It is very annoying that the English language does not distinguish between free speech the ethical value and free speech the legal right. I feel like many conversations would be far clearer and more sensible if different words were used for these two things.
For one thing, while most people who value free speech as a matter of ethics support the legal right to free speech, the converse is not true. I can believe deep in my heart of hearts that some speech ought to be censored– that the people who speak it ought to be punished in various ways up to and including being punched in their stupid fucking faces– without thinking that it would be a good idea to give the US government the power to censor that speech.
The reason is that I cannot give the US government the narrowly tailored Power To Censor Only Speech Ozy Doesn’t Like. I can only give them the power to censor speech that is generally unpopular. The one thing everything currently censored by the US government has in common is that it is wildly unpopular, whether for good reasons (saying false and malicious things about people, shouting at an angry torch-wielding mob mob that God requires you to burn witches) or bad ones (drawn child porn).
Of course, much speech I do think should happen is very unpopular (such as pro-vegan activism) and much speech I think shouldn’t happen is very popular (such as saying cruel things about trans people).
So legal free speech is in the interest of all groups who want to say unpopular things. You get weird fucking allies in free speech defense: for example, a recent ACLU case’s defendants included PETA (message: “go vegan”), an abortion provider (message: “abortion pills available cheaply, quickly and privately”), the ACLU itself (message: the text of the First Amendment), and Milo Yiannopoulous (message: “everyone hates me! buy my book”). These groups have nothing in common with each other except that lots of people would like them to shut up and go away. But a legal precedent that protects any one of them would protect all four.
I am always puzzled that centrists are generally more fervent defenders of the legal right to freedom of speech than leftists are. It seems to me there ought to be a whole bunch of centrists going “wait, you mean we can silence the alt-right, the Nazis, the communists, Black Lives Matter, and PETA all at once?”
Some people argue that, in reality, it is possible to put up a fence on the slippery slope. The typical example is Germany, which bans Holocaust denial and displaying Nazi symbols. Of course, Germany has recently passed a law fining social networks who don’t delete “blatantly illegal” content within 24 hours, which may include censorship of statements like “we shouldn’t shield Muslims from criticism.” So I’m not sure that they’re doing a great job on that “only censor some of the unpopular opinions” thing.
However, this argument does not apply to any forms of censorship which are not being done by the government. When you advocate for or against legal free speech, you are only affecting the behavior of one entity, which has defined powers and acts based on precedent. But the conscientiousness of my behavior does not have any consistent effect on the behavior of my political opponents. While it may occasionally happen that people justify their anti-ethical-value-of-free-speech behavior with “but my opponents did it first!”, if their opponents were very conscientious about the ethical value of free speech those people would probably just decide that the ethical value of free speech was an Enemy Thing and people who support it are evil. So it goes.
That doesn’t mean that one should not support the ethical value of free speech. I myself support it. You just have to make arguments for it based on the value of people being able to speak freely, not porting over arguments from the legal right to free speech where they don’t belong. And even if you don’t value free speech ethically– which many people don’t!– if you have ideas that are outside the Overton window it is within your best interest to protect the legal right to free speech. For that reason, you should not use the government as an instrument of censorship, and should instead use boycotts, protests, discrimination, harassment, etc. as tools.
Machine Interface said:
This is just rule-of-honor-based censorship vs rule-of-law-based censorship. If that distinction still has some meaning, then I’ll always prefer rule of law over rule of honor, and so I’d rather have the censored speech be explicitely, clearly and legally defined, than being at the mercy of the next moral panic, which could stike, anyone, at any time, for any real or fantasized reason.
I just realised I’ve consciously written “moral panic” instead of the initially planned “witch hunt”. This is what rule of honor based censorship does to people.
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wildtypehuman said:
I feel like you have an incorrect impression of the inherent explicitness and clarity of legal censorship (cf. Jacobellis v. Ohio, “I’ll know it when I see it.”)
Private clubs, universities, and/or companies can write down clear speech codes. Governments can ban “obscenity.”
Any argument about clarity versus flexibility of speech restrictions is mostly orthagonal to an argument about private versus governmental speech restrictions.
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notpeerreviewed said:
I don’t think it’s mostly orthogonal, if you include case law. “Incitement” may seem like an ambiguous word on its own, but if you look at two borderline cases that flank either side of the line – NAACP v. Claiborne Hardware and Planned Parenthood v. American Coalition of Life Activists – you can derive a fairly precise rule for what legally counts as incitement and what doesn’t. In fact, various legal groups probably have write-ups that make it so you don’t even have to look at the original cases. Nothing like that exists for private clubs or universities.
Re: Jacobellis v. Ohio, it’s infamous specifically for being comically vague compared to most legal rulings. Successful obscenity prosecutions are rare, which is a sign that most courts shy away from relying on such vague standards.
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wildtypehuman said:
There’s a huge difference between ” this is the way that U.S. federal case law evolved” and “this is an inherent property of governments.
Jacobellian standards of decency, etc. in legal speech codes were legally unremarkable at the time. The reason for the shift was that US judges started placing a high value on clarity and predictability. I agree that’s a desirable feature in a legal system, but there’s no fundamental law of the universe that says things have to go that direction. Also no law of physics against private spaces publishing their speech codes–they usually don’t, but perhaps some of them should!
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notpeerreviewed said:
I see your point – the University of Chicago’s speech codes probably come closer to the “rule of law” than Great Britain’s do, and certainly closer than Russia’s. You’re speaking observationally, though, and I think there’s a normative side to this: When we hear about arbitrary censorship in Great Britain or Russia, we think it’s a violation of human rights; when we hear about arbitrary censorship in at Wesleyan, we think they’re it’s sad that they’re letting down their educational mission.
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ozymandias said:
My blog’s comment deletion/banning policy is “don’t annoy Ozy,” which I think is pretty much the most unexplicit and unclear form of censorship possible. (I’m mostly mentioning this in case you aren’t aware and would prefer to comment on some blog with a more rule-based or nonexistent policy about what comments it censors.)
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Machine Interface said:
What could stop you from claiming that someone has annoyed you and ban them even if that wasn’t the case that they have actually annoyed you?
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ozymandias said:
Why would I ban someone who isn’t annoying me? I don’t get anything out of banning people other than a comment section that makes me want to write posts, and if a person is contributing to that goal (even if they are only contributing by making the number of comments go up) then I have no reason to ban them.
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Kasey Weird said:
“This is what rule of honor based censorship does to people”
It… causes people to choose their words more carefully and precisely? Sounds great to me!
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Lambert said:
Sounds doubleplusgood.
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tcheasdfjkl said:
I think this is probably a good distinction but I’m so used to thinking of freedom of speech as a legal or quasi-legal* thing that I am not sure that I’m correctly understanding what exactly is encompassed by freedom of speech as an ethical value in your understanding. I think this post would benefit from a clearer definition of these two different concepts.
*quasi-legal meaning implemented as a policy by some non-government body like a university or content hosting platform
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ADifferentAnonymous said:
See http://slatestarcodex.com/2013/12/29/the-spirit-of-the-first-amendment/
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ADifferentAnonymous said:
What would you say to a proposed constitutional amendment to censor a right-wing cause?
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Lawrence D'Anna said:
Sometimes people say “freedom of expression” instead of “freedom of speech” in order to make it clear that they’re talking ethics, not law.
There’s a similar lack of clarity around the word “slander” and all it’s available synonyms. There’s no reasonably pithy way to say “you told lies about someone in order to denigrate their reputation”, without some popehat style legalist popping up to say “hahaha LIBELSLANDER, don’t you know anything about the first amendment you IDIOT”.
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blacktrance said:
In addition to laws and values, there are also norms, which have no single formal enforcer but are affected by precedent and the behaviors of people subject to them. For example, in addition to laws against murder, we also have norms against it – if someone on your political side commits murder, you’re supposed to condemn them and let them be brought to justice instead of sheltering them. And if you’re conscientious about not murdering your political opponents, it would be strange for the opposing side to decide it was an enemy thing. If one side decided it was okay to kill members of the other (without involving government), that would erode anti-murder norms and you’d expect the other side to retaliate in kind.
There’s an inter-group iterated prisoner’s dilemma between groups that don’t care about non-murder/free speech/etc as such, and when enough people forget that, the nice cooperative equilibrium breaks down.
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Aapje said:
A society where the government will not punish you for saying X, but where the government allows people to hunt you down and beat you up if you say X; is effectively no different from a society where the government will hunt you down and beat you up if you say X.
A legal right to freedom of speech is only meaningful if vigilantes don’t get to violate the government monopoly on punishing people with the consent of the government. If they do, the government has effectively deputized the vigilantes and merely pretends to grant people the legal right to freedom of speech.
A complication here is that no government actually has the monopoly on punishing people, we merely give them the monopoly on punishment above a certain threshold. Furthermore, the government is not that effective at punishing people who just get a bit above that threshold. So this leaves citizens with extensive power to engage in low grade vigilantism. An example is people being bullied/fired/excluded/etc for being trans, autistic, pro-choice, pro-life, etc.
This vigilantism can make the legal rights moot, as many people consider the harm of this vigilantism too much for them to be willing to assert even those legal rights that they really, really matter to them. So having societal norms in support of their rights is often very important to the well-being of people.
As such, I think it is logical that many people see legal and societal norms as part of the same spectrum, where both legal punishment and vigilante punishment of women is seen as a violation of women’s rights & both legal punishment and vigilante punishment of speech is seen as a violation of free speech rights (to give two examples).
People seem to nearly always get this when it concerns the rights of themselves or their ingroup, but not always when it concerns the outgroup. Many people aren’t content with trying to convince others, they want to coerce others into the desired behavior and think that certain rights should not be respected in the pursuit of that goal.
I would prefer that these people would at least be honest about that. So that they don’t say that they support free speech, when they are willing to make it impossible for their outgroup to exercise this right.
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c0rw1n said:
isn’t this all just an instance of https://thingofthings.wordpress.com/2015/05/15/the-enemy-control-ray/
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ozymandias said:
…no?
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