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. Hi, Gene,
    Wow, you actually quoted someone’s words and dissected them. I’m so proud of you for that.

    This “When an adult set (sic) out to mentally and emotional destroy a child it’s a whole different animal.” I can’t disagree with that one statement, though I can with all before, our predation and child abuse laws are based on that statement.

    “Social media may be ubiquitous, but it isn’t mandatory. Just like this blog or anything else on the Web, participation is voluntary.” I agree with you but we are just showing age bias. Social media is so very important to today’s teenagers that your argument of “isn’t mandatory” lacks understanding. Party invitations are sent by social media, not by envelope.

    “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.” Even here you misunderstand the tool. Comparing it to television, so 1950’s or 1960’s, shows age. Going to the parent using it as nanny has no pertinence to how teenagers, or 20 year-olds, or even 30 year-olds, use this media today, or it’s importance to them. It is the media of instant communication for them, something we didn’t have and can’t fully understand on their terms. In fact, games are the nanny issue, not social media, not the computer itself.

    I’m so old-school I hate the phone. I much prefer person-to-person with all it’s cues and interplay that lead to willingness to agreement on at least some level, leaving “agree to disagree” on others without hard feelings. This social media robs that, but supplies an interaction we didn’t have. I may deplore it, but I’m forced to understand it’s meaning.

    Over a good Scotch, I prefer Islay, you and I might even come to some understanding and agreement. Here, very doubtful.

    As for technology, a pencil or a pen is a technological tool. So is a typewriter. I have a library of roughly 2500 books on a wide variety of subjects, but this “Computers do run without an Internet connection and they do have an off switch. As a parent, that’s the responsible thing to do.”, ignores that my children do all their research on line (they have no sense of the full pleasure of a book). You may be writing on 6 to 10 year olds, but all mine are teenagers. Running a computer without internet makes it a calculator and a typewriter.

  2. I dismissed you because so far that’s what you’ve demonstrated your “arguments” merit. Your agreement is not required. If you need the definition of PC dumbed down, that’s also not my problem. I prefer accurate definitions. PC is a simplistic solution for a complex problem.

    “BTW, just because I call for respecting people in one area doesn’t mean I’m PC.”

    Really. Because calling for other people to act to your standards is exactly what PC is. That would be whether it is institutional or societal. PC is telling others what they can and cannot say which is simply censorship whether you like it or not. By the way, labels are useful when they are accurate. If you’re such an absolutist on free speech, that contradicts your earlier futile effort to illustrate why the term Eskimo is considered offensive to Eskimos. Since you’re not one, that you have a problem with it is and was irrelevant.

    “Censorship is a government function, we all censor in private life but shouldn’t allow government censorship whatsoever.
    You give me that imprecise impression that you spill it over.”

    Your failure to understand the impropriety of censorship in both the institutional and societal forms is your failing. Self-censorship? Is left up to each “self”. Not what you think a person should self-censor but by definition what they think they should self-censor. If you’re a free speech absolutist as you claim, that should be abundantly clear, but as in your earlier “arguments” you’ve demonstrated you haven’t really thought this through very well because it interferes with your proclivity to tell others how they should speak and by extension how they should think.

    The Thought Police aren’t welcome in a free society whether they come from the left or the right. It’s the ultimate attempt at violating the sanctity of others self to try to dictate what is or isn’t proper for them to think or say for that matter. I suspect your claim to absolutism on free speech is simply lip service.

    You sure use a lot of words not to say very much.

    The rest of your drivel is simply “holier than thou” drivel.

    P.S. Name dropping doesn’t impress me in the slightest. I don’t care who speaks for you. Appeals to authority are a logical fallacy used in that manner. If Ken wishes to rebut personally what I’ve said, he’s free to do so, but that he “speaks for you” is entirely irrelevant.

    Carry on.

  3. “It’s realistic sex education.” I have no problem with that as long as it’s put in the terms of K through oh 4 (assuming 10 to 11 and prepubescent), because their view and meaning to sexuality is not ours as adults. It’s significantly different, much simpler, and usually only curiousity about genitalia.

    The problem is when adult views are pressed on children, and their actions are viewed and judged in adult terms. Certainly irrational by adults.

    You brought up the law of unintended consequences, we call it in my family “the road to hell paved with good intentions” for metaphorical purposes because I’m married to a Christian. That law gives you 6 to 8 year-olds charged with sexual harassment, by adults, when they have no idea yet what sexual is and have no idea what they were doing was sexual because it wasn’t by their terms.

  4. Hi, Gene,

    “And who exactly gets to decide what is and what is not “acceptable”? In terms of Free Speech, all of us in our homes and our private lives, but not the Government, politically or socially.

    Pinochet was Chile, and he was just the other side of the coin that was Allende. It was the Junta that ruled Argentina, a lousy response to the problems of Peron.

    (as an aside, I have a much earlier post to you that is awaiting moderation still. I may have hit something that put it on the “OMG” need to moderate.”

  5. Hi, Gene,

    Your first argument is dismissal: “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.” Effective only to the person dismissing, since it addresses nothing other than that persons feelings.

    My point was that yours wasn’t basic enough, too verbose not succinct. And it isn’t that I don’t like your position on PC, funny you’d go to feelings, only that in some areas what you call PC isn’t except that your intransigence by your ego won’t let you budge.

    ” Unfortunately for you and the rest of the pro-PC faction, “protecting your feelings” is inherently subjective and irrational as an excuse for censorship.”
    This is why I directed you to Hook, because you’ve labeled me over one small argument, respecting people by the name they say is theirs, and conflated it to include all aspects of PC. Not rational whatsoever (rational being “agreeable to reason; reasonable; sensible”). My point earlier that rational people, especially those that constantly claim rationality, can be irrational. I think you twisted that into me claiming “irrationality” at all times. One of your reframings.

    Hook’s term “epithet of abuse” had to do with labeling so as to dismiss the person and all his arguments in all spheres where the label may apply. After all, if you’re a racist any argument of yours that in anyway can be ascribed to race is without merit because you’re a racist. Once you’ve labeled someone you’re certainly dismissive. Labeling is irrational when done from so little.

    BTW, just because I call for respecting people in one area doesn’t mean I’m PC. Far from it, because I don’t care about your feelings or anyone else’s. I do believe in respect for others, which can be objective, but that isn’t PC though you obviously claim otherwise.

    I tend to absolutism on Free Speech, speech should be countered by speech, but recognize the tar baby of societal constraints. I write nigger not “N-word”, when Chris Rock drops it so will I. The fact that Twain is so seldom read in schools because he used the parlance of the times is deplorable. America’s greatest satirist, outspoken abolutionist, and atheist, dismissed over a few words.

    BTW, Ken at Popehat speaks for me.

    It isn’t what you think it’s how you think. Which leads me to your use of censorship, a what and how. Censorship is a government function, we all censor in private life but shouldn’t allow government censorship whatsoever.
    You give me that imprecise impression that you spill it over. Noble perhaps but imprecise and dangerously so because it muddles an important concept.

    If you want to go fallacy Nazi, please quote me and dissect. Otherwise, you’re just making claims. I do understand that works well for you.

  6. When people learn to accept another in just the way they are they are doing what the master has ordained.

  7. LK,

    The coffee is finally kicking in today, so let me point out the biggest flaw with the idea of prohibiting language about gays in k-8 and it isn’t PC training.

    It’s realistic sex education.

    And exactly whose agenda does that play to? The very same people who want to demonize homosexuals in the first place. The law of unintended consequences strikes again with a double whammy.

    Censorship is a bag of snakes.

    Any marginal benefit is simply not worth the ancillary costs and history shows this.

  8. LK,

    I suggest clearing your cache and Temp folders.

    ****************

    Blouise,

    Thanks.

  9. “My aunt has enough stents in her to build a subway tunnel.” (Gene)

    The picture in my mind is not something your aunt would appreciate but I love the wordsmithory.

    pete

    Follow lotta’s advice and if no one will listen to you, come on here and whine

    The procedure is simple and given the other health issues you’ve mentioned, I’m certain your doctors will be taking special care with you. Once the stent is in place and you are home I’m sure you will notice an improvement.

  10. Pete, Practice sounding pitiful before you call her and grunt in stifled pain. 😆 See you soon buddy.

  11. Gene, I lost my train of thought, My postings were going someplace else but I’m just mercifully going to catch up on some vids and chill. This site froze up and I had to exit the interwebs and come back. I wasn’t having any trouble going to other sites though. It’s an omen I guess. Darn, I hadn’t even begun to close in on rude blawgers. What a loss. Sleep tight. 😆

  12. maybe i can get my daughter to come over and empty the litterbox for me. don’t want her cooking for me though, that child could burn water.

  13. Pete, It’s one of the safest procedures performed. All surgery is scary as heck and if you can hold it together long enough to get on the table you’ve got it made as far as the fear goes. Once they hit you with the drugs for what little time you have to be conscious you just won’t give a shite. Tell them you hurt and are sensitive to pain afterward and they may give you some really, really good painkillers. I did that, I do have a resistance to drugs, they don’t metabolize efficiently, and I got some monster painkillers and a week off work. It turned into more of a procedure than first anticipated but no problem with it.

    I took my Pain killers and felt so good I went out and bought a whole bunch of 2×12’sx8′ and built an entire wall of bookshelves and moved books into it. Well, then I ran out of the pain-killers and I thought I was going to die! LOL,

    I went back to the doctor and he said I was healing slowly. Gave me some more painkillers, a note for a couple days extra off work and I spent like the next four days painless and happy but laying on the couch listening to music. LOL. Talk them out of a couple of days supply anyway and rack up for a day or so and listen to music, read, watch some cheezy vids. Play the sympathy card. make people fetch you stuff. Milk it. DO NOT go home and clean out the garage or build big heavy stuff. Adversity can be opportunity. 🙂

    Hey, unless it’s an emergency you can postpone and get a second opinion. If you’re really unsure it’s always better to approach a medical procedure satisfied that it’s needed. That knowledge goes a long way psychologically.

    1. To have a country with police, and jails saying their is freedom of speech with peoiple in jails that speak is saying an oxymoronic statement. This state wants to squelch, and bad mouth good care so the surgeons, and drug companies flourish. The rich pay for commercials so they can beguilingly sell their sorcery. They teach people to chided, and scoffed at care that they know is good but don’t want people to know anything about it to even be able to decipher between the good kind, and the kind that is not good being the equivalent of popping knuckles. The good kind of U,C,S, chiropractic practitioners can be found on a list on http://www.upcspine.com all ages birth on up. Upper cervical heath centers is another, put in your zip code. Must be U.C,S, only not a neck the twisting full spine popping kind. Free speech in the USA a whole lot of nothing. Tickle the ears of whoever saying a whole lot of nothing and you will be safe from people that have a devil in their soul. Don’t saying hard words or words that don’t tickle the ears will cause them slink away to call the authorities to arrest you or ban you from wherever.

  15. Uh oh cont. I’ve been having problems with this site all day and I didn’t know thi s post would be this long. My screen is flipping to weird machine code and back again, thought I better break it up.

    The Internet is one kind of mechanism whereby speech can be a weapon. It is not yet well understood by probably the majority of adults. I recall the case I linked to well. There was retribution. The names of the perpetrators weren’t published but known to some and they became internet celebrities with world wide exposure. it wrecked the families lives. They owned a business that died. It was ugly.

    There is real-world harassing behavior which the culture is more comfortable with. Throw into the mix any distinguishing feature that may set one person apart from some others such as race, sex, religion, handicapping condition. Just a relentless stream of verbal abuse and peer group shunning mechanisms. can and does drive the victims of that behavior to extreme acts.

    Now it’s all speech but what mechanism does the society have to moderate it? Missouri and Tennessee both had bills they were working just 1-2 years ago that would prohibit teachers in k-8 grades from having any discussion with students wherein the word ‘gay’ or the underlying concept would be used. Any discussion along the lines of ‘You shouldn’t call each other “gay” or “fag”‘ etc would have been out of the question. The laws never made it to a vote BTW- you guessed it, fear of First Amendment challenges. Like state abortion laws though, those legal hairs are going to be split so finely that a smart teacher will abandon any attempt at instilling a sensitivity for inclusive language or an abandonment of preoperative name calling.

    The better half needs a hand, an extra one….

  16. You’ll be fine, pete. My dad has one. My aunt has enough stents in her to build a subway tunnel. It’s a fairly routine procedure these days, but I certainly do understand being nervous about it anyway. Surgery of any sort is always reasonable cause for concern. But based on their experience, if you’ve got a good doctor and you follow their instructions about whatever blood thinners (and everything else) they put you on for recovery? You’ll be fine. You’ve got good karma too. That never hurts.

  17. However, all that being said, I do think there is room for improvement on laws dealing with Internet predation of all sorts, but that involves distinct crimes that have analogs in the meatspace – particularly stalking, intimidation, defamation and harassment. Like those crimes, the standards around them should be objective thresholds, not something vaguely subjective like someone’s feelings got hurt.

Comments are closed.