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.

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.