish cartoons, key among them the inability to translate across different semiotic and ethical norms.” What idea of moral injury was at stake, for Mahmood, in the case of the Danish cartoons? It was about a

violation [that] emanates not from the judgment that the law has been transgressed but that one’s being, grounded as it is in a relationship of dependency with the Prophet, has been shaken. For many Muslims, the offense the cartoons committed was not against a moral interdiction but against a structure of affect, a habitus, that feels wounded. This wound requires moral action, but the language of this wound is neither juridical nor that of street protest because it does not belong to an economy of blame, accountability, and reparations. The action that it requires is internal to the structure of affect, relations, and virtues that predispose one to experience an act as a violation in the first place.

The idea of a satisfactory “translation” of the ethical norms is left conveniently vague. What would be evidence of a successful translation of ethical and semiotic norms? That Muslims are able to have speech they don’t like suppressed by European courts? Or that more people in the media and broader public sympathize with their injury and describe it accurately?

Either way, the “poppy case” casts some serious doubt on this analysis. The witnesses and judge in the Choudhury case employ, in fact, a language almost identical to that employed by Mahmood. Judge Riddle argued that, because the November 11, 1918, ceasefire has “huge significance” for Britons, burning poppies is “is behaviour that is bound to be seen as insulting.” (Read: many Britons have a “structure of affect, relations, and virtues that predispose one to experience an act as a violation in the first place.”) A witness, the grandson of a World War II soldier, reportedly “felt sick inside. It is something that means so much to me and to see what I believed to be a wreath of poppies fall to the ground—it is just despicable.” (Read: for this witness, “the offense the cartoons the burning of poppies committed was not against a moral interdiction but against a structure of affect, a habitus, that feels wounded. . . . His being has been shaken.”)

Thus, it seems that those invested in the idea that conflicts over speech and the sacred reveal some deep and troubling incommensurability—not over whether “blasphemous” speech ought to be prohibited by the law (Mahmood does not argue for this, unlike, say, Peter Danchin), but rather over the background presuppositions about what kinds of speech can injure, how they injure, and why—are not looking broadly or carefully enough at public and legal discourse in Europe. I cannot see much difference at all between how Mahmood characterizes the injury felt by (some) pious Muslims at the defamation of the Prophet and how Judge Riddle and his witness describe the injury felt by “typical, mild-mannered” Britons at the burning of poppies during a commemorative ceremony. Thus, Mahmood seems overhasty when she writes:

Muslims who want to turn this form of injury into a litigable offense must reckon with the performative character of the law. To subject an injury predicated upon distinctly different conceptions of the subject, religiosity, harm, and semiosis to the logic of civil law is to promulgate its demise (rather than to protect it). Mechanisms of the law are not neutral but are encoded with an entire set of cultural and epistemological presuppositions that are not indifferent to how religion is practiced and experienced in different traditions. Muslims committed to preserving an imaginary in which their relation to the Prophet is based on similitude and cohabitation must contend with the transformative power of the law and disciplines of subjectivity on which the law rests.

Let’s grant Mahmood, for the moment, the idea that Muslims are only interested in using the law to prevent or punish scandalous speech about Muhammad because they are “committed to preserving an imaginary in which their relation to the Prophet is based on similitude and cohabitation.” (I find this overly restrictive of the many motivations and moral reasons Muslims have voiced—at least since the Rushdie Affair—and quite artificial in its construction.) It seems that, at least if they were arguing before Judge Riddle, they would have no problem at all articulating their “conceptions of the subject, religiosity, harm, and semiosis,” for the language Mahmood uses is, in this case, the same as that of the secular court.

2) Is it “religious pain,” or merely “Muslim pain,” about which Europeans are insufficiently concerned?

Poppies are not Prophets, though. Is the Choudhury case, perhaps, evidence that, after all, the “secular nomos” of Europe is unfairly and arbitrarily biased against religious habitus, insofar as it protects citizens from the exact same kind of moral injury only when it is performed against secular signs and not religious ones? As Talal Asad has written, because Western societies do impose some restrictions on speech, “it seems probable that the intolerable character of blasphemy accusations in this kind of society derives not so much from their attempt to constrain as from the theological language in which the constraint is articulated.”

Perhaps. This would require some direct apples-to-apples comparison, though. For example, have there been attempts to use Section 5 of the Public Order Act (leaving aside even the “Incitement to Religious Hatred” section) to prosecute acts of desecration of religious symbols combined with “persistently shouting abuse or obscenities at passers-by . . . within the sight or hearing of the suspect who is likely to be caused harassment, alarm or distress by the conduct in question” that have been summarily dismissed by similar courts on the grounds that the desecration of religious symbols cannot cause “harassment, harm or distress,” or that any that is caused is either inconsequential or deserved? Certainly, there is nothing in the language of the ordinance that would exclude religious pain from consideration, and, in fact, the law includes special consideration for “religiously aggravated offence.”

I do not mean to suggest that there is no problem of imbalance or discrimination in Europe. Far from it. Rather, I mean to ask: When does a public or a legal discourse that does not accord Muslims all the protection or consideration they want evince a problem related to the distinctly secular nature of European public norms and discourses? Those interested in exploring whether secularism is part of the problem have not only to give a better account of what a successful translation of norms would be, or what Muslims and other religious subjects are due in a pluralist society, but also, and primarily, to consider how much of what is going on in public debates about offensive speech is evidence of a particular antipathy or anxiety surrounding Muslims. Before insisting that in cases like the Danish cartoons there is a distinct kind of pain that modern secular societies simply can’t wrap their heads (or hearts) around (an explanation made quite unlikely by the language in the Choudhury case), we would do well to remember that Western publics these days often have a hard time taking seriously Muslim pain of any kind.

This phenomenon is widely appreciated, and I do not need to belabor it here. But I do want to suggest that, while Europeans’ anxieties about Muslims are often bound up in their anxieties about religion in the public sphere, and while Europeans often misuse the secular license to insult religion as an alibi for creating a hostile environment for citizens of Muslim cultural backgrounds, not every act of exclusion or hostility towards Muslims in Europe is evidence of a secular failure to provide sufficient space for multiple ethical norms to thrive. To see only secular failures (while refusing to imagine the space that secularism leaves open for the resolution of ethical conflicts) is no less a piece of dogmatism than the insistence of those who regard “secular failure” as a contradiction in terms.

3) The materiality of utterances matters.

But let us concede that in the British court’s willingness to punish a Muslim for injuring patriotic Britons, we have prima facie evidence of secular hypocrisy. Still, we must be careful. At stake was a not a general ban against burning poppies, or a ban against printing cartoons of burned poppies (or of soldiers burning in hell), but a direct physical encounter. As a fairly unimaginative American liberal habituated into a stringent defense of political speech, I would have preferred not to see Choudhury fined for this form of political expression, even if fairness and decency would permit the police to remove him from the scene at the time. However, not only is a £50 fine a relatively symbolic punishment; it is a fine, not for some general transgression against a sacred national symbol, but rather for a public disturbance.

A surprising lacuna in much academic writing, outside of legal studies, about popular incidents such as the controversy around Rushdie’s The Satanic Verses and the Danish cartoon affair is the failure to explore the materiality of speech. It is more common to explore interpretations of the utterances as such—what they mean, why they injure, why they were produced—rather than the ways in which the same utterance, in terms of brute content, can take on quite different ethical and social meanings when uttered in different material forms and in different physical contexts. Obviously, I do not flatter myself by thinking that I am correcting a general mistake on our part. Of course, we know that the “N-word,” when spoken by whites, is not the same as when spoken by blacks, and that the word spoken by a white actor on a stage is not the same as the word spoken by a white schoolteacher to a black student, and so on.

But this obvious category of ethical analysis in the realm of speech acts is too often overlooked by those broadly sympathetic to the idea of religious injury. Speech acts are, of course, always acts. They always do something. But some are more act-like than others; some do what they do more immediately and physically, with much less dependence on the agency of their recipient or target. Most obvious are instances of direct harassment or intimidation. Here, the political concern is first with public space and how it can be transformed into a zone of hostility or menace. Furthermore, it is important here to analyze the different kinds of public space available as sites of speech: schools, walls in ethnic neighborhoods, highway overpasses, bus stops, public squares, etc.

The same act can thus vary wildly, not only in terms of threat and intimidation, but also in terms of political statement, when performed in different spaces. Claiming a common space like a school through hostile speech should be considered a more aggressive act than spray-painting the identical message on a wall. Both are acts of hostility towards a group, but the first goes out of its way to “claim” a space that is not only supposed to be safe and common to all members, but that is also supposed to be dedicated to the mission of advancing inclusion and guaranteeing the acquisition of primary skills and resources. Hate speech towards Jews, Muslims, or African-Americans is vile everywhere, but it is easy to see how it is even worse in schools or Congressional hearing rooms than at lunch counters. Along these lines, for me, the Swiss minaret referendum poster portraying niqabed women and missile-like minarets disrupting the Swiss flag—plastered over walls and bus stops throughout the common public space—was a much more aggressive and hostile form of political speech than, say, the ostensibly more “blasphemous” Satanic Verses or Danish cartoons.

Because of the more physical nature of these kinds of speech, it is probably not as crucial what the subjective content of the utterance is. Whether or not Rushdie’s use of the name “Mahound” in a dream sequence in a postmodern novel is a direct assault on the Prophet Muhammad, spray-painting this over walls in a Muslim neighborhood, or at a school with many Muslim children, is clearly an act of hostility, if not intimidation. Unlike dense novels or obscure right-wing Danish newspapers, this is an act that seeks to force itself into the physical world of a target, giving him or her no choice to ignore it.

Thus, take a blasphemous cartoon in the culture section of a newspaper. It is clear that this kind of physical context could have been less offensive, but also much more so. A cartoon produced by journalists writing for a private paper is clearly much more public than one on an obscure website or in some arcane niche magazine. But in terms of a distinctly public statement, it is clearly less odious than when it was reproduced and worn by an Italian minister on a t-shirt. As a physical act, it is clearly more intrusive and insidious than words which one has to rummage through a novel in a language one understands to find, but far less so than the Swiss minaret poster. Similarly, a threat to burn the Qur’an as a media event on your own private church property is doubtless a less-than-welcome intervention into national and global multi-cultural politics, but it is also slightly less of an affront to public order than would be threatening to do so outside of a mosque after Friday prayers. And so on.

I doubt very much that I am saying anything original or insightful here, and, needless to say, I am not insisting than all pious Muslims adopt the distinctions I am drawing. But the weakness of many arguments, in my opinion, for even voluntary self-restraint in such cases as the Rushdie and Danish cartoon affairs is not that they fail to show why Muslims may have been injured, but that they fail to show why the relationship between the authors of this injury and all persons liable to be injured—all Muslim fellow citizens of a country, all Muslims of Europe, and Muslims anywhere on the globe—commands a generalized ethics of self-restraint.

This is not to say that understanding the ethico-religious imaginaries of our fellow citizens is not a crucial component of responsible citizenship. But it is to say that attaining this understanding does much less work for us than some have suggested. Given the capacity of speech about the Virgin Mary or the Prophet Muhammad to injure, what we need is not an ethos of speaking in public but many such ethoi. Speaking as a novelist, as an artist, as a cartoonist, as a government minister, as a public school teacher, as a candidate for Congress, as a professor at a private university, as a guest in someone’s home or place of worship, as a friend, as a doctor, or as a newspaper editor are all quite different roles, and each will require a different ethics of speech.

What focusing on the possible conflict between secular and religious moral imaginaries fails to advance is this understanding of reasonable ethical obligations arising from how we speak in different contexts of power and moral responsibility. The authors of moral injury are usually not unaware of the capacity of speech to injure. The Danish cartoons were not accidental acts of injury; the protagonists deliberately set out to make a statement about religious attachments (not beliefs) being fair game. Would they have gone after the Prophet Muhammad if they were unaware that this was a soft spot? Exploring the genealogy of some so-called “non-Protestant” religious subject does not actually fill in any gaps in such cases. Thus, what those interested in “fostering greater understanding across lines of religious difference” need to show is not why Muslims are injured by this but not that, but rather why and when not injuring Muslims qua pious religious subjects is a moral desideratum regardless of what other views about the social world we want to express.

4) Muslims, as much as any social group, have a strong interest in robust protections for speech.

Suppose, though, that there is a seriously skewed playing field for European Muslims in the area of offensive speech. Whether anti-Muslim or anti-religious sentiment is to blame for the differential protection of Muslim speech and non-Muslim speech in Europe, instances like the Choudhury case remind us that advocating for more stringent protections for speech (pace Stanley Fish and others who have drunk the oil) is not evidence of some embarrassingly “non-neutral” or civilizationally particularist ideological prejudice, but something in which the religious generally, and Muslim minorities in particular, have a strong interest.

To put it most bluntly: while there is no denying that Muslims and other religious subjects are often injured by speech (whether intentionally and gratuitously or merely as collateral damage from some form of social commentary), there is also no denying that the religious often wish to injure through speech. Two recent cases—the Westboro Baptist Church case in the U.S. and the burning poppy case in the UK—provide timely examples of this. And this, more than any genealogy of the subject (religious or otherwise) or archaic conception of the public/private divide, is what grounds the right to blaspheme or injure the religious: that the religious, too, often wish to injure through speech. We should be consistent and defend their right to do so, limiting ourselves to narrow, restrained, and equitable uses of public order justifications for restrictions on speech (which ought to include harassment, intimidation, and threats).

But beyond the fact that certain fundamental interests shared in equal measure by the religious and the secular generally—what Joshua Cohen has identified as the expressive, deliberative, and informational interests—are secured by stringent protections of expressive liberty, I believe that Muslim minorities in particular have a strong interest in securing a more fundamentalist and formalist culture of defense of free speech. For which community, in present times, is more likely than Muslims to be the victim of courts and legislatures that see political expression as a luxury that can give way to any political or security expediency? It is, above all, Muslim speech that is liable to be labeled dangerous, harmful, and excitable—whether through the widening restrictions on “material support for terrorism” supported by the US Supreme Court in Holder v. Humanitarian Law Project, the shameful manufactured outrage over the Park 51 cultural center, or the Choudhury poppy burning case.

The idea that free speech, even when “abused” to transgress against the sacred (whether secular or religious), is some arbitrary, sectarian value that is unjustified to the religious is a piece of sophistry that masquerades as a defense of an embattled religious minority but, in fact, undermines their long-term interests in Western societies. Of course, we often wish to suppress the speech of others, and, of course, we often believe that some symbols or entities really are sacred and ought not to be violated (unlike those fake idols that others hold sacred). But the fact that people are often unhappy with the protections they get in this or that case proves absolutely nothing. It is a strange exercise in hollow, content-free formalism, which holds up mere disagreement or dissatisfaction as evidence of profound arbitrariness or ideological bias. Of all thriving religious communities in the West, the most pious segments of the Muslim community seem as interested as any and more interested than most in their expressive liberties—to preach Islam (da‘wa), to bear witness to Muslim truths and values, to denounce Western imperialism, to protest against sexual moralities and theories of human origins that they oppose, and to construct new material and virtual moral communities. Some of what issues from these quarters injures me immediately and offends me profoundly. That is exactly as it should be.