The Anti-democrat’s Paradox

Some people don’t believe in the universal validity of human rights and democracy. They say that human rights and democracy aren’t meant for them, or aren’t meant for somebody else. They forget, however, that you can’t question, challenge or refute human rights and democracy for the simple reason that the act of questioning, challenging or refuting implies respect for human rights and democracy. Something that is unquestionable and irrefutable is by definition universal. Defending human rights and democracy isn’t the same thing as expressing an opinion, a western opinion, for example, which other cultures, states or groups can call into question. Human rights and democracy are necessary conditions for the appearance of different opinions and for debate between opinions. Hence they can’t be reduced to opinions that aren’t different from other opinions, or to an element in a struggle that they help to institute. They are above the level of opinion and questioning. Nobody can question human rights or democracy without at least implicitly accepting them.

Besides, most governments that claim the right to have a different opinion on human rights or democracy refuse to grant their subjects the same right to a different opinion—not in the least when this different opinion relates to the legitimacy of the government. This is of course a crude example of hypocrisy.

Another example of this kind of hypocrisy can be found in the so-called cultural defense of the violation or non-application of human rights. We are told that you can’t criticize a culture for violating certain human rights because all cultures must be treated with equal respect. Such a criticism would be a lack of respect for the culture in question and for cultural equality and diversity in general. This argument is hypocritical because the same equality that is claimed for cultures is not granted to the individuals inside the culture (for example equal rights for men and women, equal participation in the political process etc.).

It’s evident that an anti-human-rights doctrine and also an anti-democratic doctrine—I am in favor of a strong link between human rights and democracy because democracy is based on a subset of human rights called political rights, and because democratic practice is so thoroughly dependent on and connected with all types of human rights that the difference is sometimes hard to see—is bound to get trapped in contradictions and paradoxes.

The anti-democrat hates the air he breathes, abhors the prerequisites of his existence, his acts and his opinions. He lives by the grace of what he hates. When we take away this detestable oxygen—as he seems to request—then he will drop dead. In fact, the anti-democrat hates himself. We witness an internal struggle of somebody who fulminates against a principle that he himself applies, against something he does, against something he is, namely someone who practices opposition, who freely expresses his opinions etc. At a theoretical level, the anti-democrat seems to preserve what he tries to destroy and only destroys his own background opinions.

Somewhat simplistically, I could say that those who want to promote human rights and democracy—and I am one of them—don’t have to change the attitude of the anti-democrat. The only thing they have to do is make him conscious of what he already does. Of course, if it were as simple as that there would in fact be no threats to human rights or democracy because every threat would be an application of the principles of human rights and democracy. However, there are real and serious threats and that is why we have to change the attitudes of the anti-democrats. In the real world, contrary to the world of theory, it’s simply not true that the anti-democrat promotes democracy and human rights by struggling against them, even if democracy and human rights constitute the empire of struggle. There is no doubt that democracy and human rights can be destroyed, except perhaps in theory.

To put it in another way, democracy and human rights do not accept heretics or apostates, for the simple reason that they are the prerequisites for the existence of heretics and apostates. Democracy and human rights become a new dogma. It’s impossible to be against them. Every objection is a confirmation, because an objection (an objection in general, not only the objections against democracy and human rights) implies the acceptance of democracy and human rights.

Silencing my opponents in this way may seem to be undemocratic and a proof of inconsistency on my part. However, this one exception to the rule of general acceptance of heresy and plurality is necessary. A democracy is a society of conflicting views, but this means that attacking democracy is in principle impossible. This would be a struggle undermining its own foundation. There is a forced consensus on democracy and the rights it protects. Forced of course by logic and not by violence or physical force. The democratic values and rights and the universality of these values and rights are by definition a common frame and a common world, whether you accept this or not. You necessarily live in this world, both by accepting and rejecting democracy and human rights.

If all this were true and sufficient, I could end right here. However, that would indeed be inconsistent. Nowadays few people will be convinced by a dogma and least of all those freethinking people we need in a democracy. I still have to give reasons why we need democracy and human rights and why we need them at all times and in all places. I’m working on this here.

What Are Human Rights? (54): The Scope and Coverage of Rights, As Exemplified by Free Speech

It’s important to know what exactly is covered by a certain human right, otherwise we can’t be sure that we have a right to do what we do and we can’t properly protect others against violations of their rights. Maybe we think that a right protects a certain thing that we do but in reality this thing is outside the scope of the right. Or maybe we want to protect other people engaging in an activity but none of their rights covers this activity.

So you see the importance of the question of coverage or scope. Having a right means knowing how far this right goes. Answering this question requires an answer to at least three further questions:

  1. Who’s protected by a right? And whose activities are restricted by it?
  2. What types of actions are protected by a right, and to what extent? Where is the line between protected actions and legitimate restrictions on actions?
  3. Which obligations does a right impose on whom?

Let’s try to answer these questions by way of the example of the right to free speech.

1. Who’s protected by the right to free speech? And whose activities are restricted by it?

1.1. Who’s protected?

Both speakers and audiences are protected. A cursory look at the language – “a right to free speech” – would lead us to assume that only speakers are protected, but that’s wrong: the right to free speech includes the right of audiences to receive the free speech of others. The interests of both speakers and audiences are protected by the right to free speech. This is evident when one takes a closer look at the exact formulation of this right in legal texts.

One reason for this is a purely logical one: speech without an audience doesn’t make sense. Another, more substantive reason why the right to free speech also protects the interests of audiences has to do with the role this right plays in the search for truth. In a nutshell: audiences are necessary for the refinement of arguments. Read the post I just linked to for the full story.

Other groups that can legitimately claim protection of their speech are

  • foreigners: there’s no good reason to assume that foreigners residing within a country’s jurisdiction should not enjoy the same speech rights as citizens (the same isn’t necessarily the case for all human rights)
  • future generations: current generations shouldn’t act in ways that restrict the freedom of speech of future generations
  • companies, etc.

1.2. Whose activities are restricted?

A list of protected actors only tells us a tiny bit about how far a right goes. Defining the agents or institutions whose actions are bound by the right is equally important. Traditionally, it’s assumed that the right to free speech – like all other rights – limits the power of governments. Of course it does, but it also does a lot more. If it would only restrict a government’s power to prohibit and sanction forms of speech, then the scope of the right to free speech would be rather limited because private persons would be at liberty to restrict it as they see fit. Theoretically, although not always legally, the right also restricts private individuals, companies, churches etc. None of those agents or institutions has a right to prohibit people from exercising their right to free speech.

2. What types of actions are protected by the right to free speech, and to what extent? And which are legitimate restrictions on actions?

The scope of a right depends on decisions about who is allowed to claim it and about who is bound by this claim, but it also depends on the types of actions it protects or fails to protect. In our example, we have to define “speech”. On the one hand, it can’t just be the spoken or written word since we express ourselves in ways that don’t involve speaking or writing. Audiences also want to receive information in forms different from ordinary language. For example art, data and speech acts such as flag burning should also be covered by the right to free speech.

On the other hand, not all forms of expression or information gathering should be covered, because then everything would be covered and legislation would be impossible: every act including murder can be conceived as an expressive act, and people can find information anywhere. Not all expressive acts or information gathering can or should be legally protected. Hence, one has to draw a line somewhere.

The exact location of the line, and hence the exact scope of the right to free speech, varies from case to case and depends on the impact of language and speech acts on other rights and the rights of others. For example, if hate speech violates other people’s rights (such as their freedom of residence or movement), then this form of speech falls outside the scope of freedom of speech. Mere derogatory speech on the other hand may not result in rights violations and then falls within the scope. Speech acts such as cross burning may also, depending on their impact on the rights of others, fall either within or outside the scope (cross burning during a private party is different from burning a cross in the front lawn of a lone black family living in a racist neighborhood).

Another way of putting this is that the scope of one right is determined by the scope of other rights, or that the scope of the rights of some is determined by the scope of the rights of others. Both scopes need to balanced against each other. This balancing is usually the business of judges and there’s no way to fix the outcome by way of strict rules. It all depends on a personal judgment by a judge about the harm done by including an action in the scope of a right compared to the harm done by excluding it. Hence, the scope of a right can never be completely fixed. We can never tell exactly how far a right goes.

The same logic holds for so-called place and space restrictions and fairness restrictions. A right to free speech doesn’t imply a right to free speech in any chosen space or place: not everyone as a right to publish in the New York Times or to speak in Congress; and you can’t insist that you have a right to speak in someone else’s house or private property, unless proper balancing has resulted in a judgment that in a specific case the right to private property should give way. (The latter may be the case when private restaurant and shop owners band together to discriminate black customers and when those customers stage protests). Place and space restrictions can be justified either by the necessity to respect the scope of other rights (property for instance) or by the fact that sufficient alternative speaking channels are available (the NYT isn’t the only newspaper).

Examples of fairness restrictions are the prohibition of the heckler’s veto and the fairness doctrine. In both examples, the right to free speech of some is restricted in order to guarantee the right to free speech of others (proper balancing is again required; methods of balancing are discussed here).

Obviously, the actual as opposed to the theoretical scope of the right to free speech isn’t just determined by legitimate restrictions. In real life, as opposed to ideal theory, governments and (groups of) individuals impose illegitimate restrictions. And other, more creeping restrictions such as chilling effects, psychological biases, self-censorship and political correctness, exist as well.

3. Which obligations are imposed on whom?

A final way of measuring the scope of the right to free speech is by having a look at the nature of the obligations it creates. More wide ranging obligations make for a wider scope, and limited obligations for a limited scope. And here as well we find a common misunderstanding. (A first misunderstanding was that the right only protects speakers; another was that it only limits the power of governments). It’s not true that the right to free speech only imposes a negative duty not to restrict speech. This negative duty is important but it’s also meaningless when it’s not accompanied by more positive duties. For example, a person’s speech may not be restricted by anyone and yet her lack of education, leisure time or other resources make it impossible for her to engage in meaningful speech. Hence, the government and others have certain duties to provide resources: education, internet access etc. And let’s not forget that a negative duty to refrain from speech restrictions requires a positive duty to provide mechanisms such as courts, a police force and other means to undo or prevent speech restrictions.

Similar arguments can be made for most other rights.

PS: here are some useful links that I’ve recovered from a previous post and that are relevant to the question at hand:

A related post on the dimensions of human rights is here. More on free speech here.

Human Rights Promotion (20): Exposing Criminals

There are a number of private initiatives aimed at publishing personal information about convicted criminals. Websites such as CriminalCheck.com, ukpaedos-exposed.com, Lexbase.se and so on publish information about criminals’ place of residence after they’ve left prison, or even their contact information. Newspapers as well seem to make it a point of honor to mention personal details in their crime reporting. Sometimes the “criminals” are people who are merely suspected of a crime.

This kind of thing is said to be justified as a form of privatized human rights enforcement. If people know where criminals live or work, they can steer clear of danger and increase their physical safety or the security of their property. Public knowledge about ex-cons also serves to “shame” them – including some potential criminals – and that again is something which may reduce the risk of future crimes. In any case, the overall justification seems to be enhanced protection of the rights of possible victims through private crime prevention.

Purveyors of personal information about criminals claim that what they do is protected by free speech rights – including the right to access information. Maybe it is, but in that case we seem to have a conflict between rights. Criminals have a right to privacy, and information about their past convictions may well be part of their private lives. Publication of this information could sometimes also endanger some of their other rights, such as their right to work, to choose a residence etc. -given what we know about public harassment and discrimination of people known to have a criminal past.

What to do about this conflict of rights? Perhaps violations of the rights of criminals are an acceptable price to pay for the speech rights of the exposers and the rights of possible victims. Even violations of criminals’ right to physical security – given the possibility of violent retaliation by past victims or vigilante hotheads – may be viewed as an acceptable risk. Some even want to argue that exposing criminals is a matter of justice: too lenient court sentences can be corrected by private retaliation made possible by published information.

I guess most of us would agree that this goes too far. Even if we believe that sentences are too lenient, we shouldn’t view private retaliation as an acceptable justification or byproduct of public exposure of convicted criminals. I don’t think there’s a large constituency against the right to physical security for criminals who have served their time (or for those still serving their time). A reasonably well-functioning criminal justice system should take care of punishment. And when we don’t have a well-functioning criminal justice system, the obvious goal is to improve it, not privatize it.

The best case in favor of private efforts to expose criminals is based not on retaliation but on the rights of the exposers and of possible victims. You can make the case that criminals’ general right to privacy can sometimes be overruled in favor of the right to free speech of the exposers and the right to physical safety and property of potential victims.

On the face of it, that’s not a ridiculous claim. Different rights often contradict each other, and it’s quite common that some rights should give way to some other rights in certain specific cases. Neither is it ridiculous to claim that private initiative has in general a role to play in human rights promotion. However, I don’t think we’re dealing here with a good example of a helpful private initiative. For two reasons.

  1. Balancing acts between rights are treacherous and best left to professional judges. Convicted criminals – or anyone else for that matter – have no right to be free from shame or public humiliation but they do have a right to privacy and to be free from harassment and vigilante justice. We should take these rights seriously, even if – and perhaps because – we are dealing with the rights of criminals. These criminals have already paid the price for their crimes and should be protected against violations of their rights. An attack on their privacy should therefore be avoided if at all possible, especially if such an attack can invite further violations of their rights such as vigilante justice, work problems, family problems etc. It’s unlikely that a balancing act between the speech rights of the exposers and the rights of the criminals would be decided against the latter. A balancing exercise between the exposers’ right to free speech and the criminals’ right to privacy would almost always favor the latter. The harm done to the rights of criminals when favoring free speech rights is more important than the harm done to the rights of the exposers when favoring privacy rights.
  2. If you’re not convinced by this and you still want to make the case that criminals’ right to privacy should be limited for the sake of someone else’s free speech right, then you still face another problem. It doesn’t seem right that criminals’ privacy should give way because there’s a risk of future violations of property or security rights of others. There has to be more than a mere risk, and typically there isn’t in these cases. People engage in the exposure of criminals because of the supposed risk of having criminals close by, not because these criminals are actually engaged in crime.

More about this here and here. More posts in this series are here.

The Ethics of Human Rights (79): A Right to Do X ≠ X is the Right Thing to Do

I’ve argued before that human rights and morality are at best two partially overlapping domains. Many human rights imply a right to do wrong: free speech includes the right to insult and to break promises, two things which most reasonable accounts of morality would consider wrong. A lot of what is prohibited by morality is protected by human rights. Most would consider systematic lying – as opposed to lies of convenience – a breach of elementary moral rules, and yet the liar is protected by his or her free speech rights.

The other side of the coin: zealous pursuits of moral goals – even universally accepted moral goals such as justice and fairness – often lead to violations, sometimes gross violations of human rights. Think communism. Strong convictions about good and evil can lead to violent coercion of others who don’t conform to these convictions. FGM is another example: one of the reasons why people engage in female genital mutilation is the fear that if women are left unmolested they won’t be able to restrain their sexuality and will likely act immorally.

People often think as follows: given that they are convinced that X is the right thing to do (morally speaking) they conclude that they have a right to force others to do X. Needless to say that this conclusion is not acceptable. Life would be a hell of permanent coercion if it were.

However, it’s not impossible to imagine cases in which the morally right thing to do should be done even if it leads to rights violations: the ticking time bomb case comes to mind.

Of course, rights and morality do overlap in a lot of cases: murder is morally wrong, and there is a right to life that should be respected. I could cite literally hundreds of examples. Many things are morally wrong and at the same time violations of rights. If you have a right to do something, often you’ll also do the right thing; or better: if someone has a right to do X or a right to X, then others will be forced to do the right thing, which means acting in ways that respect that X.

More posts in this series are here.

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.

Human Rights Promotion (8): Human Rights in the U.S.A.

The United States is far from the worst violator of human rights, but neither is it the Shining City on the Hill that many take it to be. See what you make if this:

  • America, where people get into a frenzy about personal freedom when someone wants to limit the maximum size of soda cups, and yet consistently accept world record incarceration rates.
  • America, where felons can more quickly recover their right to bear arms than their right to vote.
  • America, where white people with a criminal record are more likely to get a callback after a job interview than black people without a criminal record.
  • America, where the depiction of naked people making love is less a matter of free speech than the depiction of people killing each other.
  • America, where the right to life of the unborn is more important than the right to life of the living.
  • America, where the courts express themselves on issues such as the appropriate hotness of coffee but remain strangely silent about the extra-judicial execution or torture of U.S. citizens.
  • America, the “land of opportunity”, has less social mobility than many of the so-called “socialist” countries of Europe.
  • America, where the Supreme Court has decided that anyone can be strip-searched upon arrest for any offence whatsoever – this is the same Supreme Court that doesn’t allow its proceedings to be televized.
  • Etc.

And then remember that a large majority of countries is even worse than this. Have a nice day.

The Problem With the Libertarian View on Human Rights, in a Nutshell

A few days ago, we were treated, once again, to a typical sexist rant by the awful Rush Limbaugh. This time, it seems that he’s provoked some kind of boycott. Some advertisers and listeners are turning their backs to the radio host, voting with their feet and their wallets. In a sense, this is a typical libertarian response:

[V]iolating Rush’s First Amendment rights would require state action. Rush has not been jailed for his views, nor has anyone even whispered a suggestion to that effect. There have been no calls for his radio transmitter to be jammed. No one is even demanding he be fined, which might be possible under the FCC‘s arcane and arbitrary decency laws. Instead, what his critics are doing is exercising one of their own fundamental American rights, their right as consumers to frequent the businesses they choose. (source)

I agree that this right of consumers and advertisers to shop where they want and pay for what they want is an important one, although probably not as important as libertarians have it. I have no beef with that. What worries me more and what brings out libertarians’ flawed understanding of human rights is the peculiar opinion on free speech that is evident from the quote above. It’s an opinion that libertarians apply to all human rights, namely that violations of human rights only and always  result from government actions. Actions by fellow citizens – such as boycotts of radio talk show hosts – can never, according to libertarianism, result in rights violations.

The problem with libertarians is that they take cases such as the one we’re discussing now – and which indeed do not involve violations of free speech – and then extrapolate this in order to argue that there are never any similar cases in which citizens’ actions do result in violations of free speech. In the case under review, Limbaugh’s freedom of speech is evidently secure: the government hasn’t intervened, fortunately, and the action of listeners and advertisers don’t make it harder or impossible for Limbaugh to express himself. No one’s freedom of speech presupposes other people’s duty to listen or a duty to support speech through advertising money. Limbaugh’s freedom of speech would be secure even if the boycott were large enough for him to lose his radio pulpit. People don’t need to be a talk show host in order to have freedom of speech.

However, in other cases, it is possible that non-governmental actions – actions by fellow citizens in other words – result in violations of one’s freedom of speech. Some examples: the heckler’s veto, the silencing of critics of Islam by way of threats of violence, the chilling effect of political correctness etc. The same is true for all other human rights: it’s not the government that engages in FGM, that flies planes into the WTC buildings, that attacks gay couples on the street etc.

The central libertarian teaching about human rights as expressed in the quote above (“violating Rush’s First Amendment rights would require state action”) is therefore an error of fact. The error is probably unavoidable given libertarianism’s focus on the evils of government. This is all the more regrettable given the fact that libertarianism is, in theory, a philosophical school that should be very friendly to human rights. (Robert Nozick, perhaps the most famous libertarian philosopher, starts his magnum opus with the words: “Individuals have rights, and there are things no person or group may do to them without violating their rights”).

My argument here may be lacking in nuance and may not do justice to one or other subtype of the admittedly very large and diverse family of libertarianisms. If so, please feel free to correct me in comments.

More on the related topic of dimensions of human rights is here. More on libertarianism.

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.

Measuring Democracy (8): A Multidimensional Measurement

Any attempt to measure the degree of democracy in a country should take into account the fact that democracy is something multidimensional. It won’t suffice to measure elections, not even the different aspects of elections such as frequency, participation, fairness, transparency etc. It takes more than fair and inclusive elections to have a democracy. Of course, the theoretical ideal of democracy is a controversial notion, so we won’t be able to agree on all the necessary dimensions or elements of a true democracy. Still, you can’t escape this problem if you want to build a measurement system: measuring something means deciding which parts of it are worth measuring.

You would also do best to take a maximalist approach: leaving out too many characteristics would allow many or even all countries to qualify as fully democratic and would make it impossible to differentiate between the different levels or the different quality of democracy across countries. A measurement system is useful precisely because it offers distinctions and detailed rankings and because it makes it possible to determine the distance to an ideal, whatever the nature of the ideal. Obviously, a maximalist approach is by definition more controversial than a minimal one. Everyone agrees that you can’t have a democracy without elections (or, better, without voting more generally). Whether strong free speech rights and an independent judiciary are necessary is less clear. And the same is true for other potential attributes of democracy.

Once you’ve determined what you believe are necessary attributes you can start to measure the extent at which they are present in different countries. Hence, your measurement will look like a set of sliding scales. With all the markers on the right side in the case of a non-existing ideal democracy, and all the markers on the left side in the unfortunately very real case of total absence of democracy.

(The aggregation of these scales into a total country score is another matter that I’ve discussed elsewhere).

Some candidates of attributes are:

  • Does a country include more or less people in the right to have a democratic say? How high is the voting age? Are criminals excluded from the vote, even after they have served their sentence? Are immigrants without citizenship excluded? Are there conditions attached to the right to vote (such as property, education, gender etc.)?
  • Does a country include more or less topics in the right to a democratic say? Are voters not allowed to have a say about the affairs of the military, or about policies that have an impact on the rights of minorities? Does the judiciary have a right to judicial review of democratically approved laws?
  • Does a country include more or less positions in the right to a democratic say? Can voters elect the president, judges, prosecutors, mayors, etc., or only parliamentarians? Can they elect local office holders? Does a country have a federalist structure with important powers at the local or state level?
  • Does a country impose qualified majorities for certain topics or positions? Do voters have to approve certain measures with a two-thirds supermajority?
  • Does a country provide more or less ways to express a democratic say? Can voters only elect officials or can they also vote on issues in referenda?
  • Does a country impose more or less restrictions on the formation of a democratic say? Are free speech rights and assembly and association rights respected?
  • Does a country accept more or less imbalances of power in the formation of a democratic say? Are there campaign financing rules?
  • Does a country show more or less respect for the expression of a democratic say? How much corruption is there? Is the judiciary independent?

A “more” score on any of these attributes will push up the total “democracy score” for a country. At least it seems so, if not for the conclusion that all these complications in the measurement system are still not enough. We need to go further and add additional dimensions. For example, one can argue that we shouldn’t define democracy solely on the basis of the right to a democratic say, not even if we render this right as complex as we did above. A democracy should, ideally, also be a stable form of government, and allowing people to decide about the fundamental rights of minorities is an expression of the right to a democratic say but it is not in the long term interest of democracy. Those minorities will ultimately rebel against this tyranny of the majority and cause havoc for everyone.

More posts in this series are here.

What Are Human Rights? (35): Freedom of Expression is Freedom of What Exactly?

Another way to frame the question in the title of this post is: what falls under the header of “expression”, and what not? Only if something is justifiably called expression can it enjoy the protection of the right to free expression. I’ll argue below that “expression” covers more actions than the ones we intuitively classify under that concept. Hence, freedom of expression protects more than we think it protects.

And yet, it’s not because something is expression that it automatically enjoys protection. Some actions which we readily classify as “expression” are not and should not be protected by freedom of speech. In other words, freedom of expression covers more and at the same time less than we think.

The obvious type of action that is covered by the right to free speech, and the type that represents the large majority of expressive actions, is speaking and writing in day-to-day language. Such actions enjoy a prima facie protection by the right to free speech. Nothing special about that. However, the right also applies to other expressive actions, ones that do not involve speech or writing in ordinary language:

  • some non-linguistic means of expression, such as visual art
  • some forms of protest such as the burning of a draft card, a flag or a cross
  • pornography
  • the display of symbols (e.g. a swastika)
  • etc.

These types of expressive actions can also claim protection in certain circumstances.

So, some things which are not readily identified as speech are nevertheless considered as speech acts and receive some form of protection from the right to free speech.

On the other hand, some actions that are unmistakably speech – such as hate speech, incitement etc. – are often justifiably excluded from the protection of the right to free speech.

Free speech therefore covers at the same time more and less than a cursory examination would conclude. However, the broad definition of speech that expands speech beyond mere linguistic acts does create a problem. Non-linguistic expressive actions are hard to delineate. All actions can include an expressive component, and it’s often difficult to determine when an agent intended to convey a message through her actions. So the concept can become too broad, and we risk, as a result, that freedom of speech covers all actions and becomes indistinguishable from freedom tout court. That can’t be the purpose.

Notwithstanding this problem, it’s obvious that not all linguistic or non-linguistic expressive actions should enjoy protection by the right to free speech. Terrorism is certainly an expressive action, but no one would claim that it should be protected by freedom of speech.

Beside the “freedom of what?” question, there’s another interesting one: “freedom from what?” Usually, freedom of expression, like many other type of freedom, is believed to be primarily or exclusively a freedom from government interference with speech. While that’s an important dimension of freedom, it’s not the only one. Rights have a horizontal as well as a vertical dimension: citizens can also violate each others rights, and hence freedom of expression for example is also a freedom from interference by fellow-citizens. More on the dimensions of human rights is here. More on free speech here.

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.

Types of Human Rights Violations (5): Human Rights Eating Themselves – The Case of Silencing

Some human rights make themselves impossible some of the time. Take the right to free speech: certain forms of the exercise of this right make it difficult if not impossible for others to exercise their version of the right. Free speech for some can silence others. That may sound strange because it’s usually the violation of the right to free speech that silences.

I’m not talking about obvious cases such as the heckler’s veto because those are not really interesting. Below are some more contentious examples.

Pornography

A lot of pornography depicts women as inferior and consequently contributes to the continued subordination of women. Both men and women can come to see women as subordinate objects of desire, unable or at least unlikely to speak, complain, withhold consent or resist. Pornography is then taken to provide factually accurate and morally correct information about women as silent and submissive objects of desire and sexual use. In the case of women, this process may silence them, and not only with regard to sexual consent. It’s not just that women’s speech fails to persuade or that men fail to listen (“when a woman says ‘no’ she doesn’t mean it”). It’s worse because women may even fail to attempt to persuade in the first place: they learn that their silence is the right attitude. Pornography deprives women of the capacity to speak.

Politically correct talk

Some of us use our right to free speech as a means to propagate the rule that certain words shouldn’t be said or certain topics shouldn’t be discussed because these words and topics tend to cement prejudice and to have self-fulfilling effects. Others may decide to remain silent as a reaction to this rule, because of shame, because they fear professional or reputational consequences, or because they genuinely believe that speaking in a certain manner or about a certain topic does have negative consequences for minority groups. Hence, political correctness silences certain perspectives, but probably not in the same deep manner as pornography.

Powerful voices

Powerful voices, by which I mean voices backed up by lots of money or influence, can monopolize discourse and drown out competing voices. When certain points of view are pushed by well-funded think tanks and lobbyists or by unbalanced media outlets, then less competitive or powerful perspectives are silenced.

Hate speech

When members of minority groups are consistently harassed by hateful voices, when crosses are burned in their front yards, when they’re told not to go to certain places or relate to certain persons, then they may decide that it isn’t wise to protest. They may even internalize the discourse about their inferiority, in which case they are similar to women who have internalized the pornographic female ideal.

These 4 examples of the right to free speech eating itself show that this right – and perhaps other rights as well – should include the right to conditions favorable or necessary to its exercise. When combating restrictions on free speech, we should not only include explicit restrictions but also restrictions of its preconditions. Free speech doesn’t only get hard when governments or fellow-citizens overtly interfere, censor or persecute you for speaking your mind. In free societies you can supposedly say what you want, but how can you say what you want when the “you” in question is shaped and deformed by forces operating under the surface and is turned into a subordinate object that doesn’t even think of speaking? Or, somewhat less extremely, when fear of consequences forces you to remain silent or when a lack of balance in public discourse makes it impossible for you to be heard?

This last point raises a potential confusion: the right to free speech doesn’t include a right to be heard or to be listened to; the duty to respect free speech doesn’t include the duty to listen. That would go too far, even if we admit that free speech is useless without anyone listening. There’s a difference between a duty to listen and a duty not to silence. The latter duty may imply that we need to impose some restrictions on some forms of speech. If pornography or hate speech silences women or minorities, then the right to free speech of women and minorities may require restrictions on the right to free speech of pornographers and haters. Paradoxically, restricting speech can enhance speech.

A related post about self-defeating human rights is here. More on pornography, political correctness and hate speech.

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.

What is Democracy? (53): Secret Ballot, or Public Vote?

The secret ballot has become so common in modern democracies that it’s hardly ever questioned. And yet, there are good reasons why a democratic vote should be public. So, let’s go over the pros and cons of the secret ballot, and see where that gets us.

Advantages of the secret ballot

  • The desire to avoid voter intimidation or bribery is the obvious and most commonly cited justification of the secrecy of the ballot. If people in power know how an individual votes, then this individual may be pressured to vote in a certain way. And “people in power” should be understood in a broad sense, including employers, dominant husbands etc. This justification is based on certain key features of a democracy, namely equal influence, one-man-one-vote etc. The risk of coercion is present even in societies where the general level of coercion is low and democratic values are widely shared. And it’s often the least advantaged who will be coerced, because they have most to gain from changing their vote to please someone else, and most to lose from not doing so.
  • The risk of pressure can also be present in other, more subtle forms. For example, it has been shown that people are afraid to publicly oppose authority figures. Tests have shown that when an authority figure speaks first, there’s less dissent afterwards. An open ballot can lead to forced conformity.

Disadvantages of the secret ballot

  • Implicit in the doctrine of the secret ballot is the assumption that the electoral process is no more than the aggregation of individual preferences which have been fixed previously and independently of the electoral process. However, the voting process is, ideally, also formative of preferences, and not merely an arithmetic process based on fixed preferences. That means that people deliberate and discuss about the best way to vote, about the best candidates and policies. But that also means that people have to present their positions and preferences in public. Maybe the ultimate vote can still be secret, but the initial voting intention can’t be if we want democracy to be a lively debate. But if the voting intention can be public, why not the actual vote?
  • An open ballot allows representatives to know exactly whom they are representing. One of the advantages of this knowledge is that it allows for some efficiency gains. Representatives know who has to be convinced. Those efficiency gains should improve the electoral process.
  • When you vote in an election for representatives or in a referendum, this vote has real consequences. Taken together with the votes of your fellow citizens, your vote is likely to change the lives of a number of people, and sometimes change these lives dramatically. Moreover, those people are likely to be minorities, and hence relatively powerless. It’s therefore important that voters are accountable to their fellow citizens and that they explain and justify the reasons they have for voting in a certain way. This horizontal accountability is incompatible with the secret ballot.
  • Why should we have secret ballots for voters and at the same time open votes in parliament, as is usually the case? After all, the justifications for a secret ballot for voters also apply to representatives. They also may be subject to pressure when it’s known how they vote. Maybe to a lesser extent than some parts of the electorate, since they tend to be wealthy and generally powerful, but still. Representatives are less numerous, and hence it’s easier and more effective to use pressure in order to manipulate a vote. Also, the public nature of representatives’ positions makes them vulnerable to specific kinds of pressure that can’t be applied to ordinary citizens (e.g. they may be blackmailed for indecent private behavior and thereby pressured to vote in a certain way). Of course, representative bodies are different from electorates, and therefore not entirely comparable. For example, it’s hard to see how a representative body can be accountable to the electorate when it votes in secret. Voters have to know what the individual representatives have accomplished, or not, so that they can “throw the bums out” at the next election if necessary. Also, this threat of non-reelection can pressure the representatives to act in ways desired by the electorate. So, pressure – at least some kind of pressure – is part and parcel of the representative process, whereas it’s incompatible with a popular vote. However, even if a vote by representatives isn’t entirely comparable to a vote by the people, it still is somewhat comparable, and people arguing for a secret ballot in a general election will have to explain why their arguments don’t also apply to votes in parliament.
  • Open ballots, both in representative bodies and in general, force people to restrict themselves to preferences and arguments that they can justify to others. If you vote in a certain way, and are seen to be voting in a certain way, people will ask you why. And if you’re pressured to answer this question and to justify your vote (or voting intention), it’s a lot more difficult to be motivated, or to be seen to be motivated by self-interest only. Hence, the open ballot will make voters more sensitive to the general interest, which is a good thing. Also, this public justification tends to improve the quality of preferences, since people have to think about them, argue about them with others etc. That’s the logic of the marketplace of ideas.
  • And, finally, open ballots make electoral fraud a lot more difficult, if not impossible.

Obviously, not all of these advantages and disadvantages have the same importance, and they don’t make it instantly clear whether a secret or an open ballot should be preferred in principle. Much depends on the specific circumstances. For example, in a country with a lot of economic inequality and gender inequality, the case for a secret ballot for voters is relatively strong. In general, a mixed system is probably best. However, we don’t have such a mixed system at the moment. Most modern democracies strongly favor secret ballots, and seem to ignore the real problems resulting from such a system. I believe some more attention should be given to these problems and to possible solutions, which obviously doesn’t mean that we should go to the other extreme and deny people’s right to keep their opinions to themselves if they so wish. There can’t be a duty of free speech.

Human Rights Promotion (1): Are “Social Media” and the Internet in General Good or Bad for Human Rights?

Well, it depends, as they say. “Both” is of course the only correct answer. If you’re an optimist, you would say that:

  • Social media make it easier for people to mobilize and coordinate their activities in the event of anti-authoritarian protests; to publish alerts in case of police attacks etc. They are a useful tool in strengthening resolve and confidence, given the fact that people will only turn up at potentially dangerous protest marches when they feel confident that a very large group will turn up (see here).
  • Free speech is of course greatly enhanced by the internet, including the right to information (the passive side of free speech).
  • The internet improves the marketplace of ideas; see here.

On the other hand, if you’re a pessimist, you would say that:

  • The internet and social media allow governments to monitor dissidents. For example, an authoritarian government can track dissident groups through Facebook profiles and friend networks, through Twitter communications and email etc.
  • Those governments can also use the internet to distribute propaganda, while stifling dissenting voices (they have the hardware, the software and the access to providers necessary to censor the internet).
  • Terrorist groups also have been successful users of the internet, particularly through video messages and videotaped atrocities.
  • There are the obvious privacy concerns. Etc.

The question therefore isn’t “good v. bad” but how to promote the good effects while minimizing the bad ones. In any case, internet euphoria about “twitter revolutions” and such seems very simplistic.

Why Do We Need Human Rights? (24): What is the Marketplace of Ideas?

I’ve often invoked the metaphor of the marketplace of ideas to justify the right to free speech. (See these older posts). I think it’s useful to spell out in some more detail what the metaphor means, how far it goes and how it can bolster the right to free speech.

The point is this: ideas that can get themselves accepted in a competitive market of ideas will tend to be of better quality than other ideas. The marketplace of ideas therefore improves the quality of our ideas and our thinking. If different ideas are presented in an “ideas-market”, and if that market is populated by a maximum number of free agents expressing themselves freely, then those competing ideas will be exposed to a maximum number of supporting and dissenting arguments, and the balance of arguments in favor of or against an idea will be compared to the same balance for counter-ideas. The idea with the best balance will “survive”, because alternative ideas will be seen as comparatively defective, given the fact that the arguments in favor of them are weaker or the arguments against them are stronger.

It’s crucial that there is mass participation in the argumentation and deliberation going on in this market, since only mass participation will allow for the multiplication of possible arguments and alternative ideas. Hence, it’s also crucial that there’s a right to free speech and that everyone (or at least a large number of people) has and effectively exercises this right. This mass participation of free and expressive agents will improve the quality of ideas and of their supportive arguments even before the ideas reach the market: people who know that their ideas will meet probing and massive criticism will prepare themselves for this criticism, and this preparation means that they will preemptively develop supportive arguments and undermine opposing arguments. Hence, these ideas may even change and improve before they reach the market.

Exposing ideas to the test of the market doesn’t mean telling only your friends or your countrymen about them. Ideally, the market includes the whole of humanity; people who are close to you may share your biases and hence may not see the weakness of certain arguments or may not come up with the killer counter-argument. Another metaphor that can make this point somewhat clearer is the metaphor of perspectives: if you only look at a square from one side (or from one perspective) because no one told you that there’s another side or because in your group or culture it’s not common to suppose that there’s another side, you may not come to see that the square is actually a cube.

Without this massive and global participation of free speakers, many valuable points of view or perspectives will not be made public, and many valuable objections and counter-arguments will not be known to someone defending a certain thought or idea. This can diminish the quality of the thought or idea in question.

This ultimately global nature of the marketplace of ideas gives us not only a justification of the equal right to free speech, but also a justification of the universal right to free speech.

So, the marketplace of ideas shouldn’t be understood in purely economic or literal terms, as a place where ideas are “traded” or “sold”, or “produced” and “consumed”; that wouldn’t make any sense. Of course, the result of the marketplace of ideas is that some people “trade” their old ideas for other ideas because the marketplace has proven that some ideas are hard to defend. In some sense of the word, ideas – and alternative ideas – are “exchanged”, as are arguments for and against ideas, but they aren’t exchanged in an economic sense. Also, one can argue that ideas have a cost: it may have been very hard and therefore costly to establish the set of arguments in favor of a winning idea (the marketplace of ideas is a tough place); or it may be costly in terms of status to hold on to an idea that has been thoroughly debunked in the marketplace. In the end, however, it’s never advisable to take metaphors too far or to use economic thinking where it doesn’t belong.

One important caveat: none of this should lead to the conclusion that massive support for an idea automatically turns this idea into a good one. It’s not because many people have decided that an idea is strongly supported by the best arguments and that other ideas have failed, that they are right. Maybe the marketplace of ideas hasn’t worked properly, because some of the prerequisites aren’t there (massive participation, strong speech rights, an educated citizenry etc.). Maybe the popular assessment of the balance of arguments rests on nothing more than prejudice. If you insist you can call this a “market failure”.

Here’s a quote that nicely illustrates my point – it’s about scientific discourse but it applies generally:

Science works very well as a social process, when we can come together and find flaws in each other’s reasoning. We can’t find the problems in our own reasoning very well. But, that’s what other people are for, is to criticize us. And together, we hope the truth comes out. … [W]hen people reason on their own, they’re unable to arrive at a good solution, at a good belief, or to make a good decision because they will only confirm their initial intuition.

On the other hand, when people are able to discuss their ideas with other people who disagree with them, then the confirmation biases of the different participants will balance each other out, and the group will be able to focus on the best solution. Thus, reasoning works much better in groups. When people reason on their own, it’s very likely that they are going to go down a wrong path. But when they’re actually able to reason together, they are much more likely to reach a correct solution. (source)

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.

The Causes of Human Rights Violations (26): Are False Beliefs Useful For Human Rights?

I would say yes, but only some. For example, if we go around and successfully propagate the theory that wrongdoers will burn in hell, then this may have a beneficial effect because fear may inculcate morality (as all deterrence theories about crime have to assume). Similarly, false beliefs about the efficacy of law enforcement and the honesty of law enforcement officials also help.

Many false beliefs about high levels of risk can produce risk-averse behavior which in fact lowers the risk and makes it more likely that human rights are protected. For example, if people wrongly believe that their privacy is threatened in certain circumstances, they will take action to secure their privacy and make their privacy more secure than it already was. (More about human rights and risk here).

Human equality – “all men are created equal” – is obviously a false belief when taken as a fact, and in the quote it is taken as such. People are born with different abilities, talents, endowments, advantages etc. And yet we act as if the phrase is more than just a moral imperative. It seems like it’s easier to convince people to treat each other as equals when we say that they are equals.

Certain forms of self-deception also seem to be beneficial from the point of view of human rights:

Self-deception … may be psychologically or biologically programmed. The psychological evidence indicates that self-deceived individuals are happier than individuals who are not self-deceived. … Lack of self-deception, in fact, is a strong sign of depression. (The depressed are typically not self-deceived, except about their likelihood of escaping depression, which they underestimate.) Individuals who feel good about themselves, whether or not the facts merit this feeling, also tend to achieve more. They have more self-confidence, are more willing to take risks, and have an easier time commanding the loyalty of others. Self-deception also may protect against a tendency towards distraction. If individuals are geared towards a few major goals (such as food, status, and sex), self-deception may be an evolved defense mechanism against worries and distractions that might cause a loss of focus. Tyler Cowen (source)

We can claim that, to some extent, happiness, self-confidence, achievement and risk taking are indicators of and/or conditions for the use of human rights. Happy and confident people who are willing to take risks are more likely to engage in public discourse, to vote, to associate and to exercise their human rights in other ways. If that’s true, and if there’s a link between happiness, confidence and self-deception, then self-deception is another example of a falsehood that is beneficial to human rights.

I could go on, and I also could, very easily, list several counter-examples of falsehoods that are detrimental to human rights (take the 72 virgins for instance, or communism). The point I want to make is another one: should we actively promote certain false beliefs because of their beneficial outcomes?

Most of us believe that there is something like a benevolent lie and that lying is the right thing to do in certain circumstances. A strict rule-based morality is hard to find these days. Few would go along with Kant who said that we shouldn’t lie when a murderer asks us about the whereabouts of his intended victim (“fiat justitia et pereat mundus“). People tend to think that the expected consequences of actions should to some extent influence actions and determine, again to some extent, the morality of actions (“to some extent” because another common moral intuition tells us that good consequences don’t excuse all types of actions; most of us wouldn’t accept the horrible torture of a terrorist’s baby in order to find the location of his bomb).

On the other hand, we should ask ourselves if such an enterprise, even if we deem it morally sound, is practically stable. Some false beliefs have proven to be vulnerable to scientific inquiry and public reasoning (hell could be one example). It’s not a good idea to build the system of human rights on such a weak and uncertain basis. But perhaps we should do whatever we can to promote respect for human rights, even if it’s not certain that our tactic is sustainable.

And yet, actively promoting falsehoods is in direct opposition to one of the main justifications of human rights, namely epistemological advances (I stated here what I mean by that). We would therefore be introducing a dangerous inconsistency in the system of human rights. We can’t at the same time promote the use of falsehoods and argue that we need human rights to improve thinking and knowledge. So we are then forced to promote the use of falsehoods in secret – which is necessary anyway because people will not believe falsehoods if we tell them that they are falsehoods – but thereby we introduce another inconsistency: human rights are, after all, about publicity and openness.

The Causes of Human Rights Violations (24): Political Rhetoric, Violence and Free Speech

My two cents about the shooting of Gabrielle Giffords:

  • The attack was obviously politically inspired, even though the shooter may have been insane. An insane act isn’t necessarily apolitical. There may or may not be a direct causal link between the attack and the “heated political rhetoric” that has come to characterize American politics and that often borders on incitement. (Compared to other western democracies, the political language is indeed extreme in the US). If there is such a link, it will be very hard to establish, given what we know about the psychology of the attacker.
  • In general, violent rhetoric can contribute to actual violence (see this paper for example). The case of the Rwanda genocide is well-known. And we don’t need to go and look at extremes in order to find cases of hate speech turning into hate crime. There are not a few pedophiles who have had there whereabouts shouted from the rooftops and who suffered the consequences. Given the omnipresence and ease-of-use of the media in developed societies, what is published and broadcast through these media may very well nurture or even provoke extremism and hate in society. It’s futile to deny this possibility.
  • This general conclusion does not warrant the automatic linking of a case of violence to instances of political rhetoric that seem to be a possible inspiration. In other words, it’s not because Sarah Palin was silly enough to publish a map with cross-hairs “targeting” Giffords (among others) in a purely political and non-violent way, that her actions caused the attack. Maybe these actions contributed, maybe not. Most likely we’ll never know. And even if they did contribute in driving a sick person over the edge – which is not impossible – then they are most likely only one element in a large set of causal factors, including the perpetrator’s education, medical care (or lack thereof), the ease with which he could acquire a gun etc. That large set doesn’t drown individual causes but it does diminish the importance of each (possible) cause. Human motivation and the determinants of human action are almost always highly complex. (Something which is too often forgotten in criminal sentencing).
  • Given the general possibility of speech resulting in violence, is that possibility a sufficient reason to limit our freedom of speech, even before the actual violence occurs? Yes, but only in very specific cases, namely those cases in which the link between speech and (possible) violence is clear. John Stuart Mill used the example of an excited mob assembled in front of the house of a corn dealer accused of starving the poor. Hate speech in such a setting is likely to lead to violence, while the exact same words printed in an obscure magazine are not. The words in the magazine should be protected by freedom of speech; the words of the mob leaders probably not.
  • Yet even when words should be left free by the law, morality requires of speakers that they consider the possible consequences of speech.
  • Are the events we witnessed recently of the same nature as the words of the mob leaders? And what about similar recent events? I don’t think so. Which means that the people concerned have not abused their freedom of speech.
  • Does that mean that they used their freedom in a good way? No, it doesn’t. Heated rhetoric is almost never the best way to talk, not even for the purposes of the speaker. It doesn’t tend to accomplish a lot or to further anyone’s interests (apart from the interest in getting attention). So those of us who insist on “turning it down a notch” have good reasons to do so. This insistence obviously doesn’t imply curtailment. It’s just a question, and it deals with form rather than content. People are generally too fast to claim their right to free speech when confronted with criticism of the way in which they use or abuse this right. Criticism of speech doesn’t automatically imply the will to prohibit speech, and freedom of speech doesn’t mean freedom from criticism. Quite the opposite.

More here and here.

Why Do We Need Human Rights? (20): Does Polarization Invalidate Freedom of Speech?

(Perhaps it’s best to read this post together with a previous one dealing with a similar topic).

One of the justifications of the right to free speech is an epistemological one: free, equal and massive participation in public discourse produces better decisions and opinions because it allows for

  • the appearance of a large number of arguments and perspective and
  • widespread criticism and examination of possible decisions and opinions.

Looking at possible decisions and opinions from a variety of perspectives and listening to a maximum number of critical arguments for and against, improves the quality of decisions and opinions. Freedom of speech is not, in theory, necessary for this improvement, since a single talented individual can, in isolation, imagine perspectives and counter-arguments. However, better than to trust the imagination and the limitless neutrality of an individual, it is better to use the resources of the crowd, and there is no better way to do that than to protect freedom of speech as an equal right for all. This idea has been called the marketplace of ideas.

An added advantage of involving the crowd in public discourse is that individuals will anticipate criticism and will therefore make better use of their imagination and improve their arguments even before entering the quality enhancing public discourse. (I’ve made a somewhat more profound version of this argument here).

Intuitively, one would expect that this marketplace of ideas, protected by freedom of speech, should result in some convergence: bad arguments and weakly argued opinions and decisions would lose support in public discourse, because they are publicly shown to be bad or weakly supported. The majority of people should then gravitate towards the better opinions. However, we often see the opposite, namely polarization, i.e. increasingly sharp divisions in society with groups having extreme opinions that are strongly held and that aren’t thoroughly examined. Often, the strength at which those opinions are held bears no relation to the strength of the arguments in favor of them. That’s the marketplace of ideas equivalent of harmful but popular products.

We then have to ask ourselves which of these two statements is true:

  • Polarization is the result of an insufficient or inefficient functioning of freedom of speech and public discourse. In which case we can hold on to our epistemological justification of that right.
  • Or polarization happens notwithstanding freedom of speech. In which case we seem to lose a possible justification for freedom of speech.

“Both” is probably the best answer. Freedom of speech facilitates public discourse and improves the quality of it, but only if it is used. If people decide not to use freedom of speech, and decide not to listen to opposing views or to argue with opponents, then this freedom can’t improve public discourse. Yet the absence of a proper use of this freedom does not invalidate the freedom itself. It does make it harder to justify this freedom as something beneficial. If many people don’t use freedom of speech to improve public discourse it becomes more difficult to argue that we should protect freedom of speech because it improves public discourse. And yet, this doesn’t undermine the theoretical or philosophical argument that freedom of speech can – in theory – improve public discourse. So the inherent desirability of free speech remains, even if the practical desirability is weak. (Note that there are other possible justifications for freedom of speech, some of which have nothing to do with the topic we’re discussing here).

Also, we often see that polarization is the result of an insufficient or inefficient functioning of freedom of speech and public discourse. Cass Sunstein, for example, wrote about the “law of group polarization” and showed that polarization is to some extent the result of exclusively intra-group deliberation (climate change deniers who discuss their views only with fellow-deniers tend to come out of these discussions with an even stronger version of their initial opinions).

And finally, we should be careful in our estimates of polarization. Some high profile cases of polarization can give the impression that polarization is rampant. But people disagree about the extent of polarization. It all depends what topic you’re dealing with, and things differ from country to country as well. Also, the political class can make polarization look more common than it is among the general population. If polarization isn’t as widespread as we think it is, then its impact on freedom of speech is also smaller.

More on polarization here.

The Ethics of Human Rights (40): Human Rights of Future Generations, Ctd.

Do future generations of people have human rights claims against those of us who are currently alive? Can we who are currently alive violate the human rights of future generations? And if so, what should we do to avoid it?

Future generations – as opposed to past generations – can incur harm following our actions, and can therefore, prima facie, invoke rights claims against us (namely for those types of harm that are rights violations).

One thing to keep in mind when discussing the rights of future generations is the following assumption: future people have the same values and preferences, and the same impediments to these values and preferences. Human rights are in essence tools to realize values and preference, and often take away impediments to values and preferences. Following this assumption, future generations can be said to require human rights to the extent that those currently alive impede their values and preferences. However, that need not be the case. Maybe future generations will have other values or preferences, or maybe they will face different impediments that can’t be removed by human rights, or maybe they’ll have found other ways to remove certain impediments. Maybe in the future there won’t be religion, scarcity, states or animosity, but different values and impediments. Still, I’ll keep the assumption in place, both because I think it’s likely that future generations will be much like ourselves, and because the concept of “human rights of future generations” wouldn’t make any sense if that is not the case (and I really want to write this post).

Actions which affect the human rights of future generations

The easy thing to understand about the harm we, the present generations, can do to future generations is the consequentialist part: it’s fairly obvious that, given the stated assumption, some of our – potential and real – current actions can or will have negative consequences for future generations, and that some of these consequences can become worse as time goes on (see this post on the effect of time on rights violations).

Take resource depletion for example. If we now squander all or a substantial part of the earth’s oil reserves, it’s likely that future generations, and particularly those generations somewhat further in the future, will have a standard of living far below the minimum required by human rights (again, given the assumption that they need fossil energy because their preferences haven’t changed or because they haven’t found an alternative).

Present generations therefore exercise power over future generations, much like a state exercises power over its citizens. And much like a state, the present generation can be said to be bound by the human rights of those who are subjected to its power. With the exercise of power comes the duty to respect the rights of those who are subjected to power.

Risk

There may be a problem with all this, however. Contrary to the harm that is inflicted on currently living people, by their state or their powerful fellow citizens, the harm inflicted on future generations is rarely if ever a certainty, and never verifiable.

If we again take the example of resource depletion (but many other examples would do just as well), it may be the case that future generations will have invented the technology necessary to adapt to a world without oil. The chances of this happening may be small or may be large – we just don’t know and so we can’t take it into account in our considerations as to whether to adapt our behavior as a way to respect the rights of future generations.

We may assume that our actions (or inactions) can lead to rights violations in the future, but we’re never certain. So should we adapt our current behavior or not? We can verify if certain types of behavior lead to rights violations in the present, and – if they do – consequently adapt our behavior. (If lowering taxes increases poverty then we should avoid that policy). We can never verify if certain types of behavior lead to rights violations in the (distant) future. We can only guess that there’s a risk, perhaps based on similar past or present experiences. But the quality of those guesses remains uncertain.

Hence, it would seem that future rights violations can’t have the same moral standing as present and real rights violations. Or maybe they’re not even rights violations at all. Indeed, we normally don’t view the risk of a rights violation as equivalent to or as equally damaging as a real violation. Or maybe a very, very high risk of a future rights violation – assuming a good guess – equates an actually occurring rights violations?

I think all this is to some extent moot. When faced with a risk of a rights violation – or better the perception of a risk – the moral thing to do is to try to avoid the rights violation from occurring in the future, and adapt one’s behavior, in the same way as one would do when faced with a risk of causing a violation of the rights of people currently living. So the uncertainty of violations of the rights of future generations makes them no different, in some respects, from violations of the rights of current generations. Also the latter are – ex ante – uncertain, and the moral thing to do is always to adapt one’s behavior in order to minimize the risk of immoral behavior.

Some would claim that comparing future violations of the rights of living people to future violations of the rights of future generations is a mistake. Living people have rights which can – given a certain risk – be violated in the near or distant future (depending on the lifespan of those people) by our current behavior. Future generations on the other hand don’t exist, yet (and may never exist, see below), and hence can’t have anything, including rights. However, they will have rights in the future, when (and if) they live. To claim, as I do here, that we can violate future rights now doesn’t mean that we have to claim that these future rights have to exist now.

Tradeoffs between the present and the future

What to do when faced with a tradeoff between violating the rights of future generations and violating the rights of present generations? It depends on the best risk estimate of either, as well as the gravity and the number of people involved in either case, keeping in mind the fact that risk, gravity and number estimates of violations of the rights of present generations are probably better (because we can test them). Given this relative ease, we should give additional weight to the simple fact that we are dealing with really existing people as opposed to potential future people.

For example, we know that closing down an opposition newspaper is very likely to stifle free speech for a significant number of currently living people. We’re not absolutely sure of this consequence, but the risk is very, very high. We know this risk because we or others have tested it in the past. Now, suppose that we should choose between this policy and another one, for example allowing a substantial increase in green house gasses. Suppose also – I know, it’s weird but bear with me – that these two policies are, for some unspecified reason, mutually exclusive. The policy of increasing green house gasses risks putting future generations in danger of survival. When comparing the costs of both policies, we conclude that the level of risk is roughly similar (say 90% probability that the expected consequences – respectively stifling free speech and increased global warming – will indeed occur), but the gravity of the consequences is obviously much greater in the case of the second policy, as are the number of people concerned. Yet, we may still reasonably choose to implement the second policy and avoid the first because we’re more certain of our risk estimate for the first.

Actions which affect the existence or composition of future generations

Let’s take another example of current actions that have an impact on future generations: in this example, our actions do not deplete resources but have an influence on the very existence of future generations. We may destroy the earth for instance, making the very existence of future people impossible. Or we may intervene in procreation in such a way that future people will be completely different people than those who would have lived had we not intervened (that’s Derek Parfit’s so-called non-identity problem).

In both cases, our actions affect the very existence of future people, rather than their rights. And an effect on the very existence of people can’t, in itself, be considered a rights violation since there’s no right to exist. I’ve argued elsewhere why this is the case. (Of course, actions which affect the existence or composition of future generations can have, additionally, other consequence beside the existence or composition of future generations, and some of those other consequences can imply rights violations).

In other words, only the rights of actually existing persons – whether they exist now or in the future – are important. Potentially existing persons who will never exist because of our actions, do not count. Or, putting it in yet another way: the non-identity problem is not a problem in this context. The fact that the very existence or composition of future generations depends on our actions doesn’t have, in itself, any consequences for the human rights of future generations. The impact of our current actions can result in rights violations of future generations, but not if this impact is limited to the existence or composition of future generations. And the reason for this is the absence of a right to existence.

Duties instead of rights?

In order to avoid the problems created by talk of rights of future generations – namely the problems of uncertainty and of tradeoffs – it would perhaps be better to abandon all talk of rights of future generations, and focus on the duties of present generations towards future generations. And yes, there can be duties without corresponding rights: if I have a duty to respect the promises I make to you, you don’t have a corresponding human right to have these promises respected.

Freedom of Expression and the Internet

The internet is undoubtedly a huge boost for freedom of expression, and not only a quantitative boost. It has certain qualitative characteristics that older media don’t have, which make it particularly beneficial for free speech.

A first reason why the internet promotes free speech is its relative cost: it has made speech much less expensive. You even don’t need to own a computer since you can, with relative ease, use a public one. And even the cost of a computer pales compared to the cost of many older media.

Another reason is that governments find it much more difficult to censor speech on the internet. Speech is no longer bound to a particular carrier which can be easily confiscated or destroyed, or to a particular territory where a state can exercise its power. People can publish on websites in other countries without being there. Of course, governments do retain some considerable censorship power over the internet, as is demonstrated by the case of the Great Firewall of China, but it’s safe to say that this power is relatively weak compared to government’s powers over traditional media, precisely because of the international character of the internet.

Unfortunately, we see that private actors sometimes replace the government as censors. The discussions on net neutrality for example result from some cases where internet providers have blocked access to competitor sites or favored access to friendly or related sites (see the case of Telus blocking access to a labor union website). One could also claim that Google, for instance, despite the good it does for free expression, also in a way limits it, since it systematically channels people towards speech that already has much exposure and freedom, and “buries” all the rest (read more about this here). There is still domination and inequality on the web; the question is whether on average the internet has done more to limit it or to advance it. I believe the former.

A third reason why the internet promotes free speech is the gradual disappearance of middle men. You don’t need editors, publishers or peer review to publish your views. In traditional media, these middle men normally filter out a lot of speech, often to the benefit of the public but never to the benefit of speech.

So these are three reasons (among many others) why the internet expands the amount of speech and promotes free speech in a quantitative way. But it can also be argued that the internet has improved speech in a qualitative way. That may be a counter-intuitive claim, given the amount of bullshit that’s present on the web, and yet I think it’s true for many pockets of the internet. Because the internet creates a quantitative boost for speech, it also produces a qualitative one. The internet has allowed more people to speak, listen and discuss, and it’s a common argument in philosophy that widespread participation in discussions tends to improve the quality of people’s opinions, under certain ideal circumstances. I won’t make the detailed argument here, since I’ve done that many times before. In a few words, the argument boils down to this: the freedom to speak, the equal freedom to speak, and massive use by large numbers of people of this freedom, result in the appearance and confrontation of a large number of points of view and of perspectives on issues. It means that a proposal or opinion or policy is subjected to intense scrutiny and criticism. If it survives this, it is bound to be of better quality.

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.

Why Do We Need Human Rights? (14): Does Confirmation Bias Invalidate Freedom of Speech?

Confirmation bias is the tendency of people to seek out evidence that is favorable to their original beliefs, and neglect evidence that is unfavorable. It’s a form of self-deception that we all suffer from, to a different extent, and that leads us to stick with our original beliefs rather than review them, even if a whole lot of contrary evidence is available. We just seem to be very good at ignoring it and focus on other, confirming evidence, even if the quality of this other evidence is dubious. The “stickiness” of beliefs resulting from confirmation bias is in turn an important cause of polarization of beliefs, the “dialogue of the deaf” style of political discourse, and “gladiator politics“.

Now, why is there confirmation bias? We all value consistency in our identity and self-image, and are afraid to acknowledge mistakes, especially regarding values or facts that are and have been for decades the foundation of our identity. We want to feel good about our “original” and fundamental views and affiliations. If our views are intertwined with our group affiliations, then the elements of group pride and loyalty also promote confirmation bias and our disregard of evidence that contradicts our views. It’s then not only our views that are at stake, but also our sense of belonging and the future of our group. Suppose evidence is found that Jesus Christ could never have lived. If we, as Christians, disregard this evidence, taint it or reinterpret it, then we are able to keep feeling good about ourselves and our previous thinking – we feel like consistent human beings with reasonable thinking powers and without a strong propensity to error – but we are also able to support the continued existence of our group, and that’s important for the wellbeing not only of ourselves but of millions of people. Our pride in our belonging, our identity and reasoning powers, as well as our loyalty to the other members of our group are powerful forces that produce confirmation bias. Patriotism and nationalism can also be seen in this light.

How does this relate to freedom of speech? This human right is often justified by and grounded in the argument that the public and equal appearance of a maximum number of viewpoints and arguments for and against something enhances the quality of thinking, much like the observance of a physical object from different angles yields a better understanding and knowledge of that object. It’s the famous concept of the “marketplace of ideas” where opinions have to enter the struggle of competition, review and criticism. These opinions are then either rejected or they come out better at the other end. The same idea justifies democracy because democracies – ideally – use freedom of speech to find and test the best policies and laws. Equal participation of a maximum number of citizens should then guarantee the same market processes. (More on that here, here and here).

That, of course, is an ideal. In reality, we see that even in free societies public discourse is often – but not always – far removed from the search for truth and improved thinking that should characterize it. Confirmation bias is one of the causes of the distance between reality and ideal because it inhibits the public examination of viewpoints and arguments. Propaganda, dysfunctional media, inept institutions, group pressure, vote buying, disregard of expert views, irrational behavior, deliberate polarization etc. are other causes. But here I’ll focus on confirmation bias.

At first glance, confirmation bias seems to undermine the whole “epistemological justification” – if I may call it that – of free speech and democracy. The more information there is (thanks to free speech), the more likely that people can just pick those pieces of information that confirm their biases, and I understand the word “information” in a broad sense, not just including facts but theories and arguments as well, however “wild” they are. So freedom of speech seems to be more like a bad thing, when viewed in this light.

However, in order to know if something is really bad you have to imagine what would happen if it went away. Without freedom of speech, the appearance of new and conflicting evidence is much less likely, and hence it’s more likely that people stick to their biased and pre-existing beliefs. Freedom of speech doesn’t promote confirmation bias, but doesn’t eliminate it either. People have to do that for themselves. However, freedom of speech gives people the tools to combat confirmation bias, if they are so inclined. And therefore freedom of speech is neither invalidated nor validated by confirmation bias.

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.

Why Do We Need Human Rights? (13): Why Do We Need Freedom of Expression?

Here’s a list of some of the traditional rationales for the right to free speech (Eric Barendt for example has identified some of these in his book “Freedom of Speech“):

1. Freedom of speech serves the search for truth

There’s a long tradition in philosophy claiming that freedom of speech and the equal right of everyone to express himself or herself in public on any possible topic improves the quality of opinions and knowledge. Rawls, Mill and Kant for example have fleshed out this claim. In the words of Alexander Meiklejohn:

Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed. (source)

Or in the words of Justice Oliver Wendell Holmes, in Abrams v. United States (dissenting):

The best test of truth is the power of the thought to get itself accepted in the competition of the market.

2. Freedom of speech serves individual self-fulfillment

People who can express themselves freely are better placed to develop their personality and identity. When you can say what you think and believe, you can better give shape to your thoughts and beliefs. Also, thoughts and beliefs depend heavily on the possibility to receive information, which is something that in turn depends on free expression. On top of that, persuasion is an important element of wellbeing: people who can persuade others feel better about themselves. And when they can persuade others, they can form communities and associations, and belonging is another important aspect of wellbeing and self-fulfillment. Finally, when the right to free expression is respected, people can better enjoy culture, education and other things that improve wellbeing.

3. Freedom of speech improves the functioning of democracy

Even for a minimal democracy (regular, free and fair elections for representatives) freedom of speech is very important. Candidates have to be able to advertise themselves and their policies and argue amongst themselves. Lobbyists should be allowed to make their case (publicly and transparently, of course). Etc. But democracy should be more than that. Ideally, democracy requires deliberation among the people on the best possible policies. It’s obvious that this deliberation requires free speech. More on democracy and free speech here.

4. Freedom of speech is a check on the corruption of power

People have to be able to receive information about the functioning of government. Free speech is a necessary prerequisite of government accountability. Freedom of information acts are just as much an element of free speech as a free press, and both are required to counteract corruption and abuse of power. At the margin, elements of free speech such as freedom of information, a free press and the right to protest can make the difference between freedom and tyranny, but they also limit the risk of lesser evils such as administrative corruption, betrayal of election promises, covert government activities etc.

5. Freedom of speech is a right that is required for the protection of other rights

Historically, it has been the case that other rights have depended on freedom of speech for their full protection. The civil rights movement and the struggle against racial discrimination in the U.S., for example, would have been impossible without freedom of speech (which doesn’t mean that the right to free speech of the proponents of equal rights was never restricted). Equally, the feminist struggle for equal voting rights for women was made much easier by freedom of speech. And finally, the right to religious freedom cannot be separated from freedom of speech. And there are many other examples.

6. Freedom of speech serves prosperity

Without freedom of speech there is less innovation and less trade. Scientists who develop new products or services need freedom of speech, and business people have a lot of difficulties trading or advertising without it. Hence, it can be said that economic growth is fostered by free speech. But free speech doesn’t only promote prosperity in general (on average); it also benefits the poor. The squeaky hinge gets the oil. If the poor aren’t able to make their case, they won’t get help.

More on freedom of expression.

Discrimination (3): Libertarianism and Private Discrimination

Prominent libertarian politician Rand Paul recently caused a stir by claiming that he didn’t support parts of the Civil Rights Act of 1964, specifically the parts applying non-discrimination legislation to private businesses. Like most libertarians, he believes that if private restaurant owners, for example, want to prevent blacks from eating there, then that’s their right. Similarly, banks should be allowed not to lend to blacks, real-estate agents not to sell to blacks, private homeowner groups should be able to band together and keep out blacks etc. Same when the targets are Jews, gays, immigrants and so on.

The standard libertarian position is that only government enforced or government protected discrimination is wrong. Private actors should be allowed to discriminate. A private restaurant owner for instance should be allowed to refuse to serve blacks. However, government rules forcing restaurant owners not to serve blacks are not allowed, even though for the blacks in question the results are much the same.

It’s not that most libertarians think this kind of discrimination is acceptable and would engage in it themselves. They reject legislation against private discrimination because they consider the right to private property and the sovereignty of property owners much more important than the fight against private discrimination. They also argue that market mechanisms, which they also like a whole lot, will – over time – weed out such discrimination. A restaurant owner who refuses to serve blacks will do a lot worse than his competitors who are more open minded. He will lose benefits of scale, will have to raise his prices and ultimately also lose the bigoted white customers who detest eating in the presence of blacks but detest even more paying unreasonable prices.

Here’s a good statement of the libertarian position by a self-confessed libertarian:

(1) Private discrimination should, in general, be legal (this includes affirmative action preferences, btw). Many libertarians would make exceptions for cases of monopoly power, and most would ban private discrimination when the government itself ensured the monopoly by law, as with common carriers like trains; (2) The government may not discriminate. If necessary, the federal government should step in to prevent state and local governments from discriminating; (3) The government may not force private parties to discriminate, and the federal government should, if necessary, step in to prevent state and local governments from forcing private parties to discriminate; (4) The government must protect members of minority groups and those who seek to associate with them from private violence. If the state and local government won’t do so, the federal government should step in. (source)

Note the mention of violence in this quote: private violence against blacks isn’t allowed, private discrimination is. Why the difference? Again, property rights. Laws against violence don’t usually violate anyone’s property rights.

Now, what’s the problem with this libertarian position? Property rights are obviously very important. You don’t need to be a libertarian to believe that. I argued strongly in favor of property rights here. Likewise, the free market does an enormous amount of good. The problem with the libertarian view is absolutism and a rejection of value pluralism. There are many values in life, and many different strategies to realize them. And sometimes, some values or strategies come into conflict with each other. When that happens – as is the case here – you have to be willing to balance them and see which one should take precedence. Privacy and free speech, for example, are both important, but what do you do when a journalist exposes the private life of a public figure? You balance the right and wrong: which value is better served by publishing? Free speech or privacy? In some cases, we may believe that free speech is more important than the right to privacy (for example when the politician’s private life has relevance for his functioning). In other cases privacy will trump speech (for example when the facts published have no political meaning). Such decisions can only be taken case by case because the specifics always differ. Doctrinaire and absolutists positions in favor of one value or the other won’t do. And unfortunately many libertarians, and certainly Rand in this case, seem to think that their preferred values – property, freedom and the market – should always have priority over all other values.

Is legislation such as the Civil Rights Act an infringement of property rights and the freedom to do with your property as you want? Of course it is. Are such infringements always wrong? Of course they aren’t. Sometimes they are a necessary evil to gain a greater good.

There a resemblance between the libertarian views on private discrimination and the more widely accepted view in the U.S. that free speech rights and the First Amendment can only be invoked against the government, as if private actors can’t violate people’s right to free speech. The dominant U.S. free speech doctrine reflects an antiquated view of human rights as exclusively vertical. Of course, the government probably does most of the violations, particularly of a right such as free speech, but probably not in the case of the right not to be discriminated against. That’s more of a private monopoly, and markets, protest marches, boycotts, activism etc. won’t solve that problem by themselves. Just look at the market: it didn’t solve segregation, and neither would it have had it been more free. In fact, it’s likely that bigoted white customers who detest eating in the presence of blacks, will not find themselves in white only and hence more expensive restaurants, but will band together and boycott non-segregated restaurants which then lose far more business among whites than they gain from allowing blacks. Such boycotts are absolutely in line with property rights and the free market, which shows that the market can make discrimination worse instead of destroying it. (For a more sympathetic view of the power of the market, go here).

Strangely, Rand Paul himself invoked the parallel between private discrimination and free speech, but twists it to serve his goals:

INTERVIEWER: But under your philosophy, it would be okay for Dr. King not to be served at the counter at Woolworths?

PAUL: I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things… It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior. (source)

So we have to tolerate discrimination that actually harms real people, just like we tolerate awful speech that most likely doesn’t hurt a fly? Words don’t equal behavior, although sometimes there may be a thin line between them (which is why hate speech laws can sometimes be justified).

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.

The Democratic Destruction of Democracy

We’re all familiar with the phrase. Democracies allow so much freedom that anti-democratic forces can develop inside of them and ultimately destroy them from within, using the very tools that make democracy what it is (freedom of speech and association, elections etc.). The archetypal case is, of course, the Weimar Republic of pre-WWII Germany (although one can claim that Weimar wasn’t really a democracy and Hitler’s rise to power didn’t occur through purely democratic means). The democratic destruction of democracy is also, misleadingly, called the self-destruction of democracy, as if it is the democracy as a whole rather than an abusive part of it that causes the destruction.

However, I also have a problem with the phrase “democratic destruction of democracy”. There is, after all, nothing democratic about the abuse of democracy by anti-democratic forces trying to get elected with the sole purpose of ending all future elections. Their actions may be democratic in the strictly legal sense, but not in the moral or philosophical sense.

I believe the “democratic destruction of democracy” means something else. Most people, and even those who care about democracy and are willing to die in its defense, view one of its basic characteristics – the plurality of opinion – as a suboptimal state of affairs, and something to be overcome. We all believe strongly in certain opinions, and we may even consider those opinions to be more than mere opinions. In other words, we make truth claims about our opinions. That means that we believe that other people, who have adopted other opinions, are wrong, mistaken. We want to convince them, but that means that we want to eliminate the plurality of opposing opinions. It also means that we want to abolish democracy, because it’s impossible to imagine a democracy in a world of unanimity.

Paradoxically, the most typical democratic activity – persuasion – has the objective of ending democracy. I wouldn’t call it a “destruction”, because the end of democracy is a byproduct, not a conscious goal. Of course, this democratic (let’s call it) termination of democracy is possible only through persuasion, and by the looks of it, that’s not a very sharp tool. Hence the termination is still a rather abstract and long-term possibility. The undemocratic termination of democracy does not suffer from tool-limitation, and is therefore a much less theoretical possibility.

This undemocratic termination can occur inside or outside of democracy, with the tools offered by democracy or with other tools. Anti-democrats can decide to try to get elected, or they can stage a coup. Or whatever. Common to many anti-democrats is impatience with persuasion. Some are motivated simply by power or money, but many believe that the “democratic masses” just can’t see the light and are immune to even the best arguments. Instead of persuasion, the impatient anti-democrats are led to believe that imposition of a worldview is the only remedy for error and mistake. Re-education camps are quick to follow, and extermination camps for those for whom even persuasion in the form of re-education is impossible.

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)

Freedom of Expression, or a Duty of Expression?

I often have the impression that people transform the right to free expression into a duty to free expression. And I don’t think that’s a good thing. For example, Muslims in western countries are often told that they should distance themselves from the more violent members of their religion. We require them to speak out against Muslim terrorism.

Another example: politicians, especially in the U.S., are required to speak out on a number of subjects, e.g. abortion, same-sex marriage, their faith in God etc. As if it would be a disaster to elect a politician who happens to doubt about abortion. After all, many people do (myself included).

A somewhat exaggerated view on democratic transparency is undoubtedly a small part of the explanation for this. Democracy can’t function without public knowledge of politicians’ opinions, or without some sense of what our fellow citizens believe (part of democracy is group formation, and group formation is based on discussion and persuasion; and you can’t persuade someone if you don’t know what he or she believes).

But the most important cause of this “duty of expression” is, I think, the manichean nature of contemporary politics. Every issue is painted in black and white, good and evil, for or against. We force people to express themselves on issues so that we can see if they are with us or against us. And if someone expresses him or herself in a nuanced way we automatically assume that he or she takes a position opposite from our own. For example, if Muslims reject Islamic terrorism but at the same time point to the situation in Palestine, we assume that they really think terrorism is OK, or justifiable given certain circumstances. We can’t accept muddled or nuanced middle ground positions, or positions which change according to the circumstances. Gray isn’t an option.

Clarity, simplicity and certainty are important human objectives, but often they aren’t appropriate in thinking. Of course, sometimes manicheism is the only possible position: you either believe the holocaust is a fact of history or you don’t; there’s no middle ground, and those who don’t believe in it are either stupid or evil. But when it comes to political or moral opinions (rather than facts), those who really think about them often find themselves occupying a gray, complex and uncertain position.

I suspect that the difficulty to let go of manicheism and to accept uncertainty and nuance has something to do with the nature of democratic politics. It’s hard to vote for nuance, and easy to vote for or against a clear and simple proposition. And simple propositions get more attention, sell better and make it easier to mobilize large constituencies (see the cartoon below). But then again, when we look at political reality, manicheism is much more common in autocratic societies. The public debate on issues which is made possible by democratic societies forces nuance to appear.

The difficulty to let go of manicheism also has something to do with the fear of the other extreme: the paralysis that follows from endless nuancing and thinking. Politics is a realm where decisions have to be taken, contrary to philosophy where thinking is unending in principle.

However, it doesn’t follow from this that decisiveness has to be manicheism. Decisions can be based on nuanced thinking. The risk of paralysis is averted by the realization that our decisions, often taken under the pressure of urgency, are necessary yet provisional, based on the best thinking available at the time, and open to revision when time has improved our thinking.

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.

What is Democracy? (43): A System Characterized by Free Speech

The principle of the freedom of speech springs from the necessities of the program of self-government. It is not a Law of Nature or of Reason in the abstract. It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage. A. Meiklejohn (source)

Democracy is a power struggle. The participants in this struggle have to be able to express themselves, to present themselves to the electorate, to create a distinct profile for themselves, and to make the electorate familiar with their political program. That’s one reason why democracy needs freedom of expression. The participants in the power struggle also have to be able to organize and associate in a group that is free from government control, because this allows them to gather strength and have a more influential voice. So they need the freedom of association and the separation of state and society. And for the same reasons they have to be able to meet and demonstrate. So they also need the freedom of assembly. If they want to organize, associate and assemble, it’s because they want to convince new people to join them. And they can’t do that without free speech.

Without the guaranteed right of all citizens to meet collectively, to have access to information, to seek to persuade others, as well as to vote, democracy is meaningless. Democratic rights, in other words, are those individual rights which are necessary to secure popular control over the process of collective decision-making on an ongoing basis. David Beetham (source)

The U.S. Supreme Court (SCOTUS) as well has long recognized that the facilitation of self-government is one of the main goals of free speech and the First Amendment. Take, for example, Mills v Alabama:

Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. (source)

Or Brown v Hartlage:

First Amendment [is] the guardian of our democracy. That Amendment embodies our trust in the free exchange of ideas as the means by which the people are to choose between good ideas and bad, and between candidates for political office. (source)

Or Roth v United States:

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. (source)

There’s also Justice Louis D. Brandeis famous (concurring) opinion in Whitney v California, in which he described the democratic function of freedom of speech. According to Brandeis, every citizen has the right to

endeavor to make his own opinion concerning laws existing or contemplated, prevail. (source)

Brandeis believed, correctly I think, that free speech is necessary for democracy in three ways:

  • to inform the people about the workings and policies of the government (a free press being an important part of freedom of speech)
  • to inform the government of the the will of the people (an election – or “vote” – being the voice of the people)
  • to allow the people to deliberate, to discuss government policy and the merits of representatives.

Why Do We Need Human Rights? (9): Free Speech, Democracy, Socrates and the Search for Truth

Just a few additional remarks on the way in which the equal right to free speech, and democratic deliberation based on this right, improve the quality of “knowledge” and of political decisions. (Continuing where this and this post left off).

Of course, “knowledge” and “truth” not in any absolute or objective sense, but in the sense of the best kind of thinking a given society at a given time can achieve.

Before arguing how Socrates is relevant in this discussion, allow me to cite a few 20th century thinkers. Justice Louis Brandeis, in his concurring opinion in Whitney v California, stated that the

freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth. (source)

Alexander Meiklejohn:

Just so far as, at any point, the citizens who are to decide an issue are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to that issue, just so far the result must be ill-considered, ill-balanced planning for the general good. It is that mutilation of the thinking process of the community against which the First Amendment to the Constitution is directed. (source)

Justice Oliver Wendell Holmes, in Abrams v. United States (dissenting):

The best test of truth is the power of the thought to get itself accepted in the competition of the market.

The freedom to speak, the equal freedom to speak, and massive use by large numbers of people of this freedom, result in the appearance and confrontation of a large number of points of view and of perspectives on an issue. It means that a proposal or opinion or policy is subjected to intense scrutiny and criticism. If it survives this, it is bound to be of better quality. Unfounded opinions or opinions that are open to sound criticism are not likely to survive this process. Free speech in general, and free speech as it is implemented in democratic decision procedures, initiate such a process. That is why opinions in a free society and political decisions in a democracy have what we could call an epistemological advantage. They are of better quality. At least as long as we contemplate the ideals. Real free societies and real democracies may fall significantly short of this ideal.

Again, epistemological advantage doesn’t equal “truth” and “knowledge”; just the best thinking we can get. Unfortunately, I’m not being very original here. This is obvious when we return to the Ancient Greeks. The Athenians especially believed that democratic deliberation (which for them was the same as free speech) was essential for wise decisions because it sheds the light of diverse opinions and criticism on policy options. Pericles, in his Funeral Oration, as recorded by Thucydides, said:

Instead of looking on discussion as a stumbling-block in the way of action, we think it an indispensable preliminary to any wise action at all.

None of this is limited to highly participatory systems of direct democracy such as the Athenian democracy, or to politics. The process can occur in modern, representative democracies and in any setting, political or non-political, guaranteeing free and equal speech. The scientific community for example heavily relies on peer participation. It’s fair to say that freedom of speech is essential for any collective search for of or advancement towards truth. In fact, the word “collective” is superfluous here, because the process is by definition collective. No one thinks more or less correctly in isolation.

We normally assume that an ideally conducted discussion among many persons is more likely to arrive at the correct conclusion (by a vote if necessary) than the deliberations of any one of them by himself. Why should this be so? In everyday life the exchange of opinion with others checks our partiality and widens our perspective; we are made to see things from their standpoint and the limits of our vision are brought home to us … Discussion is a way of combining information and enlarging the range of arguments. At least in the course of time, the effects of common deliberation seem bound to improve matters. John Rawls

I know, I know: “what about Socrates!”. Well, the Socratic method is a type of discussion with adversaries which is intended to expose the adversaries’ pretensions, prejudices, dogmas and conventional beliefs. In other words, it targets opinions which are accepted as such, without having first passed through a process of examination and criticism. Socrates is a one man democratic agora, launching different criticisms and counter-arguments at an opinion, and shining the light of many perspectives.

Terrorism and Human Rights (18): Right-Wing Terrorism in the U.S., and the Shared Responsibility of Conservative Media

Only days after the attack on Dr. Tiller, the U.S. is shocked by yet another terrorist attack by a right-wing extremist, this time at the Holocaust Museum in Washington. Some have questioned the role of the media in all this. It’s true that parts of the U.S. media, especially on the conservative side, are not characterized by nuanced analysis and balanced reporting. There’s a lot of hate speech, stereotyping and shouting on cable news, on the radio and on the internet. So it’s fair to say that there may be a risk that the media are fanning and nurturing extremism and hate in society, and that they may be responsible for pushing sick people over the edge. (See also here).

I personally regret the lack of quality in the media, and I do believe that journalists and pundits should be more careful in what they say and how they say it. But I also believe that critics of the media should be careful when deciding responsibilities and causal relationships. Society is complex, and people are driven by many factors. Still, most people are ultimately responsible for their own acts (I don’t know enough about the two cases at hand to conclude that the mental condition of the perpetrators at the time of the crime was such that they could be held criminally responsible).

We run the risk that these terrorist events will lead to calls for a more restrictive interpretation of the freedom of speech of the media. Let’s hope that this risk incites the media to question their behavior and to abandon the language of hate.

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.