Why Do We Need Human Rights? (38): Different Justifications for Different Types of Free Speech

There are different types of speech, and therefore also different types of free speech. The point I want to make here is that different types of free speech require different justifications. It’s a common error to reject some kinds of free speech because they seem unacceptable from the point of view of justificatory theories that are useful only for other types of free speech.

What does that mean, different types of speech? We can have different goals when we speak: we can try to persuade, to signal our allegiance or identity, to harm, to ostracize, to insult, to express emotions, to promise or to enter into a contract, to state facts, to name something, to order someone, etc.

Each purpose of speech requires a separate justification of free speech, and some purposes may be very hard to justify at all, in which case a limit on freedom of speech may be necessary. However, much talk about limits springs from a logical error. It’s important not to try to use a justification for one type of free speech in order to examine the justification of another type. This may result in the unwarranted conclusion that some type of free speech is not justifiable and that it can therefore be limited, whereas in reality we just use the wrong justification.

Take one type of speech: persuasion. Free persuasion is usually justified on the basis of the marketplace of ideas. In a nutshell: people should be allowed to try to persuade each other freely, because this process of free persuasion will improve the quality of opinions.

Now take another type of speech, namely emotive speech. Examples of emotive speech are “fuck you” (expressing rejection or disgust), “fuck” (expressing disappointment), “shit”, “motherfucker” etc. Such expletives, and emotive speech in general, are often viewed as completely lacking in merit and therefore unworthy of protection. US First Amendment jurisprudence is a case in point. The Supreme Court labels a lot of emotive speech as no-value or low-value speech and has no problem with restrictions of it. (See also here). Speech lacks value, according to the Supreme Court, if it’s no essential part of the exposition of ideas and doesn’t bring us closer to the truth. Any slight benefit it may have is outweighed by the social interest in order and morality.

However, this means focussing on persuasion and the truth seeking purpose of speech, and using the justification of this type of speech in order to reject another type of speech. If, on the other hand, you believe that speech also has an emotional purpose, you would regard expletives as more valuable and more worthy of free speech protection.

The distinction between low or no-value speech on the one hand and high value speech on the other hand, whatever its merits (and those are not obvious), points us towards a further remark regarding the distinction between types of speech and between types of justifications. Those distinctions aren’t clear-cut: even people who express themselves merely because of signaling needs can be justified to do so because of the value of the marketplace of ideas. Although they don’t want to persuade, the fact that they merely express an opinion without arguing for it is valuable in the marketplace of ideas because it can convince others of the lack of real value of their opinions. Likewise, an order may indicate that persuasion has failed, and this in turn may indicate the relative weakness of an opinion.

More posts in this series are here.

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Limiting Free Speech (50): Harassment of Funeral Mourners

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Limiting Free Speech (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.

Crime and Human Rights (9): A Human Right to Possess and Carry Firearms?

Well, possessing and carrying firearms certainly isn’t a human right since it’s not mentioned in any global human rights treaty or declaration. Neither is it a right that’s demanded by the majority of people in the world. It seems to be an exclusive preoccupation of many in the U.S., where the Second Amendment to the Constitution declares:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. (source)

Guns and violence

Whether or not this is an example for other countries to follow, or whether or not this is a good thing for the U.S., are questions worth pondering. The fact that Americans kill one another at a much higher rate than do residents of comparable western European nations, and that this gap persists despite a roughly 40 percent drop in the US homicide rate in the last 15 years or so, is a first indication the answer to those questions is likely to be negative. Gun rights in the U.S. has led to widespread gun possession:

The United States has the largest number of guns in private hands of any country in the world with 60 million people owning a combined arsenal of over 200 million firearms. (source)

And it so happens that this widespread possession is correlated with high crime rates. However, this correlation between gun ownership and violence doesn’t have to be causal. Both numbers can have a third factor causing them both, such as high levels of endemic aggression. Reducing the number of guns would then perhaps fail to reduce the levels of violence. However, I don’t believe in such a third factor and there is proof of a causal link between guns and aggression:

Do guns make men more aggressive? Looks like the answer is “Yes, unless they handle guns a lot.” … We tested whether interacting with a gun increased testosterone levels and later aggressive behavior. Thirty male college students provided a saliva sample (for testosterone assay), interacted with either a gun or a children’s toy for 15 min, and then provided another saliva sample. Next, subjects added as much hot sauce as they wanted to a cup of water they believed another subject would have to drink. Males who interacted with the gun showed significantly greater increases in testosterone and added more hot sauce to the water than did those who interacted with the children’s toy. Moreover, increases in testosterone partially mediated the effects of interacting with the gun on this aggressive behavior. (source)

Deterrence

On the other side of the argument, you have people claiming that more guns mean less crime. Gun possession is supposed to have a deterrent effect on criminals. At first sight, that sounds convincing: when potential criminals know that there’s a high probability that their potential victims carry or possess guns, they may think twice before deciding to rob someone. Still, how does this square with the correlation mentioned above? Why is there so much crime in the U.S. if gun ownership deters crime? The only explanation is that crime rates would be even higher in the U.S. without gun rights:

Because … while we hear about the murders and accidents, we don’t often hear about the crimes stopped because would-be victims showed a gun and scared criminals away. Those thwarted crimes and lives saved usually aren’t reported to police (sometimes for fear the gun will be confiscated), and when they are reported, the media tend to ignore them. No bang, no news. It is quite clear that we have not seen any massive increase in crime, even though we have shifted from a situation where about 10 states allowed nearly every law-abiding adult to get a concealed carry license to a situation where 40 states do. So the fears of gun control proponents certainly have not materialized. (source)

The argument is that while guns may be dangerous and lead to murders and violence, gun ownership for self-defense purposes often prevents violent crime and thereby saves lives. Gun rights activists claim that on balance the gain is larger than the loss. Moreover, they argue that other rights can also cost lives (free speech for nazis can lead to authoritarian rule, rights ensuring that people have a fair trial can result in criminals escaping jail sentence etc.).

Supposing all this is true, the question is then what on earth is wrong with the American psyche that even a supposedly massive deterrent effect still produces crime rates that are higher than in other comparable countries that don’t have the same deterrent? I don’t think there’s anything particularly wrong with Americans, and hence this deterrent effect is probably largely imaginary (as are other deterrent effects).

I should also mention that the “more guns, less crime” narrative that claims that the number of lives saved by guns is larger than the number lost, often relies heavily on some seriously flawed research by the notorious John R. Lott (read more about this guy’s methods here and here). If you see or hear anyone defending gun rights and using Lott’s work, you can safely move on.

Self-defense

However, even if it’s not clear that a consequentialist or utilitarian defense of gun rights can work (that in other words gun rights produce overall higher utility levels that gun prohibition or gun control), it’s still possible to make a rights-based case for gun rights. You can argue that people have a right to the means of self-defense, whatever the overall balance of violence. I personally think that this is the strongest of the arguments in favor of gun rights. If you can connect gun rights to existing human rights such as the right to life and the right to physical security, you can make a strong case.

For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? The right to bear arms gives you a mechanism to protect your bodily autonomy from attack. (source)

This link to abortion is an interesting one. Both abortion and gun rights can be defended on the basis of bodily autonomy, self-determination and self-defense. But then again, it’s rarely the same people who defend abortion rights and gun rights. On the contrary, gun rights activists are often decidedly against abortion. There’s an interesting story here about a campaign against abortion in black families.

“BLACK CHILDREN ARE AN ENDANGERED SPECIES,” the billboards proclaim. Posted in dozens of locations in Atlanta’s black neighborhoods, they direct readers to a Web site that denounces abortion as a racist conspiracy. Through them, the pro-life movement is sending a message that it cares about the lives of black people. But does it?

The Web site plays every race card in the deck. It says “abortion is the tool [racists] use to stealthily target blacks for extermination.” It calls on readers to “expose the insidiousness of the pro-abortion agenda and its real target: the black community.” It touts the support of “Dr. King,” a niece of Martin Luther King Jr. “I know for sure that the black community is being targeted by abortionists for the purpose of ethnic cleansing,” she asserts.

What’s the basis for these charges? The campaign points to eugenic ideas and influences in the early birth-control movement. But its chief evidence is abortion rates. “Abortions in the black community occur at 3x the rate of those among the white population and 2x that of all other races combined,” the site points out. “The truth screams loud and clear—we are killing our very future.”

The numbers are provocative. But there’s something odd about the billboards. The child who appears beside the text is fully born. Abortion doesn’t kill such children. What kills them, all too often, is shooting. If you wanted to save living, breathing, fully born children from a tool of extermination that is literally targeting blacks, the first problem you would focus on is guns. They are killing the present, not just the future. But the sponsors of the “endangered species” ads don’t support gun control. They oppose it. … Maybe that’s why blacks, unlike whites, strongly favor gun control. (source)

This example of how gun control can help the black minority in the U.S. is often countered with another example of how it has been used to work against blacks. Gun control does indeed have a history as a tool for subjugation of blacks.

After the Civil War, the defeated Southern states aimed to preserve slavery in fact if not in law. The states enacted Black Codes which barred the black freedmen from exercising basic civil rights, including the right to bear arms. Mississippi’s provision was typical: No freedman “shall keep or carry fire-arms of any kind, or any ammunition.” (source)

Gun control left the freedman defenseless against the KKK and unable to form militias to resist white terrorism. However, I fail to see how a very specific and largely closed period in American history can justify rights more than 100 years later, especially if there are contemporary examples pointing the other way.

A final self-defense argument against gun control is the possible revolution against a dictatorial government. The “people” may need firearms to rise up when government becomes tyrannical. Now, I know that there’s currently a lot of right-wing anti-Obama hysteria and paranoia doing the rounds about a supposed dictatorial plot. However, I think it’s very unlikely that any U.S. government can ever achieve tyranny, even if it very much wanted to. And suppose it did, how can you be so foolish to believe that handguns would allow the people to defeat the superior firepower of the U.S. government?

Regardless of your position on the Second Amendment, whether the Second Amendment’s right to keep and bear arms is “fundamental” to “our scheme of ordered liberty” is severely questionable.  Certainly other countries are able to have something that we would call “ordered liberty” without ironclad protection of firearms ownership rights.  And while historically there may have been instances where the ability of the citizenry to safeguard or expand “ordered liberty” via ownership of firearms, the restrictions that are allowed on the Second Amendment under Heller ensure that the government’s advantage in firepower will be insurmountable in such hypothetical circumstances nowadays. (source)

Gun control

What I personally would favor is not prohibition but extensive gun control, including bans on gun possession by felons or minors etc., bans on the open or concealed carry of guns in certain places such as schools etc. I can understand why some people think they need a gun for self-defense. The question is, however, if restrictions on gun rights will still be possible after the recent Supreme Court case, McDonald v. City of Chicago.

The argument that gun control laws don’t work and don’t bring down the number of crimes isn’t necessarily correct. You would have to measure against the counterfactual, which is very difficult: without gun control laws, crime would perhaps have gone up, so a failure to reduce crime isn’t necessarily a failure of gun control laws. Maybe they simply reduced the growth in crime rates. Also, failure to bring down crime rates may be not the fault of gun control laws but of the way they are designed or enforced. And anyway, there is evidence that gun control laws do bring down crime rates.

Capital Punishment (28): Extreme “Tinkering With the Machinery of Death” in the U.S.

The title of this blog post refers to a famous quote by former US Supreme Court Justice Harry A. Blackmun. It’s my belief that the U.S. Supreme Court, in its desire to both uphold capital punishment and simultaneously limit its scope, has maneuvered itself into an incoherent position. It has “tinkered with the machinery of death” to such an extent that the application of capital punishment in the U.S. should be viewed as a complete mess, even by those of us who don’t have an instinctive repulsion for capital punishment, who don’t make a philosophical or moral argument against it, and who don’t agree that there are so-called “systemic problems” in the application of capital punishment in the U.S. (as opposed to the moral problems of capital punishment per se), such as

  • the racist component
  • the discussions about non-cruel methods
  • the failure of legal representation
  • the extensive appeals procedures
  • the sadistic death row phenomenon
  • or the lack of deterrence.

(For irregular readers, I’m personally convinced that there are moral reasons not to apply the death penalty, and that these are sufficient reasons. I view both the systemic problems cited above and the inconsistent reasoning of the Supreme Court discussed below as supplementary reasons for those who are difficult to convince with moral reasons alone).

Here’s an overview of some of the contradictory judgments of the Supreme Court. There’s a tendency, among many supporters of the death penalty in the U.S., to extend its reach beyond homicide. (I believe that’s a natural tendency, especially for those counting on a deterrent effect. If the main objective of capital punishment is the deterrence of crime, then why stop at homicide? There are many other heinous crimes that could possible be reduced with an effective deterrent and if it can be argued – but I doubt it – that capital punishment is such an effective deterrent, then why shy away of it?).

In Coker v. Georgia, the Court had to decide whether the crime of rape of an adult woman warrants the penalty of death. The Court argued that it doesn’t, since rape does not mean taking a life. Again, in Enmund v. Florida (does a homicide accomplice who does not kill or attempt to kill deserve the death penalty?), the Court judged that capital punishment should not be a possible punishment for crimes that do not involve the death of another human being. (This is part of the doctrine of proportionality, see below).

And yet, in Kennedy v. Louisiana, the Court stated that crimes against the state, such as treason and espionage, but also terrorism and drug kingpins etc. may be deserving of death even if no loss of life was involved. I find this distinction highly arbitrary. From the point of view of an opponent of capital punishment such as me, it’s obviously good that the Court imposes some restrictions on the sentence, but doing so in this arbitrary way just serves to undermine the legitimacy of these restrictions and opens the door to future reversals.

Another restriction imposed by the Court is based on the degree of culpability of offenders and their capacity to evaluate and control their actions. In Thompson v. Oklahoma for instance, the Court examined the constitutionality of executing child offenders (under the age of 16). The Court decided that children are generally less culpable for their crimes because, compared to adults, they are

  • less able to judge the consequences of their actions
  • more emotional and less able to control their actions
  • less prone to “cold calculation” and therefore there is less reason to assume a deterrent effect.

Moreover, the Court assumed that offenses by the young represent a failure of society, school and the family:

youth crime as such is not exclusively the offender’s fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth. (source)

Again, nice to see the Court limiting the scope of the death penalty, but why assume that adult criminals don’t also represent a failure of society? If young people offend because of failure of the educational system for instance, is it safe to assume that these causes magically disappear after a certain age? (Of course, I don’t assume that “society” causes all crime, but crime does, in certain cases, have causes beyond the decisions of the criminals). And are there really no adults who are relatively less able to judge the consequences of their actions and act in a non-emotional and calculated way?

Yes, says the Court, but at the same time it limits this category of adults in a somewhat arbitrary way to the mentally retarded (for example Atkins v. Virginia). I believe the reduced culpability of the mentally retarded is obviously a good thing, but why stop there? Aren’t there any “non-retards” who also can claim diminished culpability? And, anyway, where to put the border between the retarded and the rest? There’s always going to be a gray zone, and hence arbitrariness.

Furthermore, recent judgments of the Court tend towards undoing the restriction on capital punishment based on diminished culpability. Scalia for instance (dissenting in Atkins v. Virginia) claimed that culpability and deservedness depend not only on the mental capacity of the criminal but also on the depravity of the crime. One can read this as a justification of capital punishment even for children or the mentally retarded if their crime is depraved enough.

In Kennedy v. Louisiana, the Court also expressed contradictory views on deterrence. Deterrence has always been an important justification for the Court, but in Kennedy v. Louisiana the Court decided that in the case of child rapists, capital punishment would encourage rather than deter the crime. It claimed, correctly I think, that the death penalty for this crime could encourage non-reporting. A third party, for example the wife of the rapist, could decide not to report the offender for fear of capital punishment, which then leads to the continuation of the crime, and hence the failure of deterrence.

Again, a welcome restriction from the point of view of an abolitionist, but also a highly arbitrary one. The same non-reporting effect of the death penalty can occur in other types of crime. Moreover, the consideration of counter-deterrence effects in this case is very unusual for a Court that consistently ignores evidence against the deterrent effect.

Finally, the argument of proportionality cited above and used against capital punishment for crimes such as rape (see also Gregg v. Georgia) is a welcome limit, but it also is an argument that’s used very selectively and arbitrarily by the Court. In non-capital cases, the Court often refuses to consider the lack of proportionality as a reason to undo decisions of other courts. In Rummel v. Estelle for instance, the Court refused to see anything wrong with a sentence of life imprisonment for obtaining $120.75 by false pretences!

All these inconsistencies and arbitrary limits and restrictions in the Supreme Court’s handling of capital punishment have turned this sentence into a shambles. Many of us think it’s much worse than that, but a shambles may be a sufficient reason for others to review the practice.

Religion and Human Rights (24): Why and How Do We Separate State and Church? And What Are the Consequences for Religious Liberty?

A bit more about the proper role of religion in a modern democracy (see here for the original post I’m building on). I know it’s making things more simple than they actually are, but one can see the history of modern democracy as a continuing and progressive effort of the law and government policy to escape from religion. The religious wars of 16th and 17th centuries convinced the states of Europe that they had no choice but to put themselves above the factions. Only by loosening their ties with a favored religion and guaranteeing a free space for every religion and for equal liberty of worship, were they able to channel religious competition away from violence. As religion had become a dangerous and dividing power, it became clear that the state had to separate itself from the church, not only to keep the peace, but also to maintain itself.

The U.S. constitution later followed, inspired by the characteristic religious diversity of the U.S., itself the result of imperfect religious liberty in Europe. In the U.S., the separation of church and state was instituted in the First Amendment, more specifically the part of the Amendment called the “establishment clause” (“Congress shall make no law respecting an establishment of religion”). Religious liberty and the equal respect for all religions was also instituted in the First Amendment (more specifically in the part called the “free exercise clause“: “Congress shall make no law … prohibiting the free exercise [of religion]”). Obviously, separation and religious liberty interact, but I’ll focus first on separation, and then later I’ll discuss how separation influences liberty.

So the effort of western democratic states to separate themselves from religion is not based on a negative value judgment about religion as such, but simply on the need for peaceful coexistence, tolerance and mutual respect between religions, and this tolerance and respect should promote the rights to equal liberty of all religions. Separation of church and state is therefore a means to protect religious liberty. By removing its ties to a favored religion, a state is no longer tempted to impose that religion and persecute other religions. It will also stop favoring the official religion and imposing a competitive disadvantage on non-official religions.

And this need for peaceful coexistence, tolerance and respect will only become more important in an age in which global mobility and globalization encourage coexistence of and hence competition between different religions. If a multicultural state today aligns itself with one particular religion, even in a very loose way, it will squander its authority as a neutral arbiter between religions and as a peacemaker, and it will undo equal religious liberty because its association with one religion will necessarily favor this religion and give it more power and hence more freedom.

The question whether there should be separation is settled in all modern democracies, precisely because of the salience of these reasons. Sure, other reasons for and justifications of separation are cited as well, and can be just as convincing to some: laws based on one religion should be rejected because they show disrespect to people adhering to other religions, or these people will fail to see the legitimacy of these laws; in the words of Rawls, laws should be grounded in reasons that are accessible to “common human reason”, i.e. secular reason; religiously inspired laws often imply violations of fundamental rights etc.

Whatever the reasons given, most democratic citizens accept that there has to be some kind of separation. The only dispute that remains is the degree or type of separation. Should religion be completely banned from public and political discussions? Should religious reasons for legislation be completely and always unacceptable? Or can they be accommodated when other, secular reasons are also available (i.e. the Lemon test) and when the law in question doesn’t harm fundamental rights? Those and other questions remain essentially controversial. Below I offer an admittedly crude typology of forms of separation that democracies can and do apply. But before that I want to make another point that is important to keep in mind when discussing separation of church and state.

And that point is the remarkable similarity between legal and religious modes of thought. It is this similarity that has led to the original and historical entanglement between religion and politics and that has therefore initiated the attempts to dislodge politics from religion. Both religion and politics are about the realization of morality. They both encourage people to engage in some forms of action and to disengage from other forms of action, and the distinction between forms of action is a moral one in both law and religion. Both law and religion differentiate between right and wrong actions, even if they may not always use the same adjectives (the law doesn’t talk about sinful behavior for example). Both use ritual and judgment. Of course, some religions – notably the Abrahamic religions – tend more towards the legal mode of thought than others. Confucianism, by contrast, sees the law negatively, as a impediment to the internalization of norms of conduct, and therefore an obstruction to virtue.

Let’s now return to the modes of separation. In an effort that’s clearly bordering on the simplistic, I count 6 types of relationship between politics/law and religion, in descending order of separateness, from complete separation to complete lack of separation:

1. Secularism or strict separation

According to this view, there should be an impregnable wall between church and state (Jefferson’s “wall of separation”), and the government should be essentially secular. The archetype is of course French laïcité (often translated as “secularism”), the product of centuries of nefarious involvement by Catholics in French public life. It entails the rejection of religious involvement in government affairs (as well as absence of government involvement in religious affairs, by the way). That includes rejection of religion in public education, for example. Secularism implies a restrictive understanding of “private life” where religion is supposed to belong. In “public” (which includes for example public schools) religious people should act as citizens (“citoyens”) and also appear as such (hence the controversy over Muslim dress in France, see here and here). Secularism produces a reasonable level of religious freedom in society and private life but often relatively harsh restrictions on religious activity in government, law, politics and public life.

Another problem is that it seems impossible to avoid that religious values and religious moral sensibilities influence the law. And even if it were possible, it would be undesirable, in my view. Religion can be a valuable source in public discourse (and I say this as an agnostic). And neither should one underestimate the power of religious argument to appeal across religious divides, or even across the divide between religion and non-belief.

2. Neutrality

Neutrality, compared to secularism, also separates church and state but imposes a less severe form of exclusion of religion from government, legislation and policy. It forbids governments from favoring or advancing a particular religion over other religions, but it also forbids favoring secularism over religion. Notwithstanding the words of Jefferson quoted above, neutrality rather than secularism is typical of the current interpretation of the U.S. constitution. Religion is allowed a far greater role in U.S. public life than in France. Elected politicians in the U.S. regularly invoke religion, and religious reasons are often used as justifications for legislation (as long as the Lemon test is respected, see above).

Yet, the U.S. government cannot provide tax money in support of religion, for example, or impose school prayer in public schools, not even if students can excuse themselves (of course, prayer while at school is not forbidden as such; on the contrary, it is protected by the free exercise clause).

3. Accommodation

Accommodation, compared to neutrality, is still a system in which church and state are separated, but to an even lesser degree. Accommodation permits a government to acknowledge that religion is an important force in society, and only prohibits laws that either coerce religious activity or fail to treat different religions equally. A state can favor a religion without coercing it. Examples of government interference with religion that accommodation would allow are: the use of public (i.e. government) school facilities by religious groups, government aid (financial or otherwise) to religious schools, or school prayer if students aren’t forced to attend or if different religions get equal prayer time.

Some say the U.S. is slowly moving from neutrality to accommodation (partly because of the influence of Justice Scalia of the U.S. Supreme Court).

4. Establishment

An even lesser form of separation occurs when one church is the established church (e.g. the Church of England) but other religions are still tolerated and have a measure of freedom. Establishment can mean either a “state church” or a “state religion”. A “state church” is created by the state as in the cases of the Anglican Church or the Church of Sweden. An example of “state religion” is Catholicism in Argentina. In the case of the former, the state has absolute control over the state church, but in the case of the latter, in this example, the Vatican has control over the church.

The problem here is that non-established churches, although they may be tolerated and even enjoy a large measure of freedom, aren’t treated equally, perhaps not by the law but simply because of their lack of equal recruitment power. So they are disadvantaged and hence there’s no equal religious freedom. Even if non-official religions are not actively persecuted or discriminated against, they are worse off when one religion is established because they have less means to influence the public as the official state religion. They are not as free as the official religion.

5. Entanglement

This takes establishment a step further. The state’s favorite religion is no longer a “primus inter pares”. Other, non-official, non-established or non-favorite religions suffer not just a competitive disadvantage because of their non-official character, but also relatively severe restrictions of their religious liberty (of their recruitment efforts, their freedom of worship etc.).

6. Fusion/theocracy

Law and religion are the same, and separation is effectively and completely undone. The law is an instrument in the realization of religious law and morality. Rather than merely competitive disadvantage or restrictions on worship and recruiting, religions suffer outright prohibition and persecution. Of course, the same can occur when a state has adopted atheism as its official ideology, and actively persecutes religion as such, rather than some religions in particular. However, this has become the exception since the demise of communism, and only occurs in countries such as China, Cuba and North Korea.

Some claim that certain modern Islamic republics or countries that have implemented Shari’a law are examples of theocracy (see here). But is a pure theocracy possible? Not even the most totalitarian interpretations of a religion will unearth rules for everything. Hence, some laws are bound to be rooted in something else than religion. We see that theocracy, like the other extreme (secularism), finds it difficult to remain pure.

Separation and liberty

Now, if you agree that a separation between state and church is necessary for the protection of religious liberty, as I argued at the beginning of this post, then it may be useful to compare these 6 different types of separation (going from complete separation to complete absence of separation) with regard to the respective consequences for religious liberty of each type.

Secularism performs slightly less well with regard to religious liberty than neutrality or accommodation, but better than establishment, and obviously also better than entanglement and theocracy (the latter receiving a zero score). Difficult to say whether neutrality offers more religious liberty than accommodation or vice versa.

Some data

[T]wo-in-three people in the world today live in countries with high levels of restrictions on religion. The report gauges the level of restrictions due both to government actions and to acts of violence and intimidation by private individuals, organizations and social groups. … 64 nations, about one-third of the countries in the world, have high or very high restrictions on religion. The brunt of these restrictions are often felt most directly by religious minorities. … Among all world geographic regions, the Middle East and North Africa have the highest government and social restrictions on religion, while the Americas are the least restrictive region on both measures. … In 75 countries, or four-in-ten countries in the world, national or local governments limit efforts by religious groups or individuals to persuade others to join their faith. In 178 countries (90%), religious groups must register with the government for various purposes, and in 117 (59%) countries the registration requirements resulted in major problems for, or outright discrimination against, certain faiths. (source)

More on religious liberty here.

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.

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.

Limiting Free Speech (16): Fighting Words

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

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

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

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

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

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

Limiting Free Speech (12): Obscenity

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

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

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

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

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

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

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

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

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

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

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

Limiting Free Speech (5): Pornography

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

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

Other jurisdictions have also protected pornography.

Violence IN pornography

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

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

Violence BECAUSE OF pornography

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

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

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

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

The image of women in pornography

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

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

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

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

Different kinds of restrictions

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

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