Limiting Free Speech (52): Government Compelled Speech

The human right to free speech protects people against compelled silence, but can and should it also protect them against compelled speech? I think in general the answer is yes. Free speech guarantees freedom, and freedom in any definition of the word should include both the freedom to do and not to do. Hence free speech rights include both the right to speak freely and the right to remain silent – or, in other words, the right not to be anyone’s coerced messenger. (In general, it’s true that a right to do something also includes a right not to do it. More here).

A sophist might reply: “Isn’t free speech about being allowed to speak your own mind? If so, wouldn’t that leave it open for the government to compel you to utter what is not on your mind, as long as this is not incompatible with what is on your mind?” Precious little of our freedom would be left if this were true. This kind of justification for coercion requires more than the statement that what people are coerced to say is not incompatible with the views of those who are coerced.

So, if we accept that free speech in general includes the right not to be compelled to speak, what about possible exceptions? Are there not some forms of compelled speech that are legitimate exceptions to free speech? Most of us (outside the US at least) have little trouble accepting health warnings on cigarette packaging. The same is true for legal requirements that fundraisers disclose their donors, or advertising rules mandating the display of the total fare – including taxes and fees – in bigger type than other fare information.

However, we can just as well cite examples of legally compelled speech that are much more troubling. Some states in the US requires doctors, under the rubric of “informed consent”, to warn abortion patients that the procedure places them at “increased risk of suicide”. Other US states issue car license plates with religious symbols or messages. I find this difficult to understand: those are two forms of compelled speech that are allowed under US law whereas warnings on cigarette packaging are not, even though the latter are obviously less troubling from a human rights point of view.

Perhaps the factual truth of the speech that is being compelled should determine whether or not the compelled speech is legitimate. In that case, cigarette warnings are OK, but the above cited abortion warning is not. Still, that’s not satisfactory: few of us would want to live in a state that compels us to say 1+1=2 before each meal. And what is truth anyway? Also, what about compelled messages that aren’t about truth, such as the pledge of allegiance?

A much better rule is the following: compelled speech is allowed only if it is necessary and effective in order to protect human rights. Cigarette warnings would still be OK (health is a human right), to the extent that they are necessary and effective (this is an empirical matter). Disclosure requirements for fundraisers would also be OK (democracy is also a human right), under the same conditions. Even false information could then be part of compelled speech, as long as it furthers the cause of rights: one can imagine a situation in which forcing someone to lie to a terrorist can save lives.

A final remark: compelled speech is not always compelled by the government. Someone distributing leaflets in a restaurant, giving the impression that the restaurant owner endorses the content of the leaflets, is also engaging in a form of compelled speech. This form is equally unacceptable, at least as long as the leaflets don’t serve an important human rights goal, and one that is important enough to override the right to free speech and the right to private property of the restaurant owner.

More about the right not to speak. More posts in this series.

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Limiting Free Speech (51): Speech That Intends to Get Someone Fired

What if someone tells an embarrassing or potentially harmful truth about someone else to his or her employer, with the intention of convincing the employer to fire this person? Are we allowed to limit the speech rights of the speaker in question (for example, by way of the imposition of a fine, the payment of damages to the person fired or an order to remove internet pages)? And does it matter if the speaker addresses only the employer or the public at large (perhaps in the former case we’re not really dealing with free speech)?

Take this example:

Appellant Derek Schramm is a parent of children enrolled in a Roman Catholic grade school in Minneapolis. Respondent Zachary Faricy is a teacher at the school. In November 2001, Schramm sent a letter to the school principal and the parish pastor informing them of his suspicion that Faricy “might be a homosexual.” (source)

Let’s assume that we’re not dealing here with incitement to commit illegal acts. Discrimination of homosexuals is often illegal, but many religious institutions are exempt from such a rule. (Whether or not that’s a good thing is another matter, briefly discussed here). Hence if silencing this particular speaker is indeed a warranted exception to free speech then it must be one that’s different from the established exception regarding speech that incites illegal activity.

Let’s also assume that we’re not dealing with libel. Perhaps the target in this particular case is indeed a homosexual and has therefore good reason to fear that his Catholic employer will fire him if this fact about him becomes known. Libel is usually defined as a false claim intended to harm someone’s image and reputation, and so that’s not what our example is about. The intended harm is dismissal of the teacher. Like incitement to commit illegal acts, libel is an established exception to free speech rights, and one that I also want to exclude from the current discussion. What I want to do here is see whether speech that intends to get someone fired and that is neither libel nor incitement to commit illegal acts, should always be protected.

Now, speech that incites employers to fire people does impose certain demonstrable harms: the target’s right to privacy is violated, as is his or her right to a decent standard of living (in the case in which the target may not find another job in the short term). So, a priori we could have an argument here in favor of prohibiting speech that incites employers to fire people. Normally, limits to free speech can be acceptable if they are necessary in order to avoid greater harm to other human rights.

However, if we want to allow limits on speech that incites employers to fire people, would we not also be forced to accept the prohibition of public protest aimed at getting a racist or sexist radio host fired? That seems to go very far. Maybe we can limit the free speech exception as follows: in the Catholic school case the speech was directed at a single person – the employer – whereas in the case of public protest the audience is much larger. Still, that’s not a very promising route. The inciter in the Catholic school case may drum up support among other parents or write to the local Catholic newspaper if a private letter to the employer doesn’t do the job.

It’s true that the nature of the audience and the circumstances in which speech occurs can make a difference – hate speech in an obscure periodical should not necessarily be forbidden, but hate speech in front of an excited mob about to attack someone is different. But the same difference doesn’t apply here I think.

In the case of speech that incites employers to fire people – whether it’s private speech or public speech – I would prefer not to impose limits on speech but rather change the law so that it is illegal to fire people for their beliefs, words or lifestyle. And yes, that may include revoking religious exemptions to employment discrimination. After all, how exactly does it harm someone’s religious freedom if his or her children are educated by a homosexual teacher?

More posts in this series are here.

Limiting Free Speech (50): Harassment of Funeral Mourners

The Phelps family and their Westboro Baptist Church – notorious nutcases and media whores – won an important Supreme Court free speech case. In Snyder v Phelps, the Court decided that the First Amendment protects public protestors insulting dead soldiers during their funeral (“thank God for dead soldiers” was one of the insults directed at the Snyder family).

And indeed, free speech rights do and should include the right to be offensive, obnoxious, insensitive, indecent, disturbing and plain stupid, even if being so causes sincere and predictable discomfort for some. Moreover, the Phelps’ were in a public space and were “discussing” a topic of public interest (the war in Iraq and the permissibility of homosexuality). Those facts make the Court’s decision look inherently sound.

However, things look entirely different when we take some other facts into account. There’s for example the mourners’ right to privacy. Westboro’s picketing was a clear violations of this right. There’s nothing as private as mourning at a funeral, and the mourners are definitely captive: they can’t just go an mourn elsewhere in order to avoid the protest. Westboro on the other hand can easily stage their protests elsewhere: they can for example respect a decent distance. Their speech is not directed at the mourners anyway, but rather at the general public, so speaking outside a buffer zone around the cemetery would not, at first sight, limit their speech. An effort to balance both rights – speech and privacy – should therefore, at least in this case, come down on the side of privacy because the cost to privacy of permitting speech is much larger than the cost to speech of respecting privacy. (And rights have to be balanced; speech is not the most important right but rather one among many equally important rights).

Still, Westboro may disagree. It’s likely that they see their speech as inherently connected to their lack of decency: it’s precisely this lack that creates the controversy and that gives their speech the impact that it wouldn’t have outside of the buffer zone. The problem with this argument is that it confuses the right to freedom of speech with a right to maximum impact speech. And the latter right does not and should not exist. We have a strong right to free speech but no right to maximize the impact of our speech at the expense of other people’s rights.

Limitations of free speech in cases such as these can be argued, not just on the basis of the right to privacy, but also on the basis of the right to health. It’s not outrageous to assume that distress of the type caused by Westboro can lead to health problems such as anguish, depression etc. Again we have a conflict of rights, and again it’s a case in which limitations of free speech would impose a smaller cost – given the alternative forms of speech available – than the health cost imposed by the lack of such limitations.

All of this proves that we are dealing here with a case that’s about more than mere offense. But perhaps it’s also about more than privacy and health. Free speech does not include the right to use other people as mere instruments of your speech. And instrumentalization of this kind is clearly what Westboro is all about. They don’t give a damn about the mourners and use them as a stage for venting against homosexuality (they see dead soldiers as God’s punishment for allowing homosexuality in the U.S.):

the outrageous disturbance of a military funeral is newsworthy precisely because it is such an abhorrent and extreme act.  In essence, the speakers are using the mourners and their vulnerable and sympathetic position as a stage prop to get their message out to a different audience. (source)

And although there is no right to be treated as an end rather than a means, this does seem to be a solid moral principle.

Go here to read about the similar case of residential picketing. More posts in this series are here.

Limiting Free Speech (49): Residential Picketing

Residential picketing is a common form of protest. First you identify someone you don’t like – say an abortion doctor, a bank CEO or a pedophile. Then you find out where she lives, show up with a group of protesters at her home, and stage a long running protest just outside of it. Maybe your group shouts insults or curses every time she goes in or out. Maybe you stay at night as well.

The general rule is that you are allowed to do this. You’re in a public space and you can speak freely, even if your speech is insulting. However, this type of residential picketing can in some cases go so far as to violate the rights of the person who is picketed. Her freedom of movement, her right to privacy and her freedom of residence may suffer. She may feel intimidated, a feeling that forces her to stay at home or away from home. See may feel under siege and no longer safe in the privacy of her home. She may even believe that it’s necessary to move.

The protesters should accept some types of limitation of residential picketing rights when this picketing violates other rights. For example, if they are forced to respect a buffer zone around the residence, then they can still disseminate their message. Their alternatives are much easier and less costly than the alternatives for the person who is picketed. However, they know full well that their message will have a much stronger media impact if it produces some controversy, and harassing someone by keeping her a virtual hostage under siege in her own house is bound to be controversial. Hence they’re not likely to scale down the protest and respect a buffer zone.

The point is that free speech rights are not automatically prior or superior to other rights, especially not if those speech rights are used in such a way that they must violate other rights and that alternative uses are rejected. There’s no hierarchy among human rights and all rights are equivalent. That means that when rights are in conflict with each other, the decision to favor one or the other must take into account the respective costs to one or the other. In this case, the cost to privacy, freedom of movement etc. of allowing free speech is clearly higher than the cost we impose on free speech when we want to protect privacy, movement and residence rights. The protesters can still express themselves outside a buffer zone and in myriad other ways. The person who is picketed can also move to another house, but that is much more costly and possibly futile (given a certain level of persistence among the protesters). The right to free speech does not include a right to maximum impact speech.

The US case law in question is Frisby v Schultz. Something on the related topic of the duty to listen. More posts in this series are here.

Limiting Free Speech (48): Equal Influence, Money in Politics, and “Citizens United”

The US Supreme Court’s decision in Citizens United correctly emphasized the importance of free speech in a democracy. (There’s a thorough discussion of this point here). Free speech serves to expose government corruption and is the means to hold governments accountable to the people. The people also need free speech to deliberate on possible policies and on the respective merits of political parties, candidates and incumbents. The latter in turn need free speech to make their point and attract support and members. And, finally, political assembly, protest and organization require speech.

So it’s fair to say that no democracy can function without free speech. It’s also important, as noted by the Court, that this speech right should not be limited to individuals. Organizations, such as corporations, labor unions, pressure groups etc. should also enjoy this right. They are, after, all, collections of individuals who may want to exercise their free speech rights in common.

However, this is precisely the main problem in the Court’s decision: politics is already heavily dependent on corporate funding. Giving corporations an unlimited right to marshal their substantive resources for corporate political speech would only increase the influence of money on politics. Enormous amounts of money are already necessary in order to win elections in our present-day democracies, especially in the U.S. Candidates have no choice but to accept contributions from those members of society who have the money, and those are generally private corporations. There’s a persistent feeling that candidates can be “bought” and that, as a result of contributions, the interests of large donors receive disproportionate government attention. This may or may not be corruption, but it flies in the face of democratic ideals that tell us that it’s the people who rule, not large donors.

The Citizens United decision seems to make this situation worse by stating that corporations have an unlimited right to engage in political speech and that they can, for example, fund political commercials endorsing or attacking a candidate. As such, this right should not be controversial since it’s part of the right to free speech. However, many people fear, rightly in my opinion, that corporate speech, because it can use disproportionate financial resources, will drown out the voices of everyday citizens and give corporations a role that’s even more important than the one they have already managed to secure for themselves through campaign contributions. Hence some form of limit on corporate spending should be possible. And this applies to both campaign contributions and corporate political advocacy in favor or against certain candidates. Corporations would keep their speech rights, of course, but we would simply limit the amounts of money they could spend on their political speech. In fact, rather than a limitation of speech as such, this is merely a limitation of the amplification of speech.

Now, it’s in the nature of speech in general that some voices drown out others. Some people have more interesting things to say, some are not interested in saying anything, some are better at speaking or are better educated, and some have more resources or time to speak. However, we do generally try to equalize speech in some way, even in ordinary life. We have rules on etiquette and politeness. We think it’s better if people speak in turns, for instance. We don’t allow the best speakers to monopolize everyday discourse. Also, we subsidize education, and one of the reasons why we do that is to give people the ability to speak their minds.

We usually try to do something similar in politics. Democracy is the ideal of the rule of the people. That means that everyone’s influence on politics should be more or less equal. It’s useless to adopt a principle like “one man one vote” if afterwards we allow asymmetrical speech power to dramatically increase the political weight of one vote over another. We know that this ideal of equal influence is impossible to attain, and yet we try to make influence as equal as we can. Limits on campaign spending and financing are part of that effort: a candidate should not be allowed to dramatically outspend other candidates because that would give him or her a disproportionate influence over the voting public. For the same reason, donors should not be allowed to contribute excessive amounts to a single candidate, because then that candidate would be able to outspend other candidates. Now, why not limit corporate advocacy spending as well?

Of course, campaign contributions to candidates as well as spending on advocacy in favor of candidates are clearly acts of political speech, and therefore protected by default. By donating to a candidate or a party, or by funding or producing political advocacy, you state your political preferences. And the fact that this “you” is not, in our case, a private person but a corporation shouldn’t change anything. A corporation is a collection of private persons (owners, directors or shareholders) and they have a right to voice their opinions collectively, using their collective resources, just like other collectives.

However, all this doesn’t mean that we’re talking necessarily about an unlimited right. If corporations or other entities with a lot of resources (wealthy individuals, labor unions etc.) are allowed to donate without limits or to engage in unlimited advocacy, it’s likely that they thereby “buy” a disproportionate share of influence. And this, ultimately and after a certain threshold is passed, destroys democracy. The beneficiaries of their donations or advocacy will receive more attention during the election campaigns, and will in turn give more attention to the interests of their backers once they are elected. During the campaign, it will seem like the beneficiaries of excessive contribution or advocacy have the better arguments because those arguments receive more attention. Simply the fact that a story is “out there” and is repeated a sufficient number of times gives it some plausibility and popularity. There would be no commercial publicity or advertising if this weren’t true. Flooding the airwaves works for elections as well as sales.

However, are we not infantilizing the public with this kind of argument? Is a voter no more than an empty vessels waiting to be filled by those political messages that are best able to reach him? Or can they see through it all and make up their own minds irrespective of what they hear and see? If they see that a candidate receives large amounts of money from a particular company, isn’t that reason enough to vote for the other candidate? The truth is likely to be somewhere in between. People are neither empty vessels for donors, nor objective arbitrators of political truth. And the fact that they can be partly influenced should be reason enough to restrict the political speech rights of those with large resources – or better their right to amplify their political speech. It’s not as if they can’t make their point. It’s just that they shouldn’t be allowed to push their point. Just like we don’t allow a heckler to silence others, or a bully to just keep on talking because he never learned the rules of politeness.

Limiting Free Speech (47): Incitement to Commit Suicide

An interesting story in the press some time ago:

A former nurse from Faribault, Minn., was convicted of two felonies Tuesday when a judge ruled he had used “repeated and relentless” tactics during Internet chats that coaxed two people to kill themselves.

Rice County District Judge Thomas Neuville found that William Melchert-Dinkel, 48, “imminently incited” the suicides of Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Ontario. Drybrough, 32, hanged himself in 2005, and Kajouji, 18, jumped into a frozen river in 2008.

In a 42-page ruling that found Melchert-Dinkel guilty of two counts of felony advising and encouraging suicide, Neuville wrote that it was particularly disturbing that Melchert-Dinkel, posing as a young, suicidal, female nurse, tried to persuade the victims to hang themselves while he watched via webcam….

Neuville, in rejecting the free-speech defense, noted that inciting people to commit suicide is considered “Lethal Advocacy,” which isn’t protected by the First Amendment because it goes against the government’s compelling interest in protecting the lives of vulnerable citizens. (source, source)

I guess that’s correct, even though the case doesn’t really fit with any of the commonly accepted exceptions to free speech rights. We’re not dealing here with incitement to murder or a death threat – standard exceptions to free speech, even in the U.S. And neither is it speech that incites illegal activity – another accepted exception. Suicide isn’t murder and isn’t illegal (anymore). Abstract and general advocacy of crime and violence is – or should be – protected speech, but not the advocacy or incitement of specific and imminent crime or violence if this advocacy or incitement helps to produce the crime or violence. If speech intends to produce specific illegal or violent actions, and if, as a result of this speech, these actions are imminent and likely, then we have a good reason to limit freedom of speech. Examples of such speech:

None of these forms of speech should be protected, and laws making them illegal are perfectly OK. On the other hand, claiming that all politicians deserve to die or that people shouldn’t pay their taxes are, in most cases, forms of protected speech because they probably do not incite or help to bring about imminent lawless activity.

The problem is that none of this is applicable here. Suicide isn’t illegal, and neither is it violence as we normally understand the word. So, the commonly accepted exception to free speech rights that I just cited can’t possibly justify the conviction of Melchert-Dinkel. He did of course advocate, incite and cheer on his victims, and his advocacy, incitement and cheering probably helped to produce their suicides. But a suicide is not a crime or an act of violence. At least not as such. One could argue that the encouragement of a suicidal person should be viewed as a form of murder. And if that statement goes too far for you, you may want to consider the fact that causing someone else’s death is in general a crime, whichever way you do it. Moreover, if the victims in this case were suffering from depression or a mental illness, the state has a duty to provide healthcare, and allowing someone else to worsen their depression or illness to the point that they kill themselves is not consistent with this duty.

So, while the encouragement of suicide in general, the teaching the methods of suicide or the claim that non-suicidal people should go and kill themselves (“you don’t deserve to live”, “why don’t you just go and kill yourself”) are all forms of protected speech, the same is not the case for speech that encourages specific suicidal people to kill themselves.

Limiting Free Speech (46): Lies and False Statements of Fact

Should lies and false statements of fact be protected by free speech laws, or can the speech rights of those who intentionally lie be limited in some cases? The US Supreme Court believes the latter is true, somewhat surprisingly given the often quasi-absolutist nature of First Amendment jurisprudence in the US. In Gertz v. Robert Welch, the Court claimed that

there is no constitutional value in false statements of fact.

There are some obvious problems with this exception to free speech. First, it can’t work unless it’s possible to distinguish real lies from false statements of fact that are simple errors. This means it must be possible to determine someone’s intentions, and that’s always difficult. However, one could claim that a person’s speech rights can only be limited on account of lying when his or her intentions are clear.

That would save the exception, but it wouldn’t undo some of its harmful consequences. People who speak in good faith may still be afraid that their speech will unwittingly come across as false, without their good intentions being absolutely clear. Hence, they may fear that they will run afoul of the law, and limit their speech preemptively. The lies exception to freedom of speech has therefore a chilling effect, an effect which is enhanced by the fuzzy nature of the difference between facts and opinions.

Given these problems with the lies exception to free speech, how could we instead argue in favor of free speech protection for lies and knowingly false statements of fact?

One rather ironic way to do it is to appeal to the metaphor of the marketplace of ideas: free speech is necessary for the pursuit of truth (or, in a weaker form, for the improvement of the quality of our ideas). John Stuart Mill has the canonical quote:

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

As such, this doesn’t really justify the acceptance of expressions of lies. If we need lies to see the truth more clearly, you could also say that we need evil to see the good more clearly, and few I guess would accept the latter statement. However, if we interpret this quote liberally (pun intended), we may get somewhere. We could argue that someone’s lies can motivate others to search for, investigate and disseminate the truth. For example, I think it’s fair to say that holocaust deniers have done a lot for holocaust education. They have given teachers and researchers a hook.

Another reason why we wouldn’t want to prohibit lying, at least not across the board, is the fact that lies are often necessary for the protection of human rights. This is the case that’s made in jest in the cartoon on the right, and is also the origin of the rejection of Kant’s claim that we shouldn’t lie to the murderer inquiring about the location of his intended victim. (I have an older post about the usefulness of lying here).

Obviously, nothing said here implies that lying is generally beneficial or that it should be welcomed and protected whatever the circumstances. If lying becomes the norm, we will most likely lose our humanity. In the words of Montaigne, “we are men, and hold together, only by our word” and our civilization and systems of cooperation would come crashing down if we can’t generally trust each other. However, the general albeit not exceptionless moral good of telling the truth doesn’t translate into a right to be told the truth or a legal duty to tell the truth (and to shut up if we can’t). Mortality and human rights don’t completely overlap.

If lying were to become the normal habit, free speech would lose its meaning. We have free speech rights precisely because we want to share information, opinions and beliefs, and because we want to learn and pay attention to verbal assertions. There has to be some level of general trust that people speak their minds rather than the opposite. Otherwise it’s better if there’s no speech at all, and hence also no right to free speech. Hence, the free speech defense of lying has to be limited somewhere.

That is why, despite the fact that in general there shouldn’t be a right to be told the truth or a legal duty to tell the truth, we do want some cases in which there is such a right and such a duty. Lying is legitimately prohibited in the case of libel, of witnesses testifying under oath, of someone impersonating a doctor etc. But those are cases of different rights having to be balanced against each other: the free speech rights of the liars against the rights of those suffering harmful consequences when people lie (consequences such as bad medical treatment, miscarriages of justice etc.). The duty of government officials and elected politicians to tell the truth is based on the requirement of democratic transparency, and is therefore also a case of balancing rights: democracy is a human right, and democracy can’t function if there’s no transparency and if people in power don’t tell the truth about what they are doing.

Limiting Free Speech (45): Selling Violent Video Games to Children

A recent US Supreme Court ruling invalidated a California law that banned the sale of certain violent video games to children on the grounds that the law violated freedom of speech. The controversy is an old one, and goes roughly as follows. Proponents of laws banning violent media – especially the sale of violent media to children – point to different studies arguing that violence in media promotes violence in real life and that children in particular are at risk of becoming violent adults. Since people have a right to be protected against violence and children have a right not to suffer the psychological harm that purportedly comes from the consumption of violent games, we have here a case of rights conflicting with each other: on the one hand the free speech rights of the makers and sellers of games, and on the other hand the security rights of the potential victims of violent behavior provoked by the consumption of violent games, as well as the mental health rights of the consumers of those games. Hence, one of those rights should give way to the other rights.

Proponents of restrictions of free speech in this case argue that a prohibition of the sale of violent games to children is the best option since the speech value of a violent video game is small, and since producers of such games still have the freedom of “artistic expression” because they can still sell to adults. The cost of limiting free speech in this case is small compared to the gains in terms of physical security and psychological health. And there are precedents such as movie ratings.

The opponents of limitations on free speech can also point to studies showing the absence of an effect on real life violence or even the opposite effect – the so-called “pressure valve theory“. They can also use the slippery slope argument and claim that the sale of many classical works of fiction should then also be prohibited on the same grounds, since they also contain scenes of violence.

The US Supreme court sided with the opponents, unsurprisingly given the near absolutism of free speech protection in the US (only a couple of exceptions to free speech are recognized in US jurisprudence, and expression of violence isn’t one of them).

While I personally find US free speech jurisprudence difficult to accept and generally hypocritical – why can obscene material be censored but not violent material? – I think in this case the SCOTUS decision is probably right. The psychological evidence does not, as far as I can tell, clearly show an effect of media violence on real life violence, and even if there is a small effect, a general prohibition on violence in media probably goes too far, as does a general prohibition on the sale of media containing violence. Even a prohibition on the sale of such material to children is probably too much, even given the fact that children are more impressionable. Violence has many causes, and the “pressure valve” theory has some intuitive appeal (also in the case of pornography by the way). A rating system, allowing parents to do their job, is probably better.

Limiting Free Speech (44): Hate Speech as a Speech Act

As in J.L. Austin’s phrase, “how to do things with words”, we actually do things when we speak. When we use language, we don’t just say things, describe things or communicate, but we also act, very much in the same way as when we pick up a stone or push someone around. When we use language in education we educate people and make better persons. When we apologize we heal people. When we command we make people do certain things. Etc. Now, my argument is that hate speech is a kind of speech act understood in this way, and more specifically it is a form of command. Those who engage in hate speech typically use speech that takes the form of a command, explicitly or implicitly. They want to coerce other people to act in certain ways, and they do this in two ways (usually combined in one single speech act):

  • They want to coerce their (potential) followers to act in certain ways towards hated groups. For example, people proclaiming that homosexuals are sinners are not just describing a reality (or what they believe to be reality) or communicating information about homosexuals (or what they believe to be information). On top of that, they also want other people to avoid homosexuals, to ostracize them, to discriminate them, or even to kill them. To the extent that they succeed, they engage in speech acts, and not merely speech.
  • They also want the hated groups to act in a certain way. In most cases, they want them to go away, know their place, keep silent, change their habits etc. The burning of a cross in the front yard of the only African-American family in the neighborhood is a clear sign that these people aren’t welcome. Again, when these speech acts succeed in driving people away they are more than just speech.

A speech act is an act or an action in the dictionary sense of the accomplishment of an objective, the causation of change by the exertion of power etc. Given that it’s not “pure speech” it’s not obvious that it should be a priori and absolutely protected by freedom of speech. (Just like abuse in private is not merely a private act and shouldn’t a priori be protected by the right to privacy). It’s a form of speech that, like other actions, has real consequences for real people. These people may have rights that protect them against these consequences, such as the freedom to choose a residence, the right not to be discriminated against, the right to life etc. When speech acts violate these rights, there’s some balancing to do and it’s not the case that some people’s right to free speech always takes precedence.

Limiting Free Speech (43): The Consequences of Hate Speech

Some of the consequences of hate speech are human rights violations; others are not. Only the former are good reasons to criminalize hate speech and carve out an exception to the right to free speech. Rights can only be limited for the sake of other rights or the rights of others (more here). Let’s go over the different possible consequences of hate speech and see whether or not they imply rights violations.

Hate speech lowers self-esteem in the targets. People who are repeatedly subjected to hateful remarks or jokes about their race, gender, sexual orientation etc. tend to develop feelings of inferiority, stress, fear and depression. Of course, there’s no right not to be depressed, fearful, stressed etc. Therefore, we can say that hate speech should be protected speech when its consequences are limited to these. These are harmful and brutal consequences, but not harmful or brutal enough to be rights violations. We should be concerned about them and try to do something, but this “something” doesn’t include limiting free speech rights. However, people who are extremely intimidated and stressed and who have a deeply negative view of themselves tend to isolate themselves. Isolation isn’t a human rights violation, but couldn’t we argue that willfully isolating people means violating some of their rights? Isolated people don’t speak, assemble, associate etc. In that case, we could argue for limits on the rights of hate mongers.

Hate speech often has even more extreme consequences. Targets of hate speech may feel compelled to leave their homes and move elsewhere, to quit their jobs, and to avoid certain parts of town and public areas. This is a direct violation of their freedom of movement, freedom of residence, right to work and possibly even their right to a certain standard of living. It’s obvious that the free speech rights of the haters should in such cases be deemed less important than the many rights of their victims.

Hate speech can also means invasion of privacy, for example in the case of repeated phone calls, hate mail, or stalking.

Violations of property rights are another possible consequence of hate speech. Hate speech sometimes means vandalism, graffiti (sometimes even inside the homes of the targets), cross burning in someone’s front lawn etc. These cases of hate speech already start to resemble hate crime.

The line between hate speech and hate crime is even thinner when speech is not just hateful but an incitement to violence. For example, hate speech can provoke race riots; it can help hate groups with an existing tendency toward violence to attract new recruits etc. (a larger group will feel more confident to engage in hate violence). And what if hate speech allows hate groups to gain control of (local) government? That would probably lead to discriminating policies and laws.

This overview of possible and actual consequences of hate speech should concern those of us who care about more human rights than just freedom of speech, and who know that different human rights aren’t always in harmony with each other. In some circumstances, some rights need to give way in order to protect other rights. That’s an unfortunate but inevitable consequence of the value pluralism inherent in the system of human rights.

Limiting Free Speech (41): Crush Videos

In its irresistible march toward the deification of the First Amendment, the U.S. Supreme Court has again decided in favor of free speech absolutism. (And it’s not like I don’t care about free speech). In United States v Stevens the Court ruled that a federal law criminalizing the commercial production, sale, or possession of so-called crush videos was an unconstitutional abridgment of the First Amendment right to freedom of speech. The movies in question are depictions of cruelty to animals, used to satisfy a particular “sexual fetish”. They feature the intentional torture and killing of helpless animals, often by women wearing high-heeled shoes who slowly crush animals to death while talking to them in a dominatrix voice (source).

Let’s assume that cruelty to animals is universally considered a crime. If we can agree on that, we can – I think – also agree that filming a crime and distributing the movie is not, by definition, a crime in itself. On the contrary, it can help solve the crime. Think of the Rodney King video for example. However, if a crime is filmed, and the makers of the film fail to notify the authorities, then they can be considered as accomplices or guilty of criminal neglect. The crime then is the failure to notify the cops, not the act of making a video. The video itself should not be banned or criminalized, only the failure to report a crime.

But we can go one step further. In the case of crush videos, the video of animal cruelty is not contingent to the act of cruelty itself. In other words, the act of cruelty – the crime – would not have taken place had it not been filmed. The precise purpose of the act of cruelty is its videotaping and the subsequent sale of the videotaped cruelty. There would have been no crime had it not been filmed. So, we can reasonably assume that the act of cruelty, the filming of it, and the distribution of the film are in fact one and the same act. It’s therefore wrong to claim that we are dealing here with a simple case of free speech. The speech part of the act – distributing the film – is inseparable from the other parts of the act – cruelty and filming. If you care about the enforcement of anti-cruelty laws, you should make the distribution of such movies illegal and carve out an exception to free speech. If, on the contrary, you allow the distribution, then you provoke, condone or at least accept the existence of cruelty. In the words of Alito – dissenting:

criminal acts … cannot be prevented without targeting … the creation, sale, and possession for sale of depictions of animal torture.

If you enforce anti-cruelty laws, you de facto limit freedom of speech. So, either you take an absolutist position on free speech and you have to allow animal cruelty and violation of the law, or you don’t want to allow that and then you can’t take an absolutist position.

Anyway, free speech absolutism isn’t a widely held position, not even in the Supreme Court. Many kinds of speech have historically been granted no constitutional protection by the Court (“well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem”):

However, in this case, the Supreme Court was not inclined to add an exception for another type of speech, even though the harms caused by animal cruelty perhaps outweigh those caused by obscenity for instance. This disinclination is even less understandable when you consider that in United States v Stevens, Justice Roberts – for the majority – cited the older rationale for prohibiting child pornography, namely that it’s a special case because the market for it is intrinsically related to the underlying abuse. How is the same rationale not applicable in the case of animal cruelty? It seems to me that both child pornography and depictions of animal cruelty fall within the Court’s longstanding jurisprudence that “speech or writing used as an integral part of conduct in violation of a valid criminal statute” (source) is a valid exception to the general rule of freedom of speech.

Limiting Free Speech (40): The Chilling Effect of Political Correctness

A few days ago, a senior US journalist by the name of Helen Thomas expressed the view that Jews needed to “get the hell out of Palestine” and return to their countries of historical origin (she named Germany and Poland, as well as “America”) (source).

Subsequently, a lot of folks expressed the view that she should resign or else be fired (source). She swiftly agreed. Now, forcing someone to resign because of an opinion, however stupid or disgusting this opinion may be, is likely to have an adverse effect on free speech, not only the freedom of speech of the person in question but of anyone else who may believe – rightly or wrongly – that his or her livelihood may be at stake because of certain opinions.

The forced retirement of Helen Thomas is further proof, if any were needed, that it’s still unacceptable, in public discourse, to be wrong in one’s opinions. I find that sad.

Thomas gave voice to an opinion which she then, almost immediately, retracted; no one, in the subsequent debate, defended the substance of her remarks. She was wrong; everybody, including Thomas, agrees on that point, and no real harm was done to anyone but Thomas when the video of her remarks surfaced.

But if you turn out to be wrong, even temporarily, even only once, on a hot-button issue, that’s enough for effective excommunication from polite society. That, to me, is chilling. (source)

(More on the chilling effect and on political correctness). A social chilling effect produced by political correctness may be as effective as state imposed censorship.

Of course, given her age (89), Helen Thomas may in fact not suffer any serious consequences from her forced retirement. But what happened to her can happen to others, and the mere risk of such a thing happening may be enough for some people – those with more to lose – to think again and decide that it’s perhaps better to shut up.

Now, none of this defense of Helen Thomas should be understood as a defense of what she actually said. Here’s a good quote explaining what exactly is wrong with what she said, if that isn’t immediately clear:

why the big deal over batty Helen Thomas? What is so especially offensive about her comments (comments that now seem to have gotten her fired)? I think the answer is fairly obvious. While it is one thing (not a good thing, of course) to argue in euphemism for the destruction of Israel by invoking the so-called one-state solution, it is quite another to advocate for the “return” of Israeli Jews to their German and Polish homelands, not merely because such advocacy is almost comically absurd and cruel (or, at the very least, stunningly ignorant of recent European history) but because this argument denies to Jews what Helen Thomas, and people like Helen Thomas, want to grant the Palestinians: Recognition that they comprise, collectively, a nation.

The Jews, of course, are an ancient nation, a nation whose history took place in a sliver of land called Israel. Helen Thomas’s argument, if you can call it an argument, centers on the pernicious belief that Jews are strangers in a place called “Palestine.” Palestine, of course, is the name that was given by the Romans to the Land of Israel precisely in order to sever the connection between the Jews and their homeland. Helen Thomas, and people like her, are thus soldiers in a (Roman-inspired) war against history. This particular war is not as offensive to most people as the war against the memory of the Shoah, but it is rooted in the same grotesque motivation: To deny to Jews the truth of their own history. (source)

One additional remark: none of this should be interpreted as implying that people’s free speech rights entail a right not to be fired for what they say. More posts in this series here.

Limiting Free Speech (39): From Hate Speech to Hate Crime, the Case of Rwanda

Although I take human rights, and especially freedom of expression, very seriously (I wouldn’t be writing this blog otherwise), I also believe that hate speech can produce hate crime. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. This is called incitement to violence. I do understand the problems with this justification of limits on freedom of speech: it can be abused by those who want to muzzle their opponents. If people react violently to criticism, ridicule or insults, then they may claim – wrongly in my view – that the responsibility for the violent acts lies with those making “incendiary remarks”. You can read my objections against this type of argument here.

Nevertheless, I think there are other cases in which hateful words can turn into hateful crimes. The classic example is Radio Mille Collines, the Rwandan hate radio that called for the extermination of the Tutsi ethnic minority population before and during the 1994 Rwanda Genocide (it infamously swept up the Hutu’s to start a “final war” to “exterminate the cockroaches”):

During the 1994 Rwandan genocide, Radio Télévision Libre des Mille Collines (RTLM) broadcast anti-Tutsi propaganda and called for violence against Tutsis, which many experts believe significantly contributed to the violence. An interesting new job-market paper by David Yanagizawa seeks to determine the precise role that RTLM played in the genocide. Yanagizawa relies on “arguably exogenous variation in radio coverage generated by hills in the line-of-sight between radio transmitters and village” to determine the causal effects of RTLM. He finds that RTLM played a significant role in the genocide: full village radio coverage increased violence by 65 percent to 77 percent. The effects are larger in villages with a large Hutu majority and in villages without access to other information sources i.e. villages with lower literacy rates. In total, Yanagizawa calculates that the radio station’s broadcasts explain 45,000 deaths (or 9 percent of the total death toll). (source)

If this is correct, it’s difficult to maintain the doctrinal position that freedom of speech is always and absolutely beneficial and worthy of protection without exception. Unless of course you claim that freedom of speech is more important than the right to life. I refer to an older post on balancing different human rights.

Don’t get me wrong, freedom of speech is absolutely vital, for many different reasons (some as fundamental as thought itself, see here), and no regular reader of this blog can say that I’m ambivalent about it. But what I do object to is the school of thought that believes free speech is the uppermost value, trumping all others in all cases and all circumstances. Maybe this quote from Isaiah Berlin can help to get my point across:

I came to the conclusion that there is a plurality of ideals, as there is a plurality of cultures and of temperaments. I am not a relativist; I do not say “I like my coffee with milk and you like it without; I am in favor of kindness and you prefer concentration camps” — each of us with his own values, which cannot be overcome or integrated. This I believe to be false. But I do believe that there is a plurality of values which men can and do seek, and that these values differ. There is not an infinity of them: the number of human values, of values that I can pursue while maintaining my human semblance, my human character, is finite — let us say 74, or perhaps 122, or 26, but finite, whatever it may be. (source)

This description of Berlin’s value pluralism is from the Stanford Encyclopedia of Philosophy:

According to Berlin’s pluralism, genuine values are many, and may—and often do—come into conflict with one another. When two or more values clash, it does not mean that one or another has been misunderstood; nor can it be said, a priori, that any one value is always more important than another. Liberty can conflict with equality or with public order; mercy with justice; love with impartiality and fairness; social and moral commitment with the disinterested pursuit of truth or beauty; … knowledge with happiness; spontaneity and free-spiritedness with dependability and responsibility. Conflicts of values are “an intrinsic, irremovable part of human life”; the idea of total human fulfillment is a chimera. “These collisions of values are of the essence of what they are and what we are”; a world in which such conflicts are resolved is not the world we know or understand. … “we are faced with choices between ends equally ultimate, and claims equally absolute, the realisation of some of which must inevitably involve the sacrifice of others”.

Limiting Free Speech (38): Cheering on a Criminal

Can bystanders who cheer on a criminal invoke their right to free speech, or can the government prosecute them and hence limit their right to free speech? An infamous example is public rape, a particularly horrendous crime in which a man or group of men rapes a woman in a public space, for example a bar, while being loudly encouraged by a group of bystanders, most of whom will probably be sexually aroused by the spectacle. The movie “The Accused” offers a classic depiction of such a crime, and is based on a real-life public gang-rape.

The case of cheering bystanders and their right to free speech is similar, although not identical to some other cases that I discussed previously, such as hate speech, speech that teaches the methods of illegal activity, death threats, and incitement to violence. These cases are similar because it’s assumed that all these forms of speech can produce violence or can make violence more likely.

Eugene Volokh, normally very hesitant to allow restrictions on free speech, says that prosecution should be possible

on the grounds that the cheering tends to encourage the criminal and thus constitutes “abett[ing].” “An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.” People v. Avila, 38 Cal. 4th 491, 564 (2006). (source)

In some circumstances, the bystanders are even strict accomplices in the sense that they aid the criminal in his or her actions: their cheering may make it impossible for others to intervene because they seal off the crime scene, or the cheering can include precise instructions. One can also imagine cases in which the criminals wouldn’t have acted if not for the cheering. But even if the bystanders are not strict accomplices in any of these senses, they are surely guilty of criminal failure to assist persons in need. Instead of cheering, they should have called the police. So, in all these cases, the bystanders help the crime occur, even if all they do is vaguely encourage someone. Hence they cannot claim that their right to free speech should protect them against criminal prosecution.

Limiting Free Speech (37): Incitement to Murder and Death Threats

Should a joke about killing the president be protected by the right to free speech and the First Amendment? Or a poll on Facebook asking if Obama should be assassinated? Or a rap song about “killing a cop”? Or do such things cross a line beyond which the government can intervene, can limit the freedom of speech of those involved, and can punish them for having committed a crime? I would say: it depends.

In US jurisdiction, the Brandenburg v. Ohio case stipulates that abstract advocacy of violence is protected speech under the First Amendment. However, it is equally acceptable, also according to Brandenburg v. Ohio, that speech which incites imminent, illegal conduct – including violence – may itself be made illegal:

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

So, advocacy of violence can only be prohibited when there is clear incitement of an imminent violent act, as well as the likelihood that this incitement produces or helps to produce such an act.

In the specific case of death threats, the Supreme Court case is Watts v. United States (1969). There it says that only true threats aren’t constitutionally protected; mere hyperbole, humor or offensive methods of stating political opposition are protected. What is a “true threat? According to Virginia v. Black (2003),

a statement can’t be a punishable threat unless it’s made “with the intent of placing the victim in fear of bodily harm or death.” Thus, following Black, a statement is a punishable threat only if a reasonable listener would understand it as a threat of attack and the speaker intended that the listener get that impression. (source)

Personally, I wouldn’t place too much weight on the second clause in that last sentence (after the “and”). I think it’s sufficient that the listener gets the impression of a threat and that the threat produces reasonable fear, even when the person stating the threat didn’t really mean it and was just joking (hence no real “intent”). So a joke about a bomb while on an airplane shouldn’t be protected, while a joke on the radio about killing the president should be protected, because the president or anyone else would probably not take it very seriously. The context of the threat is important. Even when there is clear intent and therefore not just a joke, but no likelihood of the threat being carried out, I would also propose to protect freedom of expression. The main focus is on the reaction of the reasonable recipient and the risk to which he or she is exposed (this focus contains a subjective and a factual element: perception/reaction and factual risk).

Limiting Free Speech (36): Are Restrictions on the Financing of Political Campaigns a Violation of Freedom of Speech?

Whether or not, to what extent and it which manner the law should regulate the financing of political parties, candidates and campaigns, is a difficult question for democracies. Two democratic values –  freedom of speech and equal influence – seem to be incompatible.

Equal Influence

On the one hand, a democracy adopts the ideal of “one man, one vote“. That means that everyone’s voice should have equal weight, and every person should have equal influence in the decisions on who gets elected and which laws are passed. If you don’t want people to have equal political influence, you don’t adopt the principle of one man, one vote. Then you give some people more votes than others or you just exclude some people from the right to participate in elections.

Restrictions on party financing – such as maximum amounts for donations, prohibitions on donations by corporations etc. – are designed to enforce equal influence (or better promote equal influence, because other elements beside money can give some people more influence than others – talent for instance). If rich people or rich corporations are allowed to donate without limits, it’s likely that the political beneficiaries of these donations will give more attentions to certain interests than to others and that the ideal of equal influence recedes into the background.

What is necessary is that political parties be autonomous with respect to private demands, that is, demands not expressed in the public forum and argued for openly by reference to a conception of the public good. If society does not bear the costs of organisation, and party funds need to be solicited from the more advantaged social and economic interests, the pleadings of these groups are bound to receive excessive attention. John Rawls

Freedom of Speech

On the other hand, democracies, by definition, care a lot about human rights, including freedom of speech. It’s impossible to imagine a democracy functioning without freedom of speech and many other human rights. The problem is that party financing and political donations are clearly acts of speech. By donating to a party, you state your political preferences.

Restrictions on political financing are restrictions on freedom of speech in another way as well. Take the case of “Hillary: The Movie“, an unbelievable piece of shit attacking Hillary Clinton. As all pieces of shit that have taken the form of speech, it should be protected by the First Amendment. Freedom of speech doesn’t only protect thoughtful and interesting speech. And yet the distribution of the movie was hampered by the threat of fines. The Bipartisan Campaign Reform Act of 2002 – also known as the McCain-Feingold Act – bars corporations or labor unions from financing the broadcast of election messages before elections. The movie in question violated this rule. And it’s a sensible rule from the point of view of equal influence. If you allow people with deep pockets to flood the airwaves with biased messages – especially around election time – you are likely to influence the outcome of the elections in a way that favors the interests of those deep pockets. Most democracies have rules like this in place.

So not only direct donations to parties or candidates can be restricted, but also the indirect use of funds for the benefit of parties or candidates. Restrictions on funding the broadcast of political views is even a more direct restriction on freedom of speech than the restrictions on donations to parties or candidates.

The question now is whether these are legitimate and acceptable restrictions on freedom of speech. The U.S. Supreme Court will soon decide on this, and is likely to throw out all restrictions.

It’s not a simple question of free speech against democracy. These two ideals aren’t contradictory. Democracy needs free speech, so limiting free speech for the sake of democracy doesn’t make a lot a sense. However, democracy doesn’t just need free speech, it needs some level of equal freedom of speech. If the voices of the strongest always silence the voices of the weaker – the less talented speakers, the shy, the people without money to buy advertising time, to finance “movies” or to “buy” politicians – I think it’s fair to say that we have strayed a long way from democracy. One person’s right to free speech shouldn’t overwhelm another’s right. It’s a fundamental principle in the whole system of human rights that these rights are equal rights. In a way, this is similar to the problem of the heckler. In this post, I defended heckling as a legitimate exercise of the freedom of speech, on the condition that it doesn’t destroy someone else’s right (the heckled in this case).

On the other hand, you could say that unlimited financing rights promote rather than destroy equal influence and equal rights. For two reasons. If donations are widespread, the risk that politicians become dependent on particular private interests and start to favor certain elements in society, is diluted. And there’s also the fact that incumbents usually have no problem getting their message across. They have easy access to the media. Challengers on the other hand often need relatively large sums of money to do the same. Restrictions on financing could favor incumbents. However, unlimited financing rights – because they are unlimited – benefit incumbents and challengers equally. So this argument based on the needs of challengers unwillingly makes the case in favor of regulation.

It seems that everyone is in favor of some kind of regulation. It’s the precise nature of regulation that is contested. I’ve proposed a system here.

Limiting Free Speech (35): Publishing Lists of Pedophiles on the Internet, Ctd.

A follow-up from this previous post on the same subject. We should of course do our utmost to protect people, and especially children, from sexual predators. In the U.S., and to a lesser degree elsewhere, “utmost” means publishing so-called “registries” of sex offenders on the internet. These registries contain the names, addresses and offenses of people convicted for sex crimes. The purpose of the registries is to inform people about the whereabouts of convicted sex offenders and allow them to take measures to protect their children. (A few examples of registries are here, here and here; some of those are government sites, others are not).

By definition, since the purpose is protection, these registries should contain only information on people who are likely to offend again, and to offend in a way that is dangerous to children (and possibly adults). People who have been convicted in the past but are not deemed to be possible repeat offenders, or people convicted for sex crimes that are not dangerous (flashers for example) shouldn’t be included, but regularly are.

These registries are an exercise of free speech. The question here is: should they be allowed, or are they doing more harm than good? In other words: should this case of freedom of speech be restricted in order to protect other rights? (we’ve seen before how human rights can be limited when they come into conflict with other human rights). Which other rights could possibly be harmed by this exercise of free speech? One could say the right to privacy of the offenders (it’s not because you’re a convicted criminal that you automatically lose your right t privacy). But that’s not obvious. Someone’s address and criminal record aren’t private information. So registries of sex offenders aren’t, by definition, violations of the right to privacy. Hence, the right to free speech of publishers of such registries can’t be limited because of the right to privacy of the offenders.

But there are other reasons why the rights of those publishers can be limited. Registries can (and did) lead to

  • harassment of offenders, violent attacks and even murder
  • ostracism, including their family members and children (some registries even have button to print a mugshot that can be posted on the offenders’ doors)
  • violations of their right to freely choose a residence: they are either chased away, or legally prohibited from living near certain places (schools, playgrounds…); sometimes these prohibitions are so restrictive that people are forced to be homeless (in Miami, exclusion zones have created a camp of homeless offenders under a bridge)
  • violations of the right to work: people whose names are in registries are often fired from their jobs or have difficulties finding a job.

These are obviously rights violations that are serious enough to at least make us consider whether the right to free speech of the publishers of registries should be maintained.

And even the right to privacy can become a problem. As noted, addresses and criminal records aren’t private. However, many registries contain a lot of “noise” – people who do not pose any threat (some U.S. states requires registration of people who have visited prostitutes, who have had consensual sex as teenagers etc.). Not only does this label harmless people as “predators”, with often devastating consequences for them. Another result of this noise is that the registries become useless. As a consequence, those who defend the registries ask for more information to be included so that they can judge which “predator” is a real one:

I agree that a man who exposes himself to a woman may not pose the same danger as a convicted child-molester or rapist. All represent a threat, however, so the solution is thus not less information but more detailed information. Give me the facts about the offence and let me decide the level of risk to me and my family. As the parent of two young children I would like to know who my neighbour is going to be before I buy that new home. Adrian Kendall

Taken to its logical extreme, such a view will defend putting everything “bad” about everyone in a super-register. Perhaps registries could be used on a need-to-know basis only.

Limiting Free Speech (34): Pornography and Sexual Violence

In this older post I mentioned the possibility that pornography causes sexual violence, and that this violence could be one of the justifications for prohibiting or limiting pornography, and hence for limiting one form of free speech. (The physical integrity rights of the victims of pornography induced sexual violence outweigh the rights to free speech of pornographers and their clients). I also cited some scientific research corroborating the link between pornography and sexual violence.

Now I came across some evidence pointing in another direction. Large increases of internet use of the last years, together with a proliferation of websites offering free porn, should, in theory, lead to a large increase in the numbers of rape. But that isn’t the case.

The rise of the Internet offers a gigantic natural experiment. Better yet, because Internet usage caught on at different times in different states, it offers 50 natural experiments. The bottom line on these experiments is, “More Net access, less rape.” A 10 percent increase in Net access yields about a 7.3 percent decrease in reported rapes. States that adopted the Internet quickly saw the biggest declines. And, according to Clemson professor Todd Kendall, the effects remain even after you control for all of the obvious confounding variables, such as alcohol consumption, police presence, poverty and unemployment rates, population density, and so forth. Steven E. Landsburg (source)

Another study:

A vocal segment of the population has serious concerns about the effect of pornography in society and challenges its public use and acceptance. This manuscript reviews the major issues associated with the availability of sexually explicit material. It has been found everywhere it was scientifically investigated that as pornography has increased in availability, sex crimes have either decreased or not increased. (source, source)

So it seems that the opposite is true: more porn = less rape. Maybe porn is a substitute for rape. In which case, one of the justifications for restricting the free speech rights of pornographers collapses. However, I mentioned in my old post that sexual violence isn’t the only possible reason to limit the rights to free speech of pornographers. Pornography can, for instance, perpetuate discriminatory gender roles. And the quote below shows that there is some evidence that pornography increases the likelihood of re-offending:

In this study, we examined the unique contribution of pornography consumption to the longitudinal prediction of criminal recidivism in a sample of 341 child molesters. We specifically tested the hypothesis, based on predictions informed by the confluence model of sexual aggression that pornography will be a risk factor for recidivism only for those individuals classified as relatively high risk for re-offending. Pornography use (frequency and type) was assessed through self-report and recidivism was measured using data from a national database from the Royal Canadian Mounted Police. Indices of recidivism, which were assessed up to 15 years after release, included an overall criminal recidivism index, as well as subcategories focusing on violent (including sexual) recidivism and sexual recidivism alone. Results for both frequency and type of pornography use were generally consistent with our predictions. Most importantly, after controlling for general and specific risk factors for sexual aggression, pornography added significantly to the prediction of recidivism. Statistical interactions indicated that frequency of pornography use was primarily a risk factor for higher-risk offenders, when compared with lower-risk offenders, and that content of pornography (i.e., pornography containing deviant content) was a risk factor for all groups. The importance of conceptualizing particular risk factors (e.g., pornography), within the context of other individual characteristics is discussed. (source)

Limiting Free Speech (32b): Talking Back to the Cops

US cops, acting on false information given to them by “concerned bystanders”, busted Henry Louis Gates for trying to force his way into his own house and for consequently reacting to the cops in a way that supposedly amounted to “disorderly conduct”.

First of all, I don’t intend to dig up the details of the case or pronounce moral judgment on either Gates or the cops. Probably both had good reasons for their conduct – I don’t know, I wasn’t there. Racial profiling is a cancer in society, and when someone like Gates is confronted with it, I understand his anger and perhaps his sense of responsibility to react to it. Given his moral stature in the community, I think it’s even likely that he used the occasion to react in an overly theatrical way in order to get a point across, hoping that the fact that he was doing it on his own property would shield him against arrest. Or perhaps hoping the contrary. If so, he certainly succeeded. The police officer, on the other hand, was probably also doing what he thought was his job and it’s unlikely that he was racially motivated.

But I don’t know any of this. So I’ll cut out the speculation and go on to the substantive theoretical point: should people, when confronted by the police, have a right to speak up, possible even in a “disorderly manner”, i.e. high pitched voices and rude language? I think that’s the case, at least in most circumstances (and so does the US judiciary).

Many cops are overly sensitive to people talking back. It undermines their authority, and a quick move with the handcuffs does wonders to restore it. Of course, people talking back can also be dangerous for cops, since talking back can escalate to violence. I think cops should be able to make the distinction between people talking back because they have a genuine grievance, and other people who simply talk back because they know it can serve them well when they are able to undermine the police action.

This means that cops can, and should be able to, use their discretion when deciding that someone should or should not be able to exercise their freedom of speech. Of course, there’s always the possibility to have this discretion reviewed by a judge afterwards. But that discretion is conditional on the cops’ training. They should have thick skins. That’s an elementary requirement for being a cop. Having thick skin means that you don’t automatically consider talking back as an affront to your dignity and authority as a cop. In other words, it means that you can distinguish between, on the one hand, justified talk – i.e. the expression of rational (but not necessarily justified) grievances, even if they are not expressed in a rational way – and, on the other hand, possibly dangerous talk.

Respect and honor are important, but we all know what happens when we require too much respect and when our honor has the strength of egg shells. It’s inherent in the job of a police officer to have people talking back. As a police officer, you don’t tell people what they want to hear, and you tell it to them when they’re in personally difficult circumstances. You annoy them, almost by definition. Hence, reactions and abuse are part of the job. Going around and arresting everyone who talks back to you would be quite difficult, if not impossible. Try to talk them down. Verbal skills, like thick skin, are part of your cv. Sure, you deserve respect, and people who have grievances should address them to you in a civilized manner. But freedom of speech extends beyond civilized speech.

Also, a lot depends on the circumstances in which the talking back takes place. In the Gates case, it appears that events took place on the property of Gates. It would  have been quite different if a lonely cop was taking abuse from a crowd of people in a down town area, even if the words being uttered were exactly the same.

So it seems that there can be no clear rule for or against the right to talk back. (Bill Easterly has a nice post on “inflexible rules“). We should allow cops to use their discretion, but we should also train them to do so. Civilians have the right to free speech, even abusive speech, but should accept that this right is limited in certain circumstances.

One more point: it has been observed in psychological experiments that allowing people to vent defuses a situation and makes it less dangerous. Shutting people up just multiplies their frustations, and a violent explosion becomes more likely.

Limiting Free Speech (32): Hate Speech in Canada

In Canadian law and jurisprudence, the definition of hate speech as a form of speech that falls outside the protection of the right to free speech, is quite different from the definition in the U.S. And quite different as well from what I personally think is correct. I believe Canada is on the wrong track in this respect, and should move closer to the U.S. view.

In the U.S., the two main Supreme Court cases defining the rules concerning hate speech, are Brandenburg v Ohio and R.A.V. v St Paul. Hate speech in the U.S. can only be punished when it is likely to incite imminent lawless action. This is consistent with my personal view that human rights can be limited solely for the protection of other rights or the rights or others.

In Canada, however, it’s not the likelihood of actual harm than can turn speech into prohibited hate speech. The expression of hatred, irrespective of the possible consequences of this expression, is considered a crime. The content itself is the crime, not where it may lead. Canadian law and jurisprudence (see here for instance) assume that hate speech in itself, independent from its consequences, inflicts harm on a plural and tolerant society. The objective of Canadian hate speech laws is not only the prevention of harm to individuals and their rights, but also the protection of the kind of society Canada wants to be.

Obviously, Canadian society deserves protection, as does tolerance in general. But it’s quite another thing to claim that this protection requires content-based hate speech laws. I don’t think content as such should ever be the sole test of whether to protect speech or not. The (possible) consequences for the rights of others should be the main criterion, together with intent.

Limiting Free Speech (31): Speech That Incites, and Teaches the Methods of, Illegal Activity

This is a follow-up from two previous posts on the same subject (here and here).

In Brandenburg v. Ohio, the Supreme Court held that abstract advocacy of lawlessness and violence is protected speech under the First Amendment. Even in a society based on laws, people should be free to express disagreement with the law and call on others to break the law (inflammatory speech).

I think that’s generally acceptable and fair. If someone believes that smoking dope shouldn’t be a crime, and carefully describes to his or her readers how to cultivate and use the drug, then he or she should be permitted to do so. The crime is drug use, not the description of or incitement to use drugs. The same is true for a more extreme example, such as the infamous book called “The Hit Man Manual” (see the Rice v. Paladin Enterprises case). Also, we don’t want to ban chemistry books because someone may use them to build a bomb.

However, it is equally acceptable, also according to Brandenburg v. Ohio, that speech which incites imminent, illegal conduct may itself be made illegal:

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio

If speech intends to produce illegal actions, and if, as a result of this speech, the illegal actions are imminent and likely, then there is a reason to limit freedom of speech. In the words of Justice Black (who was, by the way, something of a first amendment absolutist):

It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.

When speech acts contribute substantively to criminal acts, the speech acts are considered to be “aiding and abetting”.  The fact that “aiding and abetting” of an illegal act may be carried out through speech is no bar to its illegality. (source)

The justifications for free speech that apply to speakers do not reach communications that are simply means to get a crime successfully committed. K. Greenawalt in “Speech, Crime, and the Uses of Language”

Aiding and abetting a crime can be criminal in itself, even if it takes the form of the spoken or written word. The First Amendment doesn’t provide immunity from prosecution because someone uses speech or the printed word in encouraging and counseling others in the commission of a crime.

Volokh has given the following example:

A Virginia woman has been arrested for blogging about the members of a local drug task force. The charge is harassment of a police officer. She apparently posted on the blog one officer’s home address, as well as photos of all members of the task force, and a photo of one officer getting into his unmarked car in front of his home….

Photographing, writing about, and criticizing police officers, even by name, should of course be legal. But it’s a tougher call when the officers in question work undercover. Naming them, posting their photos, posting their addresses, are all pretty clearly efforts to intimidate them, and it isn’t difficult to see how doing so not only makes it more difficult for them to do their jobs, but may well endanger their lives….

When may speech be restricted because it provides others with information that may help them commit crimes? Here, the information may help people kill police officers, or at least conceal their crimes from police officers (once the undercover officers’ covers are blown). (source)

However, this doesn’t mean that all inflammatory speech or every publication and distribution of instructions on how to act illegally, can be suppressed and made illegal. The “Brandenbrug test” has to be successful first, which means that there has to be more than mere intent. There has to be incitement of an imminent lawless act, as well as the likelihood that this incitement produces or helps to produce such an act.

Limiting Free Speech (30): The Heckler’s Veto

Should someone in an audience – or an entire audience for that matter – have the right to silence a speaker by way of hostile and loud reactions? Or is this a case in which the right to free speech of an audience or someone in an audience can be restricted? In the U.S., “heckling” as it is called does not violate the right to free speech of the speaker who is being heckled. The First Amendment only protects speech from government infringement, not from private infringement (“Congress shall make no law…”). In this case, the heckler is presumed to be a private person, and his or her actions therefore cannot violate the First Amendment.

I believe that this is an American anomaly, and that people’s right to free speech should be protected against both government and private infringement. Private individuals can also violate someone’s right to free speech.

Still, let’s return to the case of heckling in the U.S. Audiences have a right to heckle, as they should have. The leading judicial decision here is In re Kay of the Supreme Court of California. This decision overturned a 4 month prison sentence for hecklers who had shouted and clapped during a speech by a member of Congress.

The Court granted the right to heckle and stated that this is a legitimate part of the “cacophony of democracy”. Even though heckling and booing and shouting and other types of disruption may be uncivilized, impolite and often stupid, it’s free speech and it should be protected.

But at the same time, the Court allowed the state to punish hecklers when their disruption results in the impossibility to continue a meeting or a speech. The right to free speech of the hecklers has to be balanced against the right to free speech of the heckled. One right shouldn’t be allowed to destroy the other right.

Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship. In re Kay

I think the Court got this one absolutely right. And it seems that there’s a recognition that the state isn’t the only threat to free speech.

Limiting Free Speech (29): Cross Burning

Cross burning is a typically, if not uniquely American type of “speech”. It’s the quintessential expression of hatred of African-Americans. The usual culprits are members of the Ku Klux Klan or KKK (and copycats). Historically, cross burning has been a signal of impending violence and terror. It was often a morbid prelude to lynchings or other acts of racist violence.

Nowadays, cross burnings are relatively rare, and intended to intimidate rather than signal the first step in actual violence. Nevertheless, given the history of cross burning, present-day occurrences understandably continue to instill a real sensation of fear and panic in the intended targets. Which is of course the intention.

The question is: should cross burning be considered as a form of speech that merits the protection of the freedom of speech (the First Amendment in the U.S.), or should it rather be an example of hate speech that can and should be made illegal?

If we focus on the U.S. for the moment, then the leading Supreme Court case is Virginia v Black. This case deals with 2 different criminal cases of people convicted for cross burning. In one case, an argument escalated and two defendants burned a cross in the front yard of their African-American neighbor. The other case involved a cross being burned in the garden of a member of the KKK during a private KKK “party”. The burning cross, however, could be seen by the general public.

Virgina v Black protects cross burning as a form of free speech, but also provides the possibility to make it illegal under certain circumstances (as we’ve seen many times before in this blog series on limiting freedom of speech, the circumstances are always important). And, according to Virgina v Black, the circumstances which would make it possible to restrict freedom of speech in the case of cross burning are not limited to those which can normally restrict freedom of speech in other cases. Speech acts that produce an imminent danger of physical violence, acts that result in reckless endangerment (in this case the risk that the act evolves into an arson attack), or speech acts that lead to trespassing are not protected by the First Amendment. Physical violence, arson and trespassing are illegal, and the fact that they are combined with a speech act doesn’t make them legal. If a speech act is combined with such illegal acts, or is likely to lead to such acts, then the speech acts are not protected by the right to free speech.

According to Virgina v Black, the circumstances which can make cross burning illegal go beyond this and include the intent of the speaker to intimidate and terrorize specific and identifiable persons, even if these persons are not in immediate physical danger. And cross burnings today usually doesn’t result in physical danger.

Now, you could say that cross burning is by definition intended to intimidate, but that’s not the case. Not all cross burnings are intended to intimidate – take the example of the KKK party cited above – and not all cross burnings are equally intimidating. It depends on the circumstances in which the cross burning takes place, and on the fact if it is clearly targeted against certain individuals. If the cross burning takes place close to the homes of African-Americans, and are part of a long chain of intimidation and racist incidents, then they are more intimidating than in other cases. And more intimidating means a higher risk that the rights of the targets will be violated. The African-Americans may feel forced to move, which violates their right to freely choose their residence. They may feel that it is necessary to keep their children away from school, which is a violation of their right to education, etc. In such cases, the right to free speech of the KKK members should obviously be restricted for the benefit of the rights of their targets. But in other cases, they may be allowed to wallow in their silly hobby.

I think Virginia v Black strikes the right balance. For another Supreme Court case on cross burning, see here.

Limiting Free Speech (28): Free Speech at Work

Should people be allowed to enjoy an unlimited right to free speech at work, and be able to ask courts to undo measures (such as sacking or disciplinary measures) which their employer has taken against them as a result of their speech? Or do corporations and government agencies have a right to take measures against employees engaging in certain types of speech, a right which therefore trumps the right to speech? And is there a difference between the rights of corporations and the rights of (certain) government agencies?

I could make this brief, and say that employees are citizens like all other citizens, and should have a right to free speech. I could say that, if there are any possible and acceptable (or necessary) limitations on the right to free speech, they have nothing to do with the fact that those engaging in speech act as employees or as citizens. I could say that the place where people speak – at work or elsewhere – doesn’t change anything.

Unfortunately, I can’t. The place where speech takes place does matter, as I have mentioned already in the case of hate speech (hate speech in front of an angry mob gathered at the house of a pedophile is different from the exact same speech written down in a book almost no one reads).

As I will argue, the same is true in the current case. Speech at work may be treated in another way than speech elsewhere. There are some good reasons to impose stricter limits on speech at work than on speech in general. Employers therefore also have the right to take certain measures against employees engaging in speech which may be restricted (in fact, these measures are the restrictions). Also, certain government agencies can impose more and wider restrictions than private corporations. All these restrictions on the freedom of speech are possible because they are necessary for the protection of other rights or the rights of others (I try to make this a general rule when discussing restrictions on human rights, see here).

But before I argue this, I want to sketch the baseline first. Free speech is very important, and I don’t think there are many people who believe this more than me (as any regular reader of this blog knows). As government agencies, but also private corporations, regularly violate human rights, free speech at work is perhaps even more important than free speech in general. People working for agencies or corporations engaged in rights violations, must have the right (and the possibility) to denounce these practices. So, if I argue for the right of corporations and agencies to restrict, in certain cases, the right to free speech of their employees, I have to be careful to do so without jeopardizing the important rights of whistleblowers.

The U.S. Supreme Court, which allows government agencies to limit the freedom of speech of their employees, also acknowledges the importance of whistleblowers. When the speech in question is of “public concern”,* the Court uses a higher threshold to uphold speech-related disciplinary measures against employees. (The Court uses the so-called Pickering test). (However, the Supreme Court is still oddly restrictive in this respect. Whereas, normally, free speech is considered to be very important by the Court, in case of speech at work, “public concern” is not enough to uphold the right to speech. It’s just a first threshold to be passed for the Court to asses the possibility of reviewing disciplinary action. When there is no “public concern”, there’s no right to free speech at work according to SCOTUS!).

Now, when and why should the rights of corporations and government agencies to sanction their employees for acts of speech, take precedence over the right to free speech of these employees? Corporations and agencies have a right to function without disruption. A government agency even has a duty to function without disruption, because it serves the public interest. And this interest more often than not includes certain human rights. For example, a government hospital has a duty to protect the healthcare rights of citizens. If speech acts at the hospital disrupt its normal functioning, the rights of citizens may be put at risk. If, in addition, these speech acts don’t have anything to do with the functioning or organization of the hospital, it is difficult to see why they should be more important than the rights of patients. However, if the speech acts uncover serious incompetence at the hospital, the disruption that follows these acts may be a price that is worth paying.

Regarding corporations, the burden of proof on those wishing to impose restrictions on speech at work, is heavier. Corporations usually don’t work for the protection of human rights of citizens, and therefore cannot put these rights in the balance. However, corporations are the property of certain citizens, and these citizens have a right to use this property. Speech acts in corporations can result in disturbances of a kind that makes this use of property difficult or impossible. If, in addition, these speech acts don’t serve any public purpose or address a public concern, it may be justified to consider the right to property more important than the right to speech, in certain cases. For example, should we really accept and protect flag burning during office hours and in office buildings? And who would take sides with an employee wasting huge amounts of company time on frivolous speech?

And there’s another problem with judicial protection of speech at work. Employees may claim that disciplinary measures taken against them (including dismissal) were based on their speech acts, whereas in reality these measures were based on a lack of performance. Employers may become unwilling to take such measures because of the risk of costly litigation. Outspoken but incompetent employees will then be privileged, and others discriminated. Another result: the employer’s authority and ability to organize and lead are put at risk if many of her decisions can be reversed by judges.

* This “public concern” usually means that the speech in question should have something to do with the preferable manner of operating the agency, or should contain information which is vital to proper decision-making. Both definitions of “public concern” cover the activities of whistle-blowers.

Limiting Free Speech (26): Incitement to Violence and Pro-Life Activism

In the margins of the most recent case of political violence against an abortion doctor in the U.S., some people claimed that the media was in part to blame. The doctor in question was indeed publicly vilified on many occasions, and during many years, by certain conservative and pro-life pundits, on television and elsewhere. Especially Fox’s Bill O’Reilly was targeted as having some responsibility. His frequent outbursts against the doctor may have incited the attacker to eventually commit murder. Singling out this one doctor may have made him into an icon of abortion, and putting him squarely in the public eye may have made him the focus of a movement with a history of violence.

Of course, there’s nothing new to discussions about speech that openly calls for violent acts against political, religious or ideological opponents. For example, it was claimed that the infamous Muhammad Cartoons were directly responsible for violent acts against Muslims and/or violent reactions by Muslims. Another example is Radio Mille Collines, the Rwandan radio allegedly responsible for calling on Hutus to go out and murder Tutsi.  Part of the debate around hate speech has to do with speech that is perceived to be incitement to violence.

I generally believe that some circumstances allow for limitations of the right to free speech, although I also believe that this right is of such importance that limitations must be exceptional and carefully considered. I invite you to read my general argument here. Basically, for me this is a problem of contradictory human rights, and of balancing rights so as to avoid the greater harm. In the case I’m discussing in this post, the right to free speech has to be balanced against the right to life and physical security of the people who are the targets of speech (e.g. abortion doctors and others).

The important thing to consider, in my view, is the causal relationship between speech which calls for violence, and the actual subsequent violence itself. Without such a causal relationship, the argument in favor of limitations can’t get anywhere. However, such causal relationships never easy to establish. How do we know to what extent a perpetrator of a violent act was influenced by others calling upon him to act? And that this influence was the main and overriding cause of his actions? In some cases, this causal relationship may be more convincing than in other cases. Mille Collines is probably easier to label as an accomplice in crime than Bill O’Reilly, whatever you think of the content and the style of O’Reilly’s rants. But even in the most obvious cases there is a very large grey area. Human motivation is very complex, influenced by many different things, some of which can go back very far in the past.

However, it’s one thing to determine, after the fact, that someone who said something was partly responsible for acts of violence committed by others. It’s quite another thing to use this responsibility as a justification for limiting speech and thereby preventing future acts of violence. Even if we can, beyond some measure of doubt, agree that there is a causal link between certain violent words and violent acts, this is always and necessarily after the fact, and without much use for the future.

Human affairs are unpredictable. They aren’t in any way like the laws of gravity or the laws determining the movements of objects in space. Previous causal relationships in human affairs can seldom if ever be distilled into laws of behavior. Even if we agree that there was a causal link between certain violent words and violent acts which we observed in the past (and that’s already quite difficult, given the numerous possible causes of human behavior and the difficulty of separating them from each other), this in no way justifies preventive anti-speech measures. Using previous causal relationships between speech and acts as precedents in order to limit similar speech which we feel can produce similar acts, means, in fact, assuming a causal relationship between speech and acts that haven’t even happened yet. And this is, evidently, even more difficult than determining causal relationships between speech and acts which have happened.

If we return to our example, this means that we would limit what O’Reilly can say in the future about abortion doctors. First we assume that Dr. Tiller, the doctor whose murder started this discussion, was murdered in part at least because of what O’Reilly said, and then we assume that if O’Reilly continues to say similar things about other doctors that these too will be murdered. That’s two very tentative assumptions.

I’m personally convinced that incitement to violence can indeed make violence more likely, that free speech can be one of the causes (but never the only cause) of violent acts, and that those who speak or write in public have to take this risk into consideration if they want to live responsible lives. However, I’m not (yet) convinced that it’s possible to find a way to limit freedom of speech so that we can avoid violent consequences, and without doing more harm than we (hope to) prevent. I don’t see how a law limiting incendiary speech can do justice to the crucial differences between cases. Such a law would most likely be overkill and, in addition, create a chilling effect. However, this shouldn’t stop us from calling on all public figures to cut out the hate. Hate and vilification boost the ratings, but they never do any good.

Limiting Free Speech (25): Does Freedom of Religion Require Limits on Freedom of Speech?

The UN Human Rights Council recently passed a Resolution on Religious Defamation. The main concern of the drafters of this resolution is islamophobia, defamation of Muslims, negative stereotyping of Muslims and Islam, and intolerance and discrimination against Muslims. The main targets are, obviously, western societies where, it is believed, “terrorism hysteria” has caused widespread anti-Muslim feelings.

Of course, no one should accept discrimination and intolerance, and even less islamophobic acts of violence. If there is discrimination and violence, then these human rights violations should be countered, wherever they occur, in the West and elsewhere. However, trying to outlaw defamation and stereotyping is a lot more controversial. While such acts are certainly not helpful in any circumstances, it’s not beyond doubt that they are harmful in themselves or that they are the single most important cause of more harmful acts, such as discrimination and violence.

For the proponents of the resolution, this is beyond doubt. Defamation, stereotyping, derogatory speech, blasphemy etc. are all believed to be harmful enough to justify limiting freedom of speech. The resolution clearly proposes such limits. It talks about

the need, in all societies, to show sensitivity and responsibility in treating issues of special significance for the adherents of any particular faith.

The “provocative or regrettable incidents” it mentions are clearly but not explicitly instances of speech rather than the very rare cases of actual violence and discrimination against western Muslims, namely the Danish Muhammad cartoons, the remarks by Pope Benedict, the Rushdie affair, the attempts of some to equate Islam with terrorism etc. The resolution urges

States to take actions to prohibit the dissemination of… material aimed at any religion or its followers that constitute incitement to racial and religious hatred, hostility or violence,

and says that

respect of religions and their protection from contempt is an essential element conducive for the exercise by all of the right to freedom of thought, conscience and religion.

So in these statements, there are two distinct attempts to justify limits on speech that defames and stereotypes Islam:

  1. The first justification is that such speech is hate speech and speech that incites violence and discrimination.
  2. The second is that it restricts the freedom of religion of its targets.

I dealt with the first one before, in this post (where I argued for a very limited possibility to restrict hate speech), so here I’ll focus on the second one. Of course, the second one can collapse into the first one, if the restriction of freedom of religion is supposed to follow from acts of violence that are caused by speech. Acts of violence can indeed restrict freedom of religion, but this argument isn’t valid in the case of Muslims in the West, who have only very rarely been subjected to islamophobic violence and who therefore cannot claim that hate speech and the resulting violence restrict their freedom of religion. If anything, Muslims have more religious freedom in the West than in many Muslim countries.

So something more is meant by the second justification of limits on freedom of speech. It’s not, however, clear what exactly is meant. I haven’t been able to find examples, given by proponents of the resolution, of ways in which speech can restrict an individual’s freedom of religion. These proponents don’t get any further than the general claim that freedom of religion requires laws against defamation, and most likely also blasphemy, and corresponding limitations of free speech.

The question here, of course, is whether freedom of speech can in any way restrict the freedom of religion. If that is the case, then a trade-off has to be made as in all cases in which different human rights come into conflict. But I don’t think that is the case. On the contrary. Freedom of speech is an essential safeguard for freedom of religion.

Now, let’s suppose that there exists, somewhere, a good argument linking defamatory speech and restrictions of freedom of religion, but that I’m just not aware of it (yet). The problem is that, even if defamatory speech can in some obscure way limit someone’s freedom of religion, it doesn’t necessarily follow that in such a case freedom of religion should automatically take precedence over freedom of speech. When two rights come into conflict, it’s often very difficult to decide which one has priority.

Another problem with this undiscovered argument is the vagueness of “defamatory”. Defamation, according to Wikipedia, means the following:

In law, defamation (also called calumny, libel (for written publications), slander (for spoken word), and vilification) is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. It is usually, but not always, a requirement that this claim be false and that the publication is communicated to someone other than the person defamed (the claimant).

Defamation – also libel or slander – is the offense of bringing a person into undeserved disrepute by making false statements. (I already discussed the relationship between free speech and defamation or libel here).

This definition, however, doesn’t help a lot because it doesn’t make clear what is or is not supposed to be considered as defamatory. What is defamatory differs from one person to another. And this vagueness of the concept may have far-reaching consequences. Suppose we agree that there are good reasons to restrict defamatory speech for the sake of freedom of religion. Is it not likely that those who have to enforce these legal restrictions will be tempted to use them to stifle legitimate criticism of religion instead of real defamation? Where is the border between defamation and criticism? Or between defamation and alternative, non-official interpretations of a religion? I guess that there will be a rapid transition from concerns about religious freedom to their exact opposite, namely policies to punish heresy, blasphemy and apostasy, and to criminalize dissent in general. It’s not defamation of religion that harms but the measures taken to defend religions from defamation – or, better, the measures that are claimed to be taken in defense or religion, but more often than not are taken in defense of power.

Limiting Free Speech (24): Political Correctness

Political correctness (or PC) is a form of speech that is characterized by the willingness to avoid offense to certain groups in society, often groups which have a history of suffering and rights violations.

It is a form of speech that excludes certain concepts and phrases that are thought to be expressions of hatred, discrimination and rights violations. Such expressions, it is believed, serve to keep these violations alive and well, and protecting human rights therefore requires the exclusion of these expressions. Examples of these expressions and concepts or phrases are “nigger”, “women should play the main role in the household”, “black people are genetically less intelligent than white people”, “affirmative action is discrimination of whites”, the systematic use of “he” to describe a person, or of “man” to describe a member of the human race etc.

Hence, political correctness is a limitation of free speech that is believed to be necessary in order to protect other rights. Politically incorrect speech is a strategy in the continuation or reinstatement of rights violations, for example discrimination of women, racism, or unequal opportunities. Language determines the thoughts, mentalities and actions of both the speakers and listeners. For example, convictions regarding negative stereotypes are facilitated by the availability and widespread use of pejorative and stereotypical labels. A user of these labels will be confirmed in his or her believes, and a target of these labels will suffer a loss of self-esteem and will, as a result, find it difficult to escape from his or her unequal position in society. Hence, using politically incorrect stereotypes contributes to the continuation of inequality. On the other hand, “outlawing” such stereotypes forces people to think about how they describe other people and forces them to focus on individual characteristics rather than stereotypes.

Proponents of PC believe that language should be used for good purposes rather than bad ones. They don’t want language to be a tool to oppress. They seek cultural change through linguistic change, but this has an impact on the freedom of speech: certain types of expressions, phrases or concepts are off limits according to the proponents of politically correct speech, and other types are mandatory. Speech should be as inclusive and neutral (gender neutral, race neutral etc.) as possible. Hence constructions such as “s/he”, “African-American”, “holiday season” instead of Christmas etc.

PC can be criticized in several ways. I just pick two types of criticism that seem most convincing to me. Politically correct speech is a kind of orthodoxy or an example of dogmatic thinking or group thinking, which is why the concept of PC is mostly pejorative. Politically incorrect speech on the other hand can be seen as rebellious, original and individualistic. It can be very useful in identifying hidden assumptions, prejudices etc. Of course, political incorrectness can become a prejudice in itself, obscuring the need for real debate on some human rights issues.

Whether or not PC is justified depends on the effects of language on rights violations. There is certainly some effect. Especially in the early, formative years, people can be influenced by speech, and can grow up to become persons with mentalities that are inimical to human rights. And they will certainly act on these mentalities. But I believe that the proponents of PC overstate the importance of the causal link. It’s not true that sexist or racist language always and necessarily produces sexism and racism. These rights violations have a myriad of causes. Hence it is dangerous to identify certain forms of speech as the main causes, and consequently “outlaw” them, perhaps not legally but morally. This can result in cultural communism, a totalitarian and intolerant “regime” censoring and punishing dissent and “heresy”. It is not unheard of that people lose their jobs and/or reputation because of a sin against PC.

By the way, one particularly funny instance of political correctness are the annual arguments about Christmas. Christian traditionalists and PC people who think that a Christian holiday may be an insult to other religions, outdo each other in silly talk.

Limiting Free Speech (23): Blasphemy Laws

Blasphemy laws are obviously limitations on the freedom of speech, and in my view, unjustifiable limitations. Blasphemy is a disrespectful or insulting statement about a God or a religion. It’s a kind of defamation or libel of God. (I disregard in the current context the act of claiming the attributes or prerogatives of deity, also a kind of blasphemy).

I never quite understood how people can think that an almighty God can be insulted by statements made by unbelievers, and needs to be protected against such statements by blasphemy laws. And I don’t say this because I’m agnostic. I would say the same thing if I was a believer. I think my God would be able to take it, and I can’t understand the concept of a God who can’t take it.

More intelligent proponents of laws prohibiting blasphemy see my point and redirect these laws towards a defense, not of God himself, but of his teachings and his flock. Blasphemy is then a verbal attack on a particular faith or on the followers of this faith. But this is also a sign of weakness and self-doubt. It implies that blasphemous statements can hurt a community of believers, individual believers or elements of a faith. It implies, in other words, that this faith isn’t very strong, either as a system of belief, or as someone’s conviction. So maybe the system of belief is so weak that it needs to be defended by law against criticism, because otherwise it would fall apart. Or maybe the believers need protection so as not to loose their belief. But perhaps the hurt in question doesn’t refer to a teaching or a belief, but is merely a matter of being insulted. And then I refer to a previous post in this series, more generally on the supposed right not to be offended (see also here).

Fortunately, blasphemy laws are more or less defunct in most western democracies. They are common only in theocracies. However, there are calls for their reinstatement in some democracies, especially those with large Muslim communities. It is an unfortunate fact that most of the modern day terrorist attacks are carried out by radical Muslims, and this fact convinces some people that there is a kind of necessary link between the religion of Islam and terrorism. As a result, public discourse in some circles is rife with incendiary remarks about Islam (Wilders is a particularly loud example). No matter how simplistic and unfair these remarks are, they are taken very seriously by many Muslims who seek to stop them by demanding the reinstatement and application of blasphemy laws. Some democratic governments seem to take these demands on board, and consider blasphemy laws to be a good way to accommodate religious and cultural sensitivities, to avoid social divisions, violent protest and radicalization of young Muslims.

However, I think they are wrong. Rather than silencing the debate about Islam and terrorism, governments should allow moderates within and outside of Islam the chance to win it. Blasphemy laws will only encourage islamophobes in their belief that Islam is intolerant and weak, seeking special protection because it is flawed to such an extent that it cannot survive criticism. And they get further encouragement from the often harsh and brutal punishments for blasphemy demanded by some vocal Muslim minorities.

In many countries, blasphemy laws are used as a means of political oppression. When religious leaders are also political leaders, or closely affiliated with political leaders, these laws can stifle dissent and opposition because they recast criticism of politics as criticism of religion. Even a secular leader can use blasphemy laws to decide religious animosity between groups in a way that suits his own purposes.

Blasphemy laws are a symptom of an insufficient separation between state and church. Religious liberty requires equal treatment of all religions, and equal political and legal power for all religions. Otherwise the choice for a religion wouldn’t be a free one. Blasphemy laws typically do not apply to all religions equally.

Limiting Free Speech (22): Aggressive Proselytizing

Some governments, local or national, want to ban aggressive proselytizing by some religious groups. In a multicultural environment, and especially in an area where there have already been tensions or clashes between religious groups, governments may believe that public order requires such a ban. Aggressive proselytizing by one group can provoke angry reactions by other groups. This can lead to public disturbances or even violent clashes.

As a rule, proselytizing is a form of speech that should be protected by freedom of speech, even when it is “aggressive” in the sense of persistent, widespread, continuous, and highly visible. However, “aggressive” can be more than this. As always in discussions on limits on freedom of speech, this freedom has to be balanced against other rights. When freedom of speech is used in such a way that it leads to violations of other rights, one has to decide which does the least harm: continuing to respect freedom of speech, or limit it for the sake of respect for other rights?

For example, when proselytizing becomes intrusive, the right to privacy may be harmed (in the case of religious telephone marketing for example). Or when it becomes too aggressive in an already tense multicultural setting, it may lead to violence and violations of the rights to security and bodily integrity. The system of human rights isn’t an harmonious whole, and different rights can harm each other. Freedom of speech is very important, but there’s no reason to believe that it is the only important or the most important human right.

Proselytizing is of course also part of freedom of religion. Article 18 of the Universal Declaration grants the right to freedom of religion, but this article doesn’t include a right to try to induce someone to convert to one’s faith. It merely states that anyone has the right to freely choose, practice, change, teach, manifest and worship his or her religion. “Teach” may be interpreted to include proselytizing, but that is not evident. Article 19, however, the article about freedom of speech, does specifically grant the right to impart information and ideas. Religious information and ideas are obviously included.

Article 18 clearly states that proselytizing shouldn’t mean forcing people to adhere to a certain religion. Religion should be a free choice. The rule against forced conversion is mirrored by the exit-right: freedom of religion means that people shouldn’t be forcefully converted, and also means that people who are already members of a religion have the right to decide to leave. Article 20 of the Universal Declaration as well prohibits coerced membership of an association.

This prohibition of coercion is important when talking about proselytizing. Many religious groups use “soft coercion” in their attempts to increase their flock:

  • they use their power in the media, in politics or in the economy
  • they promise rewards to people if they convert (such as education or healthcare)
  • they use family members who have already converted to try to convince people to convert as well,  etc.

Hard coercion, such as indoctrination, “deprogramming” (a kind of indoctrination), fear tactics, bribes etc. are less common, because most religions understand that religious belief must come from the heart and must be a voluntary choice (albeit a voluntary choice that can be encouraged).

It is precisely when coercive tactics (hard or soft) are used that the “target religions” will consider the proselytizing to be aggressive. And then they may decide that counter-aggression in some form is the only possible response. The results of this are obvious.

Proselytizing should be a contest of ideas, and the only tactic should be voluntary persuasion. This can mean argumentation, “witnessing”, giving the good example, and even doing good works and engaging in charity if there are no conditions attached. A soup kitchen that is only accessible after conversion is again a type of coercion that shouldn’t be allowed. Most religions adhere to these principle, at least in their major texts. Many followers, however, are less patient in their attempts to save unbelievers from eternal doom. And their impatience often forces them to use tactics that go beyond persuasion.

For many religions, it’s a duty to proselytize: “Go to all the nations and make disciples” says the Bible. And this is understandable: if you’re convinced that you possess the truth, it would be immoral to leave your fellow humans in the darkness of error. The same goes for non-religious “truth”. What makes religious truth special is that this truth means eternal salvation. So the absence of truth not only means error but also eternal damnation. Hence, persuasion is a very important and urgent matter (although some religions, like Orthodox Judaism, don’t proselytize at all, in part as a result of a historical fear that other religions would react in an aggressive way). This importance and urgency, however, do not excuse the violation of people’s freedom to choose.

Limiting Free Speech (21): Publishing Lists of Pedophiles on the Internet

I know from experience that it’s not useless for a human rights defender to make this clear from the start: sexual activity with children is despicable and must be punished severely, but this punishment doesn’t imply the abandonment of all human rights by the convicted pedophiles. When you’ll read the rest of this post, you may rush to the conclusion that we pay more attention to the rights of criminals than to the rights of victims. Nothing is further from the truth.

My point is that the practice of publishing lists of pedophiles on special websites on the internet (also called “outing pedophiles”) may be well-intentioned but it is inappropriate and even dangerous, especially when such lists include addresses of pedophiles who have been released from prison and have done their time.

It’s not because you’re a convicted pedophile that you lose all your human rights, including your right to privacy. Of course, the fact that you are or have been a pedophile isn’t a private fact. You have been convicted in an open and fair trial, and hence your crime is in the public domain. There’s no reason to keep judicial verdicts secret. On the contrary. The facts of your crime may also be very relevant to people not immediately concerned with the crime or the trial, such as the children of your new wife. And perhaps your new neighbors should be informed, especially when there’s a risk that you’ll repeat your crime. (But then why have you been released?)

So the information regarding your crime isn’t private, and can be used in a targeted way to inform people who may need to know. But there is a difference between a fact being part of the public domain (and circulated in a targeted way), and the use of this fact in a sensationalist manner, by people who will never have anything to do with you, and directed at people who likewise will never be involved. (A very large majority of child molesters attacks relatives or the children of friends).

Your crime isn’t private, but what can be gained by publishing your whereabouts and informing people who will never be likely victims? It seems to me that websites that publish the whereabouts of pedophiles are part of a retrograde style of “justice”, in which it is important to name and shame, to publicly expose a felon, and ridicule him or her. And when the public starts to react, and start to call the alleged pedophiles to see “if they still rape children”, then there is an unjustified invasion of privacy. And maybe other rights will suffer as well, such as the right to physical security and bodily integrity of the pedophiles. In certain cases the “naming and shaming” amounts to incitement to violence. There have been cases of attacks on pedophiles following the publication of their names and whereabouts.

I suspect that the people who create these sites, rather than “protect the public”, intend to whip up a scandal, and hopefully get some attention. They also imply that the justice system is inadequate, and they want to cultivate public mistrust in institutions and politics. Institutions are never perfect, but fostering negativity isn’t the way to make them better.

Another problem: the lists that are published often contain people who are merely accused of pedophilia (and not yet convicted), or people who are, to some, suspicious. Imagine what it must be like for an innocent person to appear on such a list. A court deals much better with the presumption of innocence than an angry mob.

The rationale behind rules prohibiting the outing of pedophiles, and explicitly limiting the right to free speech of the “outers”, is the protection of the rights of the pedophiles (such as the right to privacy, inviolability of the home, and physical security). Some may find it difficult to accept that pedophiles have rights, and that some people pay attention to these rights, rather than to the rights of the victims. But it is fair to say that a defining part of our shared humanity is precisely the limits we impose on the ways in which people can be punished.

And, of course, we do pay attention to the rights of victims. That is why pedophiles are put into prison. And we have to try to balance the pedophiles’ rights against those of their victims and possible victims even after they leave prison. That is why I stated above that it should be possible to inform neighbors and new family members. This kind of information is a limitation of certain rights of pedophiles – such as the right to form a family, the right to choose a residence etc. – for the sake of the rights of possible victims. We rightly believe that such limitations are less harmful than a new attack on children.

So-called zoning laws are also justified in certain cases. Pedophiles are then prohibited from entering a certain zone, or loitering and living in a certain zone (e.g. close to schools or playgrounds). These laws limit the right to choose a residence and the right to freedom of movement of the pedophiles in question, but if there is a high probability that these laws will prevent future attacks on children, then they are justified because the rights of the children that would be violated by an attack are more important than the cited rights of the pedophiles.

Of course, zoning laws aren’t always the answer, and may create more problems than they solve. They can make it harder for law enforcement officers to keep track of the pedophiles, and make it harder for the pedophiles to receive treatment for their condition. Hence, zoning laws may be counter-productive.

Limiting Free Speech (20): Flag Burning and Flag Desecration

Flag burning (or other types of desecration of national flags) is a form of speech. It may not be a very refined or profound expression of opinions or ideas, but it is an expression nevertheless. Flag burning expresses disgust and hatred for a certain country or a country’s government and policies. It’s typically a very emotional form of speech, devoid of rational argument and reduced to simplistic slogans, and most often used in a setting of mass protest.

Given that it is a form of speech, it should, a priori, enjoy the protection of the right to free speech. However, in certain exceptional circumstances there’s a rationale for prohibiting it. It is a form of hate speech, and the rules governing limitations of hate speech apply here as well. In a nutshell: hate speech can be prohibited when it incites violence.

Now, it’s not impossible to imagine cases where flag burning can incite violence (burning the flag of Israel in front of a surrounded Jewish enclave when a pogrom is imminent, for example), but I guess that most cases of flag burning are much less harmful. So a general law forbidding flag burning doesn’t seem justifiable. There have been several attempts in the U.S. Congress to vote for an Amendment to the U.S. Constitution to allow a ban on flag burning:

On June 27, 2006, the most recent attempt to pass a ban on flag burning was rejected by the Senate in a close vote of 66 in favor, 34 opposed, one vote short of the two-thirds majority needed to send the amendment to be voted on by the states. (source)

Much of this is of course political posturing of politicians trying to be the most patriotic. Given the rarity of flag burning in the U.S., it’s also a typical example of a solution in search of a problem.

Those who would burn the flag destroy the symbol of freedom, but amending the Constitution would destroy part of freedom itself. Richard Savage (source)

The fact that patriotic people are offended by flag burning isn’t a sufficient reason to ban it. (I’ve argued here against a right not to be offended).

Limiting Free Speech (18): Lèse Majesté

Lèse majesté (a French expression but originally from a Latin expression meaning “injury to the Majesty”) is a legal rule making it a crime to say or write things that offend or insult a king or queen, or violate his or her dignity.

Fortunately, this kind of limitation of freedom of speech has become extremely rare. Most countries have done away with the archaic institution of the monarchy and hence also their lèse majesté rules. Or they have relegated their monarchies to the domain of symbolism and celebrity. Absolute monarchies or monarchical dictatorships are the exception nowadays. Oppression has become a distinctly “republican” affair. (Some of the remaining absolute monarchies are Brunei, Qatar, the southern African Kingdom of Swaziland, and Saudi Arabia).

Most of the monarchies that continue to exist have no strict practice of limiting free speech on the grounds of lèse majesté. They may have some legal rules, but they aren’t applied rigorously. So, on a global level, it’s difficult to claim that lèse majesté is a big problem for freedom of speech. However, some monarchies do impose the rule and thereby violate the right to freedom of speech to a large extent. I’m thinking of course of Thailand. The law there states:

The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action. Whoever defames, insults or threatens the King, Queen or the Heir-apparent, shall be punished with imprisonment of three to 15 years. (source)

Moreover, a precise definition of defamation of or insult to the king is lacking, making the net very tight. As a result, the law has shown itself very useful for political vendettas. There have been numerous cases of censorship, self-censorship and imprisonment, often as a consequences of rather ridiculous faits divers:

Frenchman Lech Tomacz Kisielwicz refused to switch off a reading light on a Thai Airways flight he shared with two Thai princesses and was jailed under lèse majesté for two weeks after his flight landed in Bangkok. He was acquitted after apologizing to the King. (source)

But the consequences of many cases have been much more serious than the causes. Writers and academics have been jailed, thousands of internet sites are blocked, books and magazines such as The Economist have been banned etc. It’s not impossible that the site you’re reading now will suffer the same fate.

Thai law goes well beyond protection of the royal family. It has been used and abused to protect and justify an entire ruling elite, an autocratic and conservative social system, and even military coups.

Other monarchies are much more tolerant. It’s worth mentioning that some non-monarchies also have rules prohibiting insults to heads of states. In October 2006, a Polish man was arrested in Warsaw after expressing his dissatisfaction with the president and prime minister by farting loudly (see here).

Lèse majesté laws in one form or another, especially in countries where the beneficiaries of such protection are relatively powerful, is undemocratic. They can stifle large areas of political journalism and debate, and make it impossible to expose official wrongdoing and corruption.

Limiting Free Speech (17): Media Attention and the Chilling Effect

Our right to free speech doesn’t imply a duty of other people to listen to us. However, speech in general requires listeners. People speak because they want to be heard. They want to convince other people of their point of view, they want to build communities around issues and causes, and ultimately many acts of speech are intended to change the world. Most people don’t speak because they like the sound of their voice. They want people to listen.

The lack of an obligation to listen doesn’t, in itself, limit free speech. My freedom of speech isn’t limited by the fact that no one listens. However, a lack of an audience or a public, a lack of attention and recognition does make people want to stop speaking. Speaking to a wall gets boring after a while. So we can say that a lack of attention has a chilling effect on speech.

As such, this isn’t a problem. There are good reasons why many utterances don’t receive attention. They are uninteresting and the world isn’t any the poorer without them. So let them chill. But we all know that attention isn’t just. People lack attention for both the good and the bad. Many good things don’t get any attention, and many bad things do. A lack of attention can and does silence people who have truly interesting things to say, and the world is less without them.

Attention would be more just if people were not manipulated towards and away from certain types of speech. And here the culprit is the media. The media are essential in bringing sources of speech to a public. Book publishers make books from someone’s speech, and take these books to people who are willing to pay some attention to them. Television programs, internet sites, magazines etc. basically do the same.

But the media make a choice. Some cases of speech are “mediated”, others aren’t. They would create a just type of attention for cases of speech, if they would make this choice solely on the basis of the value (“the interestingness”) of the cases, but of course they don’t. The media have various reasons to select the speakers that are given an audience. The most important reason isn’t quality but profit. What will create the biggest profit? As a result, the most outrageous and controversial (e.g. Ann Coulter), the most sexually appealing (e.g. Paris Hilton), the most violent (e.g. Bin Laden), the most spectacular (e.g. Harry Potter) etc. receive the most attention.

This is often enough for moderate, thoughtful and nuanced seekers of the truth to simply give up. No one can say that their right to free speech was actually violated by some ominous power. They were simply discouraged to speak by “anonymous market forces” that are just as efficient as the most brutal dictator. And no one knows what the world has lost.

Limiting Free Speech (16): Fighting Words

Fighting words are written or spoken words expressed to incite violence. This is related to the topic of hate speech, but it isn’t quite the same thing. Hate speech isn’t necessarily intended to incite violence (just simple hate in some cases).

In Chaplinsky v. New Hampshire (in 1942), the U.S. Supreme Court decided that “fighting words”, words that tend to incite an immediate breach of the peace, are among the

well-defined and narrowly limited classes of speech [which] the prevention and punishment of have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Speech that merely causes anger, offense, insult or outrage does not amount to fighting words. Fighting words must present an actual threat of immediate violence or must “reasonably incite the average person to retaliate.”

It’s not true that certain words inevitably provoke violent reactions by individuals. Rather, one should take into account the context in which the words were uttered, not merely the content of the words themselves.

Given the rules for limiting free speech described in this post, the case of fighting words is rather simple. Inciting violence leads to violations of individual rights to security and bodily integrity, and in many cases these rights should take precedence over the right to free speech. It seems difficult to accept that hurting someone is a lesser evil than limiting someone’s right to speak and threaten.

Limiting Free Speech (14): Religious Education in Public Schools

There can be nothing wrong with educating children about religion. And I say this as an agnostic. But religious education must include information about all the world’s main religions, and about atheism as well. And it also shouldn’t avoid mentioning some of the problems caused by religion. Children benefit from seeing all sides of the coin.

Even public schools, i.e. schools instituted, organized and funded by the government, should provide this kind of religious education. Banning religion from public schools is wrong, but not because it would be a limitation on the freedom of speech of religions, as some religious activists claim. It’s not because you’re not allowed to speak in a certain place that you’re not allowed to speak (freedom of speech does not include the right to say anything anywhere; if it would, then newspapers would be forced to print everything everyone asks them to print). Such a ban is wrong for another reason: it would be stupid and a disservice to children.

It would be politically and legally wrong to have public schools teach only one religion, or emphasize one religion. The separation of church and state does not allow agencies of the state – such as public schools – to be hijacked by a particular religion, even if it is the religion of the majority of citizens (I would even say, especially when it is).

If this were allowed, then a religion could then use its privileged position to compete unfairly with other religions, and the result would be the abolition of religious freedom. The choice of religion would then no longer be a free one. Children would be led to one religion. Rather than complete information on all religious options, necessary to make an educated choice between religions, children would have a one-sided view on religion.

For the benefit of their students, private schools are of course also advised to teach all religions. But since many of these private schools are religious schools, it is only fair to allow them to focus on their own religion. It would indeed be an unjustified encroachment on religious freedom if religions and churches were not allowed to organize their own system of education according to their own rules (even if it includes teaching that Darwin was wrong and that Dinosaurs and men walked the surface of the earth together – but evidently they wouldn’t do their pupils any favors).

As long as parents have a choice to send their children to such a religious school or to another, public school, then there is no problem. But this must be a real choice of course. If the public schools are of inferior quality, or difficult to reach, then there isn’t really a choice.

School prayer is quite another matter. Praying is not learning, and the demand of inclusiveness mentioned above does not appear to work in the case of prayer. Starting lessons with different prayers of different religions seems awkward. Hence, school prayer in public schools looks like the kind of hijack that is contrary to the separation of state and church.

Limiting Free Speech (13): Chilling Effects; Indirect, Covert and Non-Governmental Limits on Freedom of Speech

Free speech is normally limited by dictatorial governments.

  • They imprison, threaten, deport or kill dissidents.
  • They take away their livelihood, put them in psychiatric hospitals, indoctrinate or “re-educate” them.
  • They use propaganda.
  • They prohibit opposition political parties, demonstrations, rallies and assemblies.
  • They censor the media, kill or imprison journalists and create media-monopolies.
  • Etc.

But also more democratic governments, although in general supportive of human rights, may decide that in some cases limits on the freedom of speech are justifiable for the protection of other rights, for example in cases such as

  • Hate speech
  • Holocaust denial
  • Pornography
  • Libel
  • Etc.

All these limitations are initiated by governments and usually imposed through force and/or law. There are, however, other types of limitations, taking place in a less obvious manner, covert, indirect and sometimes even when we are not aware of them. Many of these limits are not government limits. They are imposed by citizens on other citizens, or even by citizens on themselves. And I’m not thinking in the first instance of those types of group pressure that are just as obvious as state pressure, like religious fundamentalists scaring people into submission by acts of terror or other threats. This type of pressure, which I call citizen tyranny, is not covert or indirect. On the contrary. Its goal is maximum publicity, in order to maximize fear and submission.

What I’m thinking of here are cases such as these:

Social pressure

In the Netherlands, the former MP and critic of Islam, Ayaan Hirsi Ali, was forced out of her home after her neighbors managed to convince a judge that the value of their property suffered from her presence. (As a public critic of Islam, she received death threats and was considered a likely target of terrorist attacks, hence the “house value problem”). After such events, people will obviously think twice before engaging in public debate, starting with but not ending with Hirsi Ali herself.

This is called a “chilling-effect“. Certain events lead to suppression of subsequent acts of speech because of the fear that the perceived possible consequences of the subsequent acts will be similar to the real consequences following the said events.

A chilling effect causes ripples in society: one event leads to limitations of speech in other, unrelated events; one person’s problems with speech cause other people, who have no connection with this person, to reconsider their speech acts. The word “to chill” means to freeze, to harden, to instill fear.

Self-censorship

In the U.S., post 9-11, the media have often indulged in self-censorship, inspired by patriotism or rather by the fear of not being recognized as a patriot during the so-called war on terror. Solidarity with the government at war and the commander-in-chief, or the fear of being perceived as unpatriotic, appeasers, “useful idiots” or even open allies of the enemy, has turned many into uncritical supporters of the war. These people actually limited their own freedom of speech. They did not say what they wanted to say or thought they should say, for fear of appearing un-American. Something similar happened during the McCarthy era.

Political correctness

Political correctness can also lead to chilling effects. Certain words such as “nigger” should not be used. There’s a good example in the movie “The Human Stain”, based on the novel by Philip Roth, in which Anthony Hopkins plays a professor who is dismissed after calling some of his absent students “spooks”. It turns out that these students are African Americans and that the word “spook” doesn’t only mean “ghost”. (Ironically, the professor turns out to be of African American descent himself). Also, certain causes for certain events should not be mentioned (for example the fact that some of the problems of the African American community are not caused by racism). Etc.

Political correctness can also result from fear. In this era of growing Islamic fundamentalism in multicultural western societies, the fear of causing insult and moral outrage, of creating divisions in society, can lead to chilling effects.

Other causes of limitations on the freedom of speech

  • Media monopolies (which do not only exist in dictatorial regimes) stifle independent and minority voices.
  • Party financing systems can make it very hard for certain voices to be heard in political debate and can make some voices (i.e. donor voices) louder than they should be.
  • The profit principle: media outlets only publish what they consider to be (possibly) profitable. This also stifles certain voices.
  • Etc.

Limiting Free Speech (12): Obscenity

The words “obscenity” (from the Latin obscenus meaning “foul, repulsive, detestable”), “salaciousness” or “salacity”, are legal terms describing acts or cases of speech that are prohibited because they offend a society’s prevalent sexual morality. As such, these prohibitions are limitations of the freedom of speech and often include censorship of obscene material, punishment for obscene acts or distribution of obscene material etc. The question is whether such prohibitions are legitimate in light of the importance of the right to free speech.

What is or is not obscene differs from society to society, from individual to individual, and from time to time. What used to be considered obscene may today be banal. This makes it difficult to establish what is and is not obscene, and this difficulty has consequences for those wishing to make rules prohibiting obscenity.

Justice Potter Stewart of the Supreme Court of the United States famously stated:

I shall not today attempt further to define the kinds of material I understand to be embraced but I know it when I see it.

The Supreme Court does use a somewhat more precise rule, called the “Miller test“, to establish if something is obscene and hence doesn’t merit protection under the First Amendment:

  • whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest,
  • whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
  • whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Most forms of obscenity aren’t speech: walking naked in a shopping mall, for instance, or performing sex acts in public toilets, aren’t acts intended to transfer information or opinions. Hence they cannot be protected by the right to free speech (whether or not these acts need to be protected at all, and how, is not the topic of this post).

Obscenity can, with some credibility, claim protection under freedom of speech when it is in the form of printed material (including publication on the internet), because then it is a form of speech. In many cases, obscenity in such a form can be equated to pornography (although not all pornography is obscene and not all obscenity is pornographic). In many jurisdictions, this kind of obscenity is also traditionally considered as a justified limit on freedom of speech. But is it really justified?

In a previous post in this series, I discussed pornography and the possibility to limit the freedom of speech of pornographers. I concluded that this possibility exists in certain cases, namely those cases of pornography that cause harm. For instance, child pornography, pornography in which violence or force is used against the participants in the pornographic material, pornography that is associated with human trafficking etc.

The rule should indeed be: does it harm anyone? Whether it appeals to the “prurient interest”, or whether it lacks “some artistic interest”, is essentially irrelevant. Does it cause harm in the sense of rights violations? Of course, this kind of harm isn’t always easy to establish. It is in the case of child pornography. But many feminists make a convincing case that pornography, even pornography depicting consenting adults and consumed by consenting adults, dehumanizes women, solidifies mentalities in which women are second class citizens, and glorifies violence against women.

However, depicting violence is not necessarily the same thing as incitement of violence. The latter causes harm, the former not necessarily (otherwise we would have to ban all detective stories).

Limiting Free Speech (11): The Right to Libel, Defame and Slander

A libelous statement (or a defamatory or slanderous statement, which are more or less synonymous) is a lie, a statement that can be disproven by facts (and therefore not merely an opinion), which has a direct impact on someone’s reputation and image. This impact results from the public nature of the lie and the likelihood that some people believe the lie is in fact not a lie.

Most systems of law provide legal measures to deter libel and provide compensation (financial or otherwise) for libel once it has been committed.

A related but slightly different problem is the public revelation of private information which is not of public concern. This information is not necessarily false, but may be embarrassing and hence may have the same effect on someone’s reputation as libel has.

A lie as such should of course not be prohibited, and is not a sufficient reason to limit freedom of speech. Neither should the revelation of private information. Sometimes, privacy is less important than other values. Regular readers of this blog will remember the rules for limiting free speech set forth in the introductory post of this series. Some rights can harm other rights – in this case freedom of speech and privacy – in which case one of the rights has to be limited for the sake of the other right.

This choice between rights is never easy, but one rule could be the relative harm done by limiting one right or another. If the harm caused by free speech is simply embarrassment, a slightly deflated reputation, or a feeling of dishonor, then the case for limiting free speech isn’t very strong. However, many so-called libelous statements do not only cause embarrassment. People whose reputation is destroyed, either by lies or by the disclosure of irrelevant private information that is of no public concern, may lose their livelihood. So the right that is affected by libel is not only the right to privacy, but also the right to a certain minimum living standard, the right to work etc.

Limiting Free Speech (9): Religious Monuments and Symbols in Public Spaces, and “Killing Christmas”

The U.S. is obviously a very Christian country, but also one which values religious liberty and pluralism. Government authorities in the U.S., and especially local governments, sometimes allow displays of the Ten Commandments, nativity scenes or other mainly Christian religious monuments or symbols to be placed in public parks or buildings.

However, when doing so, they often invite demands to allow a different religion’s display as well. And many of them refuse, either because the people who decide are themselves Christians, or believe that Christianity is inextricably linked to the national identity of the U.S.

The problem is that such a refusal violates the First Amendment, and does so in two ways:

  • It harms the freedom of speech of other religions.
  • And it violates the rule of the separation of state and church and the Establishment Clause.

Religious monuments and symbols presented by a government authority in government buildings or spaces don’t imply that the government in question establishes a religion, prohibits the free exercise of religion and coerces people in religious matters. Onlookers can avert their eyes, and the government doesn’t force people to look, let alone accept what is written on the monument.

However, government sponsored religious displays do establish religious preference and religious discrimination by advancing one religion and inhibiting another. There can be soft pressure if governments link themselves to one religion in a way which is at first sight relatively harmless, as is the case in this context. Other religions, which do not benefit from government affiliation, are, at least in the long term, at a disadvantage. As a result of their “non-official character”, the choice of religion is no longer a free choice but one which is influenced by the fact that the government and, by analogy, the rest of society, favors one religion. Religious liberty is threatened in such circumstances.

Another problem is that people of other religions or non-believers can be forced by such monuments to feel like outsiders, as people who are out of the mainstream, who believe things that are wrong and sinful and who need to be converted for their own good, by the government no less. This “cultural violence” (dixit Galtung) can result in (self-)exclusion and low self-esteem, and in general polarizes and divides a society.

Hence, displays of religious symbols or monuments in public spaces should follow the “all-or-nothing” rule. Public property must be open to all religions on an equal basis – or open to none at all. Since the first option – open to all – would quickly lead to an absurd clutter in spaces which are, by definition, limited, the second is the only realistic option.

Others would say that this second option – prohibitions of all religious displays in public spaces – violates the right to free speech of the government agency and the adherents of the religion which would find a government agency willing to display its symbols and monuments. However, a ban on religious displays can only cover public spaces. There are plenty of places on private land where the Ten Commandments and other symbols can be displayed without the need to include the symbols of other faiths. Freedom of speech in general is a universal value, but that doesn’t mean that everyone can speak everywhere. Everyone can speak and say what they want, but not everywhere. For instance, we can’t all claim equal airtime on national television, or demand a right to speak in parliament.

A ban on religious displays should be enforced only for the purposes of religious freedom and religious equality. Dismantling Christmas trees because they might offend non-Christians is stupid political correctness. Not giving offense is not a sufficient reason for banning religious displays. The only possible reason is religious freedom. (And regarding Christmas, one can easily make the case that this is much more than a religious festival, and hence there are good reasons not to ban displays of it in public spaces).

Another point: atheists shouldn’t see bans as a vindication of their beliefs (I’m not pronouncing myself on the merits or demerits of atheism here). A ban doesn’t amount to the installation of official atheism. It’s just neutrality. Atheist expressions fall under the same ban, since atheism is also a religious belief (there’s no way to prove that God doesn’t exist, as there is no way to prove that He does). The government doesn’t pronounce itself. Not on a religion, but neither on atheism. If you have to give it a name, you could say that a government that tries to respect the First Amendment in this way, is an agnostic government. You couldn’t call it an atheist government.

What is discussed here should also be distinguished from other controversies such as bans on head scarfs, overly prominent minarets etc. Head scarfs and mosques are normally in the private, non-government sphere and are not religious symbols used by government authorities on their land and space. In such cases, we don’t have a government linking itself to a particular religion by way of symbols or monuments, but governments banning religious expressions. This is also a problem of religious freedom, but a different one. Rather than a government associating itself with a dominant religion, there is active persecution of minority religions, fed by fears of religious colonization by migrants, a willingness to protect cultural homogeneity etc.

Limiting Free Speech (8): The Fairness Doctrine, Limiting or Improving Speech?

The Fairness Doctrine was a policy of the U.S. Federal Communications Commission (FCC) – currently no longer applicable – that required television stations to deal with issues in a fair and balanced way, and to present contrasting viewpoints and give them all some air time (but not necessarily equal air time). The U.S. Supreme Court has upheld the constitutionality of the Fairness Doctrine.

Self-censorship

The FCC, when headed by Reagan appointees, abolished the policy because

the intrusion by government into the content of programming occasioned by the enforcement of [the Fairness Doctrine] restricts the journalistic freedom of broadcasters

and hence “chills speech” and violates the First Amendment. In order to avoid to go out and find contrasting viewpoints on every story, some journalists will supposedly refrain from covering some stories. Hence you have a de facto, not de jure, limit on free speech resulting from self-censorship.

What scarcity?

Another reason given for abolishing the doctrine was that the “scarcity argument” is no longer valid. In the old days, when the number of media outlets was limited, the public couldn’t go elsewhere to find other viewpoints, and the Fairness Doctrine could be justified. Today, however, with the internet, blogosphere, cable and satellite television, this is no longer the case. If anything, there’s too much punditry.

Public support

There’s some truth in all of this, but still I think there are good reasons for reinstating the Fairness Doctrine.

  • First of all, the claim that it limits free speech is somewhat awkward. How can a rule that multiplies the number of views and arguments that are represented in the media, be called a limit on the freedom of speech? If journalists will not cover a topic in order to avoid having to go and find opposing views, than this is either because there are no opposing views (if there are, they will quickly assert themselves) or because the journalists are lazy. After all, why do we have Google?
  • Secondly, there’s public support for the Fairness Doctrine. A recent poll by Scott Rasmussen asked whether the government should require all radio and television stations to offer equal amounts of liberal and conservative political commentary. 47 percent said “yes”, 39 percent were opposed.
  • Thirdly, the scarcity argument is still valid, albeit in another way. Sophisticated audiences, tech savvy, with knowledge of where to find information and enough spare time to do so, will not benefit from a reinstated Fairness Doctrine. They will make sure that they get their balanced information from different sources if one source isn’t balanced. But other people will benefit, in particular those who rely on one or a few media-outlets for their information. Some of these people may be burdened by low levels of education and poverty, and hence are especially vulnerable to the effects of one-sided reporting.
  • And finally, it is common knowledge that the quality of public debate and information in the U.S. is not what it could be. What we hear and see on television, radio and the internet is often no more than shrill partisan shouting. The issues are oversimplified, nuances get lost, sound bites rule, and much of the time the really important issues are pushed back by sensational trivia or personal attacks. A requirement to air opposing views would temper this and would improve the quality of political debate.

Democracy rests on opinions: opinions of candidates on policies, opinions of the people on candidates and policies, opinions on proposed policies and on executed policies. It’s therefore of the utmost importance that these opinions have some kind of value and aren’t knee-jerk impulses, prejudices, intuitions based on personal attacks, etc. Only well-considered opinions are good opinions and well-considered opinions are those that are tested in discussion and that survive as many counter-arguments as possible (see here).

Clearly, the media have a responsibility in this respect and have to present the struggle between arguments. They shouldn’t just be the mouthpiece of one side of the argument. They are indeed the “fourth estate” and are necessary for the functioning of a democracy.

We shouldn’t forget that opinions are not readily available. They are the result of thinking, studying, deliberation and discussion. If we want the people to have opinions, and preferably well-considered opinions, then we have to create frameworks for debate. We shouldn’t allow democratic elections – or even opinion polls and referenda – to be a simple system for tapping opinions that aren’t based on debate, or that often don’t even exist as opinions when they have to be tapped.

Limiting Free Speech (7): Violence in the Media and Real Life Violence

Conventional wisdom says that violent films, violent video games, violent song lyrics or even news stories about violence, lead to an increase in violent crime. On the basis of this causal link, some argue that the right to free speech of movie makers and others should be limited and they should be forced to show restraint when depicting violence. And if they don’t, some measure of benevolent censorship should be applied. The use of movie ratings, which do not limit freedom of speech, isn’t enough. It’s useful to protect children – probably the most impressionable part of humanity – but if violence in movies incites real violence, there’s no reason to think that this is only the case for children.

Is this conventional wisdom true? It probably is, but this doesn’t necessarily mean that limiting free speech is the right kind of remedy. Many studies have pointed out that media violence exposure increases aggressive behavior because

  • it renders viewers insensitive,
  • excites them,
  • changes their moral compass (especially in the case of young viewers),
  • and gives them ideas (people, also adults, learn through imitation).

However, another study claimed that movie violence might temper the real thing:

On days with a high audience for violent movies, violent crime is lower. And crime is not merely delayed until after the credits run. In the hours after theatres close — from midnight to 6 a.m. the next day — violent crimes dropped. Violent films prevent violent crime by attracting would-be assailants and keeping them cloistered in darkened, alcohol-free environs. Instead of fueling up at bars and then roaming around looking for trouble, potential criminals pass the prime hours for mayhem eating popcorn and watching celluloid villains slay in their stead. “You’re taking a lot of violent people off the streets and putting them inside movie theaters,” said one of the authors of the study, Gordon Dahl, an economist at the University of California, San Diego. “In the short run, if you take away violent movies, you’re going to increase violent crime.” Over the last decade the showing of violent films in the United States has decreased assaults by an average of about 1,000 a weekend, or 52,000 a year. (source)

Such things are difficult to prove. Who can say that a movie is the cause of a particular crime? And who can redo the events to see what would have happened had the criminal not seen the movie? Or the other way around: if you claim that moviegoers forgo activities that have a greater tendency to encourage mayhem, like drinking and drug use, how can you prove that they would have been more likely to have committed a crime had they not visited the cinema?

Any act of violence has multiple and complex causes. One person can sit through hours of violent movies and remain his own calm self. Another person turns violent because of one wrong word. He or she may be burdened by low self-esteem as a result of years of childhood negligence, poverty etc. The problems is: if there have to be limits on the freedom of expression of artists, these have to be the same for all viewers. You can’t check at the ticket stand of a cinema if a person has violent tendencies that may be aggravated by a violent movie. You just have to cut away the violent scenes from the movie. And then you’ll always be overshooting (pardon the expression) because you’re protecting many viewers who don’t need protection since they will not be incited to violence.

But better safe than sorry and cut the violence anyway? I don’t think so. Freedom of expression and artistic expression are extremely important. It’s likely that other measures, short of censorship, and intervention earlier in the causal chain of violence will be more successful in stopping or limiting violence.

Limiting Free Speech (6): A Right Not to be Offended or Insulted?

In the previous post in this series I concluded that insulting or offending speech should not be forbidden, and is not a legitimate reason to limit the right to freedom of speech. Such limits are possible in general but should be exceptional given the importance of the freedom of speech. In the current post, I’ll flesh out the argument against limits on offending speech.

Offending speech is a slightly broader category than derogatory speech. The latter can be said to imply the intention to offend, ridicule or belittle, but offending speech in general does not imply this intention. People can be – and regularly are – offended by speech (or actions) that is not meant to offend.

Let’s assume, for the sake of argument, that there is such a thing as a right not to be offended. Such a right would create a duty not to offend. This duty goes much further than the duties normally assumed to be generated by tolerance. Tolerance forces people to abstain from

  • interfering with other people’s beliefs or practices
  • suppressing other people’s beliefs or practices
  • persecuting people with other beliefs or practices.

The focus is on the duties to abstain from actively interfering, suppressing or persecuting (or coercing in perhaps other ways). Tolerance forces us to leave people alone, even when – or rather especially when – we dislike, disapprove of or feel insulted by these people, because only then will we be tempted to intervene. We will not be tempted to intervene with people who leave us indifferent, in which case tolerance and the duties that arise from it are irrelevant.

A presumed right not to be offended can therefore be thought of as an exception to the duties of tolerance. When we accept such a right, we in fact claim that this right trumps some of our duties of tolerance in certain cases, namely in the cases when other people offend us. We should not tolerate offense, and the right to free speech of the offenders (of those who cause offense) should be limited by our right not to be offended. I say “some of our duties” because I don’t think that many people would claim that a right not to be offended should make it possible to go beyond limiting free speech, and should for example allow us to persecute offenders (some Muslims went this far in the case of the Muhammad cartoons).

If we assume that there is a right not to be offended and that this right has the consequences for tolerance which I have described, then we’ll quickly run into some insurmountable difficulties – and these difficulties will be a reason to reject the right not to be offended.

What are these difficulties? Let’s make a difference between active and passive offense. We can offend others by merely having certain beliefs or ways of lives. This passive offense does not result from an intention to offend. Active offense takes place when

  1. we knowingly and intentionally seek to offend others, by for example making certain derogatory claims about their beliefs and ways of lives, AND
  2. these others take offense.

If we focus on passive offense, then we must accept that it cannot be in itself offensive or disrespectful to have certain beliefs or ways of lives. Offense should entail the active intention to insult and cause offense. If we do not accept this, then we have to conclude that a right not to be offended triggers the duty to change beliefs or ways of life. And that is obviously outrageous.

Now, regarding active offense, the issues are, at first sight, much clearer. However, the problem is that there is no clear distinction between active and passive offense. It can be part of my beliefs and way of life that I should subject all views to rigorous criticism. And such criticism can cause offense. I know this, but still insist that I should criticize. Hence, I create active offense. A right not to be offended would then imply the duty to change my views and way of life, again outrageously.

Or it can be part of my beliefs that everybody should hear the word of God (my God). This as well can be insulting to adherents of another religion, who consider me to be a sinner, a false messenger leading humanity astray. A right not to be offended would again force me to deny myself.

Another problem with a possible right not to be offended is the fact that everything can be considered offensive by some people. It is impossible to predict what will or will not be considered offensive by someone, somewhere. A duty not to offend would ultimately lead to a duty to remain silent.

So, if offense is to be prohibited, and freedom of speech limited, then the only options would seem to be:

  • remain silent
  • force people to change their beliefs and ways of life
  • force people to be hypocrites.

Any one of these options is a nightmare. And the second one is self-contradictory because the rationale behind the proposal for a right not to be offended is precisely the necessity of respect for people’s beliefs and ways of life.

So it seems that offense and disrespect are a necessary price to pay for freedom of speech and the right to live your life according to you own choices and beliefs. However, this doesn’t mean that offense, ridicule, belittlement and disrespect are virtues. We shouldn’t make them illegal, but they shouldn’t be cherished either. They make it more difficult to have a rational debate on important subjects. They poison the debate and make it difficult to argue and persuade. So there are good reasons to avoid them, even if there are no good reasons to prohibit them.

Limiting Free Speech (5): Pornography

First of all, whatever we think of pornography, we should admit that it is a kind of speech, just as cross-burning, flag-burning, hate speech etc., and hence it is at least possible that it falls under the protection of the right to free speech. The U.S. Supreme Court has at different occasions decided that pornography should be protected under the First Amendment:

There are two types of pornography that receive no First Amendment protection ’97 obscenity and child pornography. The First Amendment generally protects pornography that does not fall into one of these two categories. (source)

Other jurisdictions have also protected pornography.

Violence IN pornography

The quote above already indicates that an overall protection of pornography widely defined is not acceptable and that certain limits on the freedom of speech of pornographers are possible. According to the rules set forth in the introductory post of this series a right can be limited if it violates other rights or the rights or others. This is obviously the case of any child pornography or pornography in which violence or force is used against the participants, such as certain kinds of extreme sadomasochistic porn.

Another reason why there can be force and violence in pornography is human trafficking. Many girls are forced to participate in porn movies because they are victims of human trafficking. They are modern slaves in the sex industry.

Violence BECAUSE OF pornography

There is still some discussion in the scientific community as to whether pornography, and especially hardcore and violent pornography, promotes sexual violence in society. This is not easy to establish because the interactions of mass media and human behavior are complex. If pornography promotes sexual violence, we have another justification for limiting its distribution.

The weight of evidence is accumulating that intensive exposure to soft-core pornography desensitises men’s attitude to rape, increases sexual callousness and shifts their preferences towards hard-core pornography. Similarly, the evidence is now strong that exposure to violent pornography increases men’s acceptance of rape myths and of violence against women. It also increases men’s tendencies to be aggressive towards women and is correlated with the reported incidence of rape. Many sex offenders claim they used pornography to stimulate themselves before committing their crimes. (source)

In Australia, the federal government has tended to relax its controls on pornography since 1970. Different states have, however, implemented these changes to varying extents and, as a result, have unwittingly conducted an interesting experiment on the effect of pornography. Queensland, the most conservative state, has maintained the strictest controls on pornography and has a comparatively low rate of rape reports. By contrast, South Australia, the most liberal state in relation to pornography, has seen escalating reports of rape since the early 1970s:

Businesses spend billions of dollars on advertising, in the belief that media can and do have an effect on human behaviour. We support and encourage the arts, in the belief that novels, films and such have the capacity to uplift and enhance human society; in other words, that the arts have a capacity to influence people. Yet we are expected to believe that the increasing tide of pornography does not affect attitudes to women. (source)

The image of women in pornography

One reason why porn can cause violence in society is the image of women that is created through pornography. In some porn, rape is explicitly legitimized, but in all kinds of porn women are depicted as constantly and immediately available for sex. We can assume that long term consumption of porn from an early age onwards, creates the opinion that it is not necessary for men to establish whether a female partner consents to having sex since porn tells them that such consent is automatic. In real life, of course, this is not the case and hence there will be rape.

Porn also objectifies women. It turns women into objects of sexual desire and sexual use. Objectification of women is of course not limited to pornography. Advertising also regularly uses women as means or tools or objects. The objectification of women means dehumanization. And there are more things you can do to a non-human than to a human. Objectification therefore can promote violence against women. To the extent that is does, we have another justification for restrictions on pornography.

Moreover, pornography shapes and reinforces a male-dominant view of sexuality and of gender relations. It’s not far-fetched to claim that pornography contributes to gender discrimination, machismo, sexism, paternalism etc.

All this is the case not only for violent porn but for porn in general and could therefore justify restrictions on non-violent porn.

Different kinds of restrictions

There are different kinds of pornography, different circumstances in which it is distributed, and different people respond differently to pornography. So restrictions on pornography may differ according to circumstances. People with a history of sexual violence are more obvious targets of a ban on the use of hardcore and violent porn than other people. Young people, for the reasons given above, may have more restrictions, including non-violent porn. Pornography in a library is not the same thing as pornography on the streets…

Soft porn or “artistic porn” should be treated differently. An all-out ban on all kinds of pornography would be just as unwise as an all-out protection. Many classic works of art would have to be forbidden if no pornography were allowed. We have to admit that porn can be art and art can be pornographic.

Limiting Free Speech (4): Derogatory Speech

In this series, I examine the possibility of limiting certain kinds of speech, and especially the possibility of legal limits. As stated in the introductory post in this series, such limits are possible but should be exceptional given the importance of the freedom of speech.

So-called derogatory speech is a form of speech which expresses ridicule, mockery, contempt or derision. It is a disparaging kind of speech that often takes the form of cartoons, caricatures, pamphlets, comedy shows, outright insults etc.

The main justification for limiting free speech is the possibility that speech violates others people’ s rights. When I claimed that limits are justified in the case of holocaust denial and hate speech, I did so because I believe that these kinds of speech can violate rights, and when rights come into conflict, a balance should be found and one right has to give way for the other. In some cases, limiting the right to free speech of holocaust deniers or hate preachers is a lesser harm than the harm that would be done if they were allowed to speak.

In the case of derogatory speech I think this is not the case. Derogatory speech is often silly, sad and pathetic, but the only harm it does is the insult suffered by the target, or perhaps a feeling of dishonor and a loss of self-esteem. People should be able to live with insults and there are no rights to protect self-esteem or honor. The reason we have a right to free speech is to protect speech that causes offense. Inoffensive speech hardly needs protection.

But is it really true that insult is the only harm produced by derogatory speech? One could argue that derogatory speech causes other kinds of harm. It perpetuates negative stereotypes of certain minority groups in society, groups which are already relatively vulnerable. Or it devalues the collective image of the group, thereby deepening social divisions and increasing the risk of discrimination. It may also erode the capacity of the majority culture to be receptive of new identities or communities. Tolerance may suffer.

Moreover, derogatory speech makes it more difficult to have a rational debate on important subjects. It poisons the debate. Neither the Muhammad cartoons, for example, nor the subsequent reactions from parts of the Muslim community did anything to foster the debate on the multicultural society. Ridicule, just as threats of violence, kill the discussion.

John Rawls reminded us that free speech should contribute to rational debate. The purpose of speech is to convince, to examine arguments, to revise one’ s opinions in the light of as much information as possible, to submit one’ s opinions to a critical public etc. Neither ridicule nor threats can advance such a vision of debate. (source)

All this is undoubtedly true, but is it enough to prohibit derogatory speech? I don’t think so. The best defense against harmful speech is either counter-speech or simple disregard. If we start to prohibit insulting speech, we take the slippery slope: anything can be insulting.

Limiting Free Speech (3): Hate Speech

Hate speech (or antilocution, or fighting words) is speech that incites other people to hate a certain group in society defined by common characteristics (race, gender, religion etc.). It usually also incites to commit violence and discrimination based on hatred.

The most famous case is that of the Danish Muhammad cartoons. These cartoons led to worldwide protest and expressions of anger and hate, not only against the cartoonists in question, their newspaper or their country, but against liberals and democrats in general.

However, hate speech is by no means an exclusively Muslim matter. It can be found everywhere where there is hate: it can be racist, anti-gay, islamophobe, etc. It can also be framed in anti-terrorist language: many western countries have initiated legislation outlawing hate speech that is part of Muslim mobilization of terrorists (in militant mosques for example).

Given the importance of freedom of expression, it is not universally accepted that hate speech can be legally prohibited. There is of course article 20 of the International Covenant on Civil and Political Rights which outlaws hate speech:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

However, contrary to hate crimes, such as attack on gays or muslims or writers/movie makers/cartoonists critical of Islam etc., the basic rule should be that speech as such is not a crime, even speech expressing or inciting hatred, violence or discrimination. Speech is protected by the right to free speech.

However, this right, like many human rights, is not absolute and can be limited when it endangers other human rights (like the right to life and bodily integrity, the right not to suffer discrimination etc.). The general defense of hateful speech has therefore some exceptions. It’s a thin line between hateful words and hateful actions. Impressionable people can be led to violent crimes by hate speech. Hate is taught. The example of the Muhammad cartoons protests is again telling in this respect. Many protesters were encouraged by some Muslim leaders to commit acts of violence.

But much depends on the circumstances, the context and the manner of speech. Islamophobia in front of a crowded mosque is obviously not the same thing as islamophobia in an obscure publication. Examples of speech, in the wider sense of the word, such as hanging a noose in a tree in the front yard of the house of an African-American family, or spraying graffiti on someone’s car or house, are more of a problem than posting a picture of a Koran in the toilet on a blog or a website. The first examples are clearly intimidation and can force people to sell their houses and move somewhere else. This has human rights implications (freedom of residence and property rights), which the latter examples don’t have (it’s difficult to argue that a photo of the Koran in a toilet, although undoubtedly an expression of hatred, harms anyone’s freedom of religion).

When speech has implications for the rights of some people, it is legitimate to consider limiting this speech, according to the rules set out in the introductory post of this series.

An important distinction here: all this is about hate, not about speech that is merely offensive, insulting, ridiculing etc. That’s the topic of another post. The distinction, however, can be blurred. What is hateful and what is merely offensive is a matter of personal conviction, it differs between groups and it changes over time. Some groups may be more sensitive than others. If one decides to legislate the matter, this can complicate things.

Moreover, what to someone can be seen as hate – for example homophobia – may be a central tenet of someone else’s religion and therefore protected by the freedom of religion. However, the freedom of religion is not absolute either.

And finally, some examples of speech that were once considered to be hateful – such as “nigger” – have been reclaimed by the groups that were previously targeted, and are sometimes even used as a badge of pride.

Another distinction: it is perhaps possible to imagine hate speech that is not directly or indirectly inciting violence and/or discrimination. Obviously, this kind of hate speech is less dangerous. However, like derogatory speech or offensive speech it does create a problem. It perpetuates negative stereotypes, devalues collective identities, deepens social cleavages and conflicts, makes it more difficult for the community to accept new identities, and it makes debate more difficult. So it makes it more difficult to create and uphold a tolerant, diverse society in which there can be civilized debate and discussion leading to better knowledge.

However, is this reason enough for a legal prohibition on hate speech? I don’t think so. Is it reason enough to combat hate speech with other means? Sure. The remedy for harmful speech is not necessarily prohibition but counter-speech, and sometimes it is best to just ignore some kinds of speech. Engaging the hate mongers, let alone prosecuting them, gives them legitimacy, publicity, and under-dog or victim status.

Limiting Free Speech (2): Holocaust Denial

In the introductory post of this series, I summarized the dangers of limiting free speech while at the same time granting that such limits are necessary in some cases. One case is Holocaust denial, or Holocaust revisionism as it is referred to by its supporters.

What is Holocaust denial?

Holocaust deniers only rarely claim that the Holocaust didn’t take place or that no Jews were killed by the Nazis. Rather, they claim that either or all of these facts are lies:

  • The Nazi government of Germany had a policy of deliberately exterminating the Jews
  • Over five million Jews were systematically killed by the Nazis
  • The extermination was carried out with tools such as gas chambers.

Instead of outright negation, there is trivialization. Moreover, Holocaust denial claims that the holocaust is a deliberate Jewish conspiracy created to advance the present-day interest of Jews and Israel.

Most historians and scholars reject Holocaust denial as a pseudo-science that fails to respect the rules of historical evidence and that is grounded in hatred rather than the pursuit of knowledge. Holocaust denial is characterized by the distortion or falsification of historical documents and the selective use of sources.

Holocaust deniers are mainly far-right, neo-nazi types and antisemites, but there are also far-left deniers, islamic deniers etc.

How can we justify the limits on free speech inherent in laws prohibiting Holocaust denial?

Nothing that went before is in itself sufficient to justify laws limiting the right to free speech of Holocaust deniers. According to the rules set forth in the introductory post in this series, one has to show that some rights are violated by Holocaust denial, and that this violation is worse than the violation of the rights of Holocaust deniers which would result from Holocaust denial laws.

There are a few possible kinds of justification:

1. Antisemitism

There is antisemitism inherent in Holocaust denial, although it is not necessarily obvious or immediately apparent. It is often implicit rather explicit antisemitism: the Holocaust is an invention of Jews, a tool to make them look like victims instead of criminals, and thereby gaining some sort of immunity for their vicious acts. Or a tool to make financial claims on Germany.

However, the mere antisemitism of Holocaust denial is not a sufficient reason to prohibit it. Antisemitism as such should enjoy the protection of the freedom of speech. Only when antisemitism explicitly incites to violence against or discrimination of Jews can it be forbidden. And Holocaust denial is rarely this explicit.

The offensive nature of Holocaust denial does undoubtedly inflict harm on Jews, especially the survivors of the camps, but no harm in the sense of rights violations. One could claim that Holocaust denial perpetuates and encourages antisemitism and therefore increases the likelihood of antisemitic attacks on individual Jews. But it would be a tough job establishing the causal links.

One could also claim that Holocaust denial perpetuates negative stereotypes in society, and thereby contributes to the marginalization of Jews. Again, difficult to prove.

In general, Holocaust denial is such a marginal phenomenon that it’s difficult to claim that it makes a substantive contribution to violence and discrimination. But in some countries or subcultures, the balance can be different.

2. Offensive speech

Justifying the prohibition of Holocaust denial merely on its offensive nature, would open the floodgates to a massive number of possible limitations of free speech, especially in the field of blasphemy. This would lead to an excess of political correctness and ultimately to “thought police”.

3. Libel

A justification based on the harm to the reputation of Jews would make Holocaust denial similar to libel. However, libel is traditionally designed to protect an individual’s reputation, income, and honor against abusive and harmful accusations. I fail to see how Holocaust denial can be directly harmful to individual Jews. Group defamation is highly controversial and could lead to the same problems cited in the previous point.

4. Democratic self-defense

Sometimes limits on rights are necessary to protect a rights-supporting community against anti-democrats who use democracy against democracy. A democracy is a particularly vulnerable form of government. The freedom it delivers can easily be misused by those who want to take it away. Anti-democratic and illiberal forces are free to use rights, freedoms and democratic procedures for the promotion of tyranny and oppression. The purpose of many holocaust deniers is the resurrection of Nazism, and a condition for this resurrection is the denial of the Nazis’ greatest crime. There can be no hope for acceptability of far-right policies as long as the Holocaust stands in the way. German Nazism, of course, is notorious for the way in which it misused the imperfect Weimar democracy.

Seen in this light, the criminalization of Holocaust denial is a self-defensive act of democracies in their struggle against extremism. Holocaust deniers use the freedoms of democracy in order to overthrow it. One cannot reasonably force democracies to abstain from self-defense. No system can be required to cherish the seeds of its own destruction.

To the extent that Holocaust deniers aim to overthrow democracy, they are hardly in a position to complain about limitations of the freedoms they would like to destroy:

One has no title to object to the conduct of others that is in accordance with principles one would use in similar circumstances to justify one’s actions towards them. A person’s right to complain is limited to violations of principles he acknowledges himself. John Rawls

You should not ask something for yourself that you are planning to deny to others. This, according to me, is the strongest justification of Holocaust denial laws, even in those countries were the revival of Nazism of highly unlikely. It may be unlikely precisely because of measures such as Holocaust denial laws.

5. The defense of Israel

Some extreme Islamists use Holocaust denial in their campaign against Israel. They hope that when they negate the Holocaust, they can remove one of the moral foundations of the state of Israel (as a refuge for the survivors). This negation, they hope, can help their efforts to destroy Israel.

However, whereas this justification may be useful in some circumstances, it is difficult to use it for an outright, worldwide prohibition on Holocaust denial since Holocaust denial outside of the Middle East can hardly be linked to the possible destruction of Israel.

6. The special case of Germany

In Germany, there may be an additional justification available. Holocaust denial laws can there be seen as part of a package of reparative justice, a kind of “sorry” issued by the state, a public acknowledgment of responsibility.

7. The interest of historical truth

Whereas truth is very important, it seems wrong to use laws to enforce the truth. Truth should be based on proof and sound argument, and using the law to punish “lies” only encourages those who believe the lies. They, and others as well, will think that there must be something wrong with the “truth” if it needs the law for its protection.

Conclusion

There is a case to be made for Holocaust denial laws, but one should be very careful and limit the prohibitions to cases and circumstances that really require them. Not all forms of Holocaust denial is equally pernicious, and not all circumstances are equally dangerous. Moreover, one should take into account the counterproductive effects of stigmatizing a certain group: persecution by the law can encourage them, can increase the number of sympathizers, and can give them more publicity than they would otherwise receive. Ignoring Holocaust deniers rather than criminalizing them could often be the most successful strategy. And some justifications should be avoided because they can create a dangerous precedent.

Countries with laws against Holocaust denial

Holocaust denial is explicitly or implicitly illegal in 13 countries: Austria, Belgium, Czech Republic, France, Germany, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Switzerland (source: here or here).

Limiting Free Speech (1): Introduction

I’m a strong defender of human rights in general and of free speech in particular. But I’m also convinced that the system of human rights is not a harmonious whole and that some rights can conflict; some rights may harm other rights, in which case one right has to be limited for the sake of the other. If you feel the urge of yelling “Fire!” in an overcrowded room, this expression of yours will cause panic and will therefore harm the right to life and bodily integrity of the people in the crowd.

This example is taken from a famous quote by Justice Oliver Wendell Holmes:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. (source)

I don’t claim that the choice for one right over the other is always as clearcut as in this example. Indeed, it can be a difficult and controversial choice, better left to impartial judges. But those choices have to be made. Here’s a previous post on the limits of human rights. NO OTHER LIMITS on rights are acceptable. Rights can only be limited by and because of other rights, not because of prudishness, political correctness, insult, humiliation or whatever.

This blog series examines some of the existing or proposed limits on the right to free speech, such blasphemy laws, hate speech laws, holocaust denial laws, pornography, derogatory speech laws, libel laws etc.

Free speech is an extremely important human right. You can check out this post on the importance of free speech for thinking and correct thinking according to Kant. In the same post you can find the argument by John Stuart Mill in which he correctly states that permitting the expression of errors or even lies encourages us to revisit the grounds of our own beliefs and thus strengthening those beliefs.

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. John Stuart Mill

When we are confronted with opposing and controversial views, we benefit from having to justify our own views.

Given all this, any proposed or existing limitations on free speech should be strongly argued and the benefits of limitations should clearly and not marginally outweigh the harm. Any limit should also be very specific and not general. He or she who proposes a limit should prove that no other measures short of limiting rights can provide the same result. Limits can only be necessary for the protection of other rights or the rights of others. No other reasons are valid.

When two rights come into conflict, and a decision has to be made to limit one or the other right, one can look at the value that is being protected by either right. A journalist’s right to free speech can conflict with a politician’s right to privacy. If the expression by the journalist does not serve any important value, such as accountability, exposure of corruption etc. then the decision will be in favor of the right to privacy. If, on the other hand, the politician is corrupt, his privacy will be outweighed by the public interest of having a political class that does not engage in corruption.

When proposing a limit on rights, one should also be aware of the fact that this will probably not be enough to solve the problem that one is facing. Making the use of a right in a certain way a criminal act is not always enough to make that use go away. Racism, for example, will not disappear by making racists who engage in hate speech shut up. The underdog effect may even make them stronger. One should also try to do something about the causes of racism (poverty, education, etc.). The suppression of those who use rights against rights must be combined with the identification and elimination of the reasons why these people use rights against rights. Healing the symptoms but not the disease is inefficient, but some symptoms are so bad that something must be done, without losing sight of the causes of the symptoms.