10 June 2015

A free speech primer

I see a lot of debates online about what free speech means, or what it should or should not apply to in legal terms, or confusion about what constitutes "speech" and what constitutes an action (menacing, harassment, etc). I will just park this here so I don't have to write about it again for a while.

1) Free speech does not mean that you have the right not to be disagreed with. If other people (even other people working in some level or branch of government) have called you an idiot/bigot/racist/sexist/asshole for what you have said, this is not censorship. This instead means they don't like what you had to say. For various reasons. Free speech also doesn't mean you have a right to be listened to or can compel other people to listen by commanding air time or internet op-eds that others will have to publish. It's called "free speech". It's not called "everyone has to listen to what I say and agree with it!, for I am of the belief that I am wise and know all things about which I speak!"

2) If other people are offended by what you have to say, this does not mean they should have the right to use legal force to silence you. It might mean that you should think more carefully about what you are saying, or whether what you are saying contributes meaningfully to some intellectual discourse or other going on into which you have strayed and presumed to contribute. Or that what you had to say was in fact sexist/racist/idiotic or otherwise deliberately insulting (as with ad hominem arguments). Or it could mean your interlocutors don't know what they're talking about or are easily offended, or have misread or misinterpreted your arguments. Meaning you should still think more carefully about what or how you communicate.

But it doesn't mean that anyone should have the power to use the authorities to compel you to be silent on this or some other topic. "PC policing" is not the same as using actual police. It's neither as rigid and inflexible as involving the state nor as likely to have permanent consequence on your behavior and freedom.

What it most likely means is some (increasing) number of people will find you annoying and be less and less inclined to listen carefully to what you have to say.

Note also that nothing involved in being an annoying or offensive person implies that the other person has some right to commit acts of physical violence and intimidation to prevent you from speaking further upon some topic or other. They do not. Inciting or commanding others to riot or acts of violence in a directly involved way and "fighting words", direct personal insults of a vaguely defined and extremely rarely invoked legal terminology, are not protected. Being generally offensive or even bigoted is however, perfectly legal.

3) Being an asshole online is still a protected form of speech (so far). Hyperbolic threats are a commonplace routine, among other forms of repugnant methods to try to either intimidate others into silence or to signal some degree of ludicrous seriousness over some topic or other. Just because these are legal, does not make them wise or even morally sound to use. Sometimes being an asshole is important. And sometimes communicating a point matters more. The level of judgment involved in many blog comments, blog posts, op-eds, social media threads, and otherwise internet flame wars is typically bordering on little to none.

"True threats" are not protected (they are considered a form of action by causing others to reasonably fear for their safety), but what constitutes these in the digital realm is as yet being worked out still. Some people have very thick skin and still do jobs online and comment widely on the internet in spite of actual threats to their safety (and a host of hyperbolic nonsense). This does not mean the behavior of casual threats is appropriate simply because someone like me would simply shrug with indifference to them. Others are not so lucky or suffer a far greater volume of threats or suffer more serious and determined attempts to silence them through fear and intimidation.

There is a level where this crosses into firmer legal territory than the true threat doctrines; harassment or stalking for example. Restraining orders for specific offenders may be an option rather than blanket protections. Ban hammers on specific commenters or blocking on social media are also options.

4) "Hate speech" is not a legal term. It is highly unclear and uncertain what it would mean if it were ever attempted to be such, and unlikely to be well maintained in some agreed upon manner of what it constitutes. It's very unlikely in my view to be used in a manner that in some way protects oppressed people and more likely to be used to defend existing power structures (blasphemy laws in other nation-states are a prime example). At best this would be a "we know it when we see it" routine that has the same vague protocol as obscenity laws (a variety of state restriction that I do not see a clear purpose for either). Vagueness of law and legal terminology is better to be avoided such that the public understands clearly where the lines may be found. "We know it when we see it" is not a clear and unified standard as what we see and perceive varies widely.

5) Defending the right of someone's use of free speech to air opinions in public is not the same as defending the content of that speech. One does not have to endorse the content or quality of speech (Je suis Charlie style), in order to defend the rights of others to speak in public about topics, even offensive or insensitive topics. In general I prefer having at least a few people around with which I disagree about perhaps many different things. This does not mean I must endorse and agree with everything they say, at any time, or in any setting, and on any topic. What it means is I may argue with them if, when, and where I disagree. That's a central point of having a right of free expression is you may go right ahead and use it back.

6) "Shouting fire in a crowded theater" - is not an argument for restricting speech. Indeed, it isn't even an argument the legal system seems to want to use anymore, given as it was during a wartime repressionary fervor and publicly long-since divorced from its initial meaning ("shouting fire falsely" for instance is rarely included in the quote). Don't use it. It's like the Pascal's Wager of free speech discussions. It's tedious to keep encountering it given how ineffective and useless to any discussion it is.

7) A separate piece of advice, not related to any doctrines of free speech in legal or political philosophy terms, would be to try to leave room for people to change their minds and not nail people to the wall automatically for offensive or nonsensical speech, particularly speech made years or decades ago and not returned to again. This is because we ourselves change our minds over time. We should be recognizing this fact about ourselves in others.

Concurrently, we should not assume that someone's disagreements over some topic would imply to be that they do not care about the topic. It's very likely they might but that they care about different facets or are not as informed, or simply oppose what it is that you subscribe to as a course of action, seeing it as incomplete, incoherent, or ineffective.
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