Constitutional Law, Free Speech, Society

The Consequences of Free Speech

by Gene Howington, Guest Blogger

On a recent thread, the topic of politically correct speech as it relates to free speech came up. As with many of the more interesting threads on this blog, the topic came about from meandering rather than the subject proper of the thread. The subject was brought back to fore in my mind this morning when I read this: How Free Speech Died on Campus by  Sohrab Ahmari, published on The Wall Street Journal (online.wsj.com). It seems there are a lot of misconceptions about what constitutes free speech, the limitations thereon and the consequences thereof.

The core of the American free speech right and tradition is codified in the 1st Amendment of the U.S. Constitution.

Congress shall make no law [. . . ] abridging the freedom of speech, or of the press[.]”

The U.N. Universal Declaration of Human Rights, Art. 19, states:

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

This has implications that apply to public discourse.  Let us consider these implications.

What is free speech?  I think the Universal Declaration gets to the heart of the idea with the words “freedom of opinion and expression”. You are free to think what you like and express your thoughts. The marketplace of ideas – a consequence of freedom of speech – relies upon this. Everyone says what they like and may the best idea/argument win. However, that being said, there are some limitations on free speech that are universally accepted in domestic and international jurisprudence.  Namely the exceptions of defamation (lying about someone for gain and/or profit) and incitement language (encouraging others to violence or panic). Many countries also recognize sedition (calling for the overthrow of government) as unacceptable as well. Consider the difference in these prohibitions and the different ways of addressing the 1st Amendment: the absolutist approach, the categorical approach and the balancing of interests approach.

All three approaches allow for restrictions on free speech. The absolutist approach takes the stance that literally no law prohibiting speech is permissible . . . except when the words are so intimately tied to a specific action like inciting panic or contracting for an illegal purpose as to be inseparable from the otherwise prohibited act itself. The categorical approach attempts to define what speech is or is not protected by assigning categories such as obscenity, fighting words, commercial speech and political speech. The balancing of interests approach in every case courts should weigh the individual’s interest in free expression against a valid governmental interest in restricting the speech in question with a thumb on the scale of justice in favor of free speech. Most modern jurists adopt either the categorical or the balancing approach as the absolutist approach is impractical. Personally, I’m somewhere in between those two analytical schools: circumstances should be considered, but some speech should be categorically protected like political free speech.

Defamation and incitement have sound public policy behind them. In the case of defamation, it arises from the long respected notion in torts that someone should not be able to lie about another to their detriment and/or for the defamer’s benefit. It’s a matter of equity. It has nothing to do with your feelings being hurt. There is a separate tort recognized in some jurisdictions called “Intentional Infliction of Emotional Distress”. It is a very specific, very hard to prove tort where someone says things to or about someone with specific foreknowledge and the intent to cause the hearer or subject to suffer extreme emotional distress. It is a wilful tort and you must prove the speaker had mens rea (guilty mind) in causing the extreme emotional distress.

In the case of incitement, everyone knows the old trope about “yelling fire in a crowded theater”. Inciting panic or violence often ends up with innocent bystanders getting harmed either physically or by having their property destroyed and that is a matter of public safety as well as equity. Sedition, on the other hand, is a “political crime”. In the United States, a particularly odd political crime too considering the express language of the Declaration of Independence.

However, with these above noted exceptions, free speech means anything goes basically.  You are allowed to think and express your thoughts. This carries some broader implications.

As all people are free to express their thoughts and opinions, you are certainly going to hear things you disagree with or disapprove of or maybe even find insulting or offensive. That is simply a cost of the freedom. If you value free speech then you accept that you will be disagreed with, insulted and offended at some time. If you don’t accept this fact, then you value freedom of speech as long as you approve of what others say first and that, by definition, is not free.  If you cannot accept this and try to oppress others simply for having a different, insulting or offensive opinion, then you miss the point of free speech. The antidote for different ideas, just as it is for offense or insult, is more free speech. Make a rebuttal. Offer rejoinder for insult and offense. But everyone gets their say whether you personally like it or not. Respond. Don’t. It’s your choice. However, if you value freedom of speech, you’ll never try to censor. Even if the motive behind your thought is to crush an idea that is deeply offensive and indefensible. Motives don’t matter. Once you cross the line into censorship, you’ve abandoned criticism and counterargument for oppression. You will never beat a bad idea with oppression just like you’ll never stop a good idea with oppression. As the titular character V said in V for Vendetta, “Beneath this mask there is more than flesh. There is an idea, Mr. Creedy – and ideas are bulletproof.” Ideas and arguments are not idea and argument proof though. That’s the whole notion behind the marketplace of ideas. This illustrates why the antidote to bad ideas and bad arguments is precisely more free speech – better ideas, better arguments.

Your feelings are not generally protected by law with the one exception in tort. They are subjective. They are your own reactions and you own them. They may or may not be rational.

This is part and parcel of what is wrong with the idea of politically correct speech. An idea that has crept on to what was once the bastion of free speech – American college campuses. Rather than interpret or summarize How Free Speech Died on Campus by  Sohrab Ahmari, I am simply going to direct your attention to it and suggest that you read it in full for a scathing example of “politically correct” speech regulations on college campuses and how it has gone wrong. It’s a short article, but dense and well worth the read, full of examples like;

At Western Michigan University, it is considered harassment to hold a ‘condescending sex-based attitude.’ That just about sums up the line ‘I think of all Harvard men as sissies” (from F. Scott Fitzgerald’s 1920 novel ‘This Side of Paradise’), a quote that was banned at Yale when students put it on a T-shirt.”

and astute observations like;

‘The people who believe that colleges and universities are places where we want less freedom of speech have won, Mr. Lukianoff says. ‘If anything, there should be even greater freedom of speech on college campuses. But now things have been turned around to give campus communities the expectation that if someone’s feelings are hurt by something that is said, the university will protect that person. As soon as you allow something as vague as Big Brother protecting your feelings, anything and everything can be punished.‘” [emphasis added]

Suffice it to say, in an academic environment, there is nothing more detrimental to learning than shutting down the marketplace of ideas because some pinheaded “risk management” administrator thinks someone’s feelings should get hurt by words they themselves are free to challenge. If this trend continues, our colleges and universities will become a global laughing stock.

Free speech must be protected at all costs.  It is how we speak truth to power, to others and to ourselves when we are interested in learning truths.  It can make you uncomfortable.  It will challenge you. It will piss you off. It will hurt your feelings.  Freedom isn’t free.  It comes with costs.  These are some of the costs that you pay for freedom of speech.  If you don’t like getting your feelings hurt? If you don’t like being challenged? Develop thicker skin, learn to counter what you don’t like, or be ready to have yet another important freedom eroded, but this time not in the name of (false) security, but the onus of political correctness and catering to the subjective over the objective. James Madison thought freedom of speech (and the press) was critical and the 1st Amendment the most important item in the Bill of Rights.  Maybe you should think about that too.

What do you think?

Think, mind you.  Not feel.  That being said, have at it.

Source(s): WSJ Online, U.S. Constitution, U.N. Universal Declaration of Human Rights

~submitted by Gene Howington, Guest Blogger

237 thoughts on “The Consequences of Free Speech”

  1. “The technology is capable of allowing anonymous harassment, you can’t confront your harasser.”

    Really. So technological communication is a one way street? Fascinating. Utter bullshit, but fascinating.

    “Social media is ubiquitous and can severely limit the zones of security and comfort/support for victims that they once had, just changing schools or extra-curricular activities will not do the trick; safe havens are more limited.”

    Social media may be ubiquitous, but it isn’t mandatory. Just like this blog or anything else on the Web, participation is voluntary. Facebook accounts can be deactivated or deleted as can other social networking platforms.

    “If its one on one or a few against one it may be manageable but when it’s dozens against one due to the ability of the internet to aggregate a large number of people with some ease then you have a mob action. Adults can freely interact with children. Schoolyard vendettas in 3space, cruel as they can be, may maintain some level of equivalence. When an adult set out to mentally and emotional destroy a child it’s a whole different animal.”

    Oh noes! Think about the childrens! And where are the “responsible” parents factored into this equation? Or does the technological tool – the computer – that some use as a nanny much like some have used/use television as a nanny, does it “have a responsibility to protect children”? No. It’s a tool. It’s not a toy even though you can play games on it. Tools can be dangerous when misused. I wouldn’t give an 11 year old a chainsaw for that very reason. I wouldn’t let them use social media either. If you want to protect your child from online predation from children and adults alike? Computers do run without an Internet connection and they do have an off switch. As a parent, that’s the responsible thing to do.

    “The technology has changed the ground rules.”

    The technology hasn’t repealed the 1st Amendment or changed that one’s emotional and intellectual responses are entirely the province and property of the self.

  2. pete,

    don’t know if you are still on but I’m thinking about you and the stent and sending positive thoughts

  3. lotta,

    Yes, that’s where part of my thought process is going.

    Man, that’s a really awkward sentence … time to get to bed.

  4. Megan Taylor Meier (November 6, 1992 – October 17, 2006 O’fallon Missouri.

    Driven to suicide just shy of 14 yrs old by a neighbor girl and her mother, the mother was the major culprit. Eventually federal charges were brought dealing wit Internet Fraud in that a fake social media account had to be set up. Convicted on one of 8 charges (a misdemeanor) but overturned on appeal.

    http://en.wikipedia.org/wiki/United_States_v._Lori_Drew

    This problem is multi-faceted:

    The technology is capable of allowing anonymous harassment, you can’t confront your harasser. Social media is ubiquitous and can severely limit the zones of security and comfort/support for victims that they once had, just changing schools or extra-curricular activities will not do the trick; safe havens are more limited. If its one on one or a few against one it may be manageable but when it’s dozens against one due to the ability of the internet to aggregate a large number of people with some ease then you have a mob action.Adults can freely interact with children. Schoolyard vendettas in 3space, cruel as they can be, may maintain some level of equivalence. When an adult set out to mentally and emotional destroy a child it’s a whole different animal.

    Remember “my dad can beat up your dad?” If kids fight kids in the schoolyard you have some equivalence and when dads fight in the back yard some equivalence is maintained but the police may arrest them both. If a dad comes to school and punches his sons 10 year old adversary he probably do time. It’s a rough analogy for the sake of illustration.

    The technology has changed the ground rules.

    Uh oh

  7. Artie,

    “This country is built on fundamentals Christianity which is real satanism.”

    Actually this country was founded as a specifically secular government under the terms of the 1st Amendment, but that’s not the part of the 1st Amendment this thread is about.

  9. Ariel,

    Really, I don’t care if you have a problem with basic definitions.

    Nor do I care if you don’t like my position on the issue of PC language.

    Censorship is a dangerously slippery slope. If you don’t like that others would rather not get on it when you have a marked tendency to embrace it? Well that would be your problem.

    Also, your excluded middle argument is moot. There is no excluded middle here. All three analytical approaches allow for narrow limited objectively rational restrictions on free speech as previously mentioned. Unfortunately for you and the rest of the pro-PC faction, “protecting your feelings” is inherently subjective and irrational as an excuse for censorship.

  10. “The course materials suggest that those with an obsessive need to live vicariously through another are lacking a basic social skill. These can include any number of lack. They feel an unfulfilled aspect of the life they have and project aspects of others as their own.”

    I have so much more sympathy for voyeurs. I thought they were different from the rest of us.

  11. artiewhitefox,

    Christians have perverted their religion over and over again. I can’t comment beyond that experientially Christianity’s not bad, lot of good ideas. Some real bad executions though.

  12. OK, “without” in my last sentence should be “notwithstanding”. Extremists will ignore this as well all else. And they won’t actually quote me, they will write my words, interpreted by them, so my words suit them for their argument.

  13. The course materials suggest that those with an obsessive need to live vicariously through another are lacking a basic social skill. These can include any number of lack. They feel an unfulfilled aspect of the life they have and project aspects of others as their own.

  14. Healing relationships with families that are damaged takes time. I am in my first year of psychology. It is a specialized course called abnormal psychology. Apparently not all families grew up in a close nurturing family that I have. I feel you pain.

  15. Gene, really, you don’t have to take so much personal offense, you didn’t define it originally, thus your essay suffered. I like Miller and Cleland, their works suffering by right-wing authoritarian “social-correctness” under the same amorphous definition. Today, we deal with left-wing authoritarianism and still the amorphous definition. It works well for both.

    Now this : “I know this is a matter near and dear to your heart, PC Queen, but the generally accepted definition of PC will do.” This is total emotional response, and illustrates my early point of how rational people are irrational also (I realize you reframed my earlier into some silliness about me claiming people are always irrational). You just can’t let loose of Eskimo versus Inuit. can you? I respect people, however “imprecise” they may be on what they like to be called. Eh, When (I’m only imprecise by a consonant), if you had actually looked up Hook’s “epithets of abuse”, you wouldn’t go the fallacy of extremes.

    This is a catchall so broad as to be meaningless: “To wit: language, ideas, policies, and behavior seen as seeking to minimize social and institutional offense in occupational, gender, racial, cultural, sexual orientation, other religions, beliefs or ideologies, disability, and age-related contexts, and, as purported by the term, doing so to an excessive extent and used as a pejorative, or more concisely, that some people and institutions feel it is their job as the PC language police to tell others how they should speak as to avoid offense to others (a purely subjective standard) which is essentially censorship and antithetical to free speech which by its very nature guarantees that at some point you will be offended by something.” That’s not a definition, it’s an essay.

    This is more succinct: “conforming to a belief that language and practices which could offend political sensibilities (as in matters of sex or race) should be eliminated”. Much simpler, without all the self-serving verbiage, and clear indication that you use the phase idiosyncratically. I will give that you understand the subjectivity of your essay, if only to cherry-pick like the Nazis did Nietzsche. If I remember correctly, you claimed Nietzsche influenced the Nazis because they cherry-picked him. Thus you influenced me, as I cherry-pick now “purely subjective standard” as typifying your essay.. Dishonest, but why should that get in the way of a seemingly good argument?

    Really, reading Sidney Hook, an ex-Communist (the purges in 1934-35 offended him to his core morality), Dewey apologist or embracer, and self-described Social Democrat, as to his take on PC would help you to avoid extremist thinking. Extremist thinking, the either-or fallacy where anti or pro lead, has no understanding that there is a middle without the “argument to the undistributed middle” or the “argument to moderation”.

  17. SwM,

    Good times … busy times.

    I leave for my daughter’s new house on Tues. night and will return on Friday. She is only 4 minutes away but we have our own bedroom/bath/sitting room there and she insists that we use it. The 4 year old has grand plans to sleep with us every night so that we may plot and practice our course in preparation to sneak up on Santa and catch him on Christmas Eve. She has an array of art materials laid out in her play room so that we can prepare and test treasure maps that we’ll follow to the prize … Santa. I’m going to be exhausted.

  19. Blouise, Have not seen our son since July. He is the sweetest guy in the world, and I love his girlfriend. We see our daughter every 6 to 8 weeks.

  20. Blouise, My son comes tomorrow, and my daughter and her friend come on Wednesday.

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