Reader Request Week 2015 #1: Free Speech Or Not
It’s time to begin this week’s Reader Request Week! So let’s start with something chunky. Evan H asks:
There seems to be increasing polarization between those who view freedom of speech as an absolute, unfettered necessity for free society, and those who argue that since speech can cause harm, and the job of government is to protect its citizens from harm, the government should be allowed to limit speech in some (perhaps restricted) way.
Philosophically, where do you fall on this issue? Do you think speech is fundamentally different from other potentially harm-causing actions? Should the government ever be able to limit speech in pursuit of the greater good?
Tangentially: large free services like Twitter and Facebook are severely blurring the line between privately-owned spaces (where they have complete control over what speech is permitted) and public forums (where they do not). Twitter is legally a private space, but most of the time it *feels* a lot more like a public forum. Do you think the law needs to “catch up” in how it handles these quasi-public forums?
Let’s begin by noting that “free speech” here is by no means an absolute on the level of individual governments. People, and on the Internet particularly, often seem to take their concept and definition of “free speech” from United States constitutional norms, but, strangely enough, no country in the world is actually bound to the United States constitution but the United States. This is a state of affairs that often appears to confuse people.
In point of fact, however, the First Amendment of the Constitution of the United States and the assorted Supreme Court rulings associated with it apply only to the United States. Everyone else works under whatever rules regarding free speech their countries have. By and large, particularly in Western countries, this means quite a lot of leeway in what one is legally able to express, but there are limits (generally) which are more strenuous than those in the United States, and obviously there are other countries where these limits are even more strenuous than that.
Let’s also put onto the table that even in the United States, which is generally acknowledged to have the fewest legal impediments to unfettered free speech, there are still limits, which the government has acknowledged. The old chestnut that free speech does not include the right to (falsely) yell “fire!” in a crowded theater is still applicable (even if the the reasoning in the Supreme Court case in which the comment appeared has been largely overturned by more recent jurisprudence). These limits are few, but they are there, and the over the course of US history, they have been continually reinterpreted by the courts. I imagine this goes on in other countries as well. So anyone who argues (other than philosophically) for a state in which “free speech” was indeed ever unfettered by government expectation is either referring to a point before actual human governments larger than a family unit, or doesn’t much know what they’re talking about.
Let’s also do acknowledge that as a practical matter, “free speech” laws and obligations apply to governments and public institutions, to private institutions rather substantially less (although the government, in the US at least, may try to oblige private institutions to these laws in some manner and through various mechanisms) and to individuals and their private spaces almost not at all. This is also deeply, deeply confusing to many people, apparently.
Finally, let’s make the point that your right to “free speech” does not mean I (or anyone else) is obliged to listen. I can, and often will, walk away if I think you’re spouting nonsense. This is another fact which seems to deeply confuse certain people; the idea that being dismissed or ignored equates to censorship appears to be hardwired in their heads. But it’s wrong, and they’re wrong for believing it, which makes them wrong twice.
With all that as the landscape in which we will walk during this discussion:
Personally speaking, I tend to be, both philosophically and as a political actor, a believer in the value of a robust definition of “free speech” as it applies to governments and public institutions, not just in the United States but worldwide. This belief in a robust definition of free speech means that I acknowledge that hateful, hurtful, triggering and generally awful speech must be given a place by the government in the public sphere. Racists, sexists, homophobes and other assorted bigots cannot have their soapboxes in the square removed — not just for the defensive measure of “and then the government will come for me” but because, simply, I believe in the end you acknowledge a human right to express yourself, even if that other human is wrong, or you don’t. The limits I would place on speech are pretty high and of the “imminent harm” level — exhorting a mob to violence against someone and giving them directions to their house is an example I would give as speech that crosses that line. Short of that: It’s got to be allowed by the government.
But I also place a pretty hard line between the government and everything else. The government has to tolerate your bullshit and give space for it; I don’t. Neither, for that matter, does Twitter, or Facebook or any online social media network or construct not run by the government. I don’t accept the argument that services like Twitter or Facebook blur the line between private entity and public service, regardless of whether they are “free” (i.e., no cost to use); that’s a little like saying my local Kroger’s or Safeway is a public gathering place because anyone can walk through the sliding doors (shopping malls? The same, unless you are in California or New Jersey).
If you want to argue that Twitter/Facebook/etc are in fact “quasi-public” spaces, my first response would be “show me the law.” I doubt there is one there that makes it so. My second response would be “have you asked Twitter/Facebook/etc what they think?” Because I’m reasonably certain that their corporate lawyers would mount a pretty robust argument that they are, in fact, private entities rather than a public good or utility. Their lives become immensely more complicated if they are judged the latter.
Not to mention everyone else’s lives: If the Supreme Court of the United States ruled, for example, that Twitter/Facebook/etc are public services, with regard to the First Amendment, I don’t suspect the ruling would be confined to those specific services; it would probably apply to online sites generally — including this one, as it is housed on WordPress — and what a mess that would be. My own response to such a ruling would likely be to close comments forever, since if I am not allowed to moderate that space I’m responsible for, then I’m just not going to bother having comments. I have standards.
So, no: Twitter/Facebook/etc are not “quasi-public”; they are in fact private entities, and they have a right to dictate to the people on them — as I have a right to dictate to people who comment here — the rules of the virtual road. The First Amendment (and, I suspect, whatever free speech protections that exist in other countries) simply do not exist on these services. Facebook is not obliged to house your bigotry, nor Twitter your harassment of people you don’t like, nor I your bad arguments that offend me in their stupidity. Whether any of us do allow them is up to our own particular levels of tolerance for such things. I myself make it pretty clear what I’m willing to put up with. I don’t think the law needs to “catch up” to this in any way; I’m not a proponent of the government nationalizing Twitter, or Facebook, or, well, my blog.
As for whether the government should protect people from the harm of free speech, well, per above, I don’t believe that speech needs to be curtailed by the government, but let’s also recognize that speech doesn’t occur in a vacuum. Context matters, and government should recognize that speech — even and perhaps especially protected speech — has consequences, and that an appropriate role of government may be to protect speech and to handle the effects of it. What form and shape might that “handling” take? Well, that’s indeed an interesting question, and one that is neither simple nor likely to be resolved in the scope of this entry. But it is a question worth asking and trying to answer. If a government wants to promote free speech — as it should — it should also be ready for what comes from free speech.
On a personal note, it does seem to me that a lot of the kvetching about “free speech” and censorship comes down to people wanting the right to be just plain assholes in every possible situation. Well, fine: You can be an asshole in every possible situation, if that’s a thing you want, and bless your heart. But I do believe that a great deal of free speech is not about what you have the right to say, but what you choose to do. I made a joke recently that (without specific intent on my part) referenced child sexual abuse, and some folks called me on it. I had the right to say “it stays because I think it’s funny,” but what I did was to say “whoops, you’re right, let me fix that,” and to change it to something else funny that didn’t have the same set of problems. I have the right to display visual images of Mohammad; I haven’t because I know that many Muslims dislike that, and I can work with that as part of my world view. I have the right to call trans folks by the gender they are transitioning from, but I would prefer to acknowledge them for who they are rather than who they were. And so on.
The point is that it’s not really difficult to pay attention to the concerns and interests of others and still be able to say what you need to say; I have not found it difficult to do so, in any event (unless you are a complete bigot, I suppose, but, well. I guess you just have to live with that). My point is that I haven’t found my own ability to speak freely — and pointedly — on any subject at all constrained in any real sense by being aware of other people’s concerns. It is slightly more work. But, you know what, one, I’m a writer, this is kind of in my wheelhouse, and two, if a little more work means more people are receptive to what I say because I don’t unnecessarily antagonize them, it’s worth the investment (I do occasionally antagonize people on purpose).
And you may say: But what about the people who demand trigger warnings and that the world revolve around their sensitivities? Well, personally, trigger warnings don’t really bother me, in part because, look, if you’ve had trauma and reading what I wrote (or what I’m pointing you to) will cause that trauma to revisit you, I think it’s reasonable for you to know that ahead of time. I don’t think trigger warnings are a demand that the world revolve around you; they might be a simple recognition that you exist in the world, which is a different thing. Likewise, I don’t think everything has to be tailored to the people who have triggers or other concerns, but letting them know they might want to route around things is fine. This is, I don’t know, courtesy? Courtesy seems okay to give.
I’ll close by noting that obviously this piece speaks only in broad strokes — as noted, speech is not a free-floating concept; it’s heavily embedded in the real world and all its complexities. Anyone who tries to separate the two of them is showing they don’t really understand the issue. With that said, I think it’s possible to be a free speech maximalist and someone who understands that with the right to free speech comes a responsibility to consider one’s speech. Rights are what one can do; but it’s what one should do that is equally important.
(There’s still time to ask questions for 2015’s Reader Request Week — get your requests in here.)