There are five factors to consider where free speech is concerned:
- Speech itself
- Being heard
- Provocative speech
- IPR and SLAPP
You can't have an honest conversation about freedom of speech without taking these factors into consideration. Ignoring any or all of them invites a shouting match in which both sides vie to be the most authoritarian with regard to what is permissable. Okay, let's dig in.
What we define as speech includes words both spoken and recorded on a variety of media. It also includes art and actions such as flag-burning. Religion (and anti-religion) are also included. Whenever anyone expresses a view by any means, this is considered to be speech.
What about "fake news?" Yes indeed, that is speech; there's a debate on at the moment with regard to how to tackle it, but given that truth is currently in the eye of the beholder, I can't see the powers that be shutting Infowars or Breitbart down any time soon. This may be because they'd have to shut the Daily Mail down for the same reasons.
Legal and illegal speech
Whenever I write a post for On t'Internet it is speech. Whenever you share a cat picture on Twitter or Facebook that is speech. In theory, everybody has the right to freedom of speech and expression in Western countries until it causes a problem, i.e. you've recommended carrying out an illegal act. At that point, you've crossed the line and your speech is no longer protected. Fraudulent speech is illegal: if you're making speech to trick people into giving you money, you can go to prison for it. And over here in the UK racist speech can get you put in jail. I've been sailing close to the wind lately in my exploration of the trans issue because it's not as cut and dried as I'd thought it was but I don't think I'll get into trouble for the things I've written because I've not joined in the name-calling, I'm just questioning the blind acceptance and trendy luvvie bandwagon-jumping. I'm within tolerance, is what I'm saying, as a general rule, and it's the tolerance that needs to be discussed.
Natural rights is a problematic concept in and of itself. As I've demonstrated so far there is no true freedom of speech, it is limited everywhere to what the law allows — and what we can get away with. Only in the UK can you arrest a man for teaching his pug to do a Nazi salute to "Heil Hitler" while allowing newspapers to call judges "Enemies of the people" and to call for "Saboteurs" to be "crushed." Shouldn't laws about offending sensibilities apply to everyone, not just the public? In my opinion, free speech is desirable but it's not a natural right. Any rights we think we possess have ever-shifting boundaries and are held and maintained at a cost. It's naive to suggest otherwise.
So it is that we arrive at being heard, which is no more a "natural right" than speech is. If speech is a natural right, then so is being heard, according to the trolls who litter the comments sections of every newspaper that allows them. It's the same on Twitter; where blocking is apparently the act of the special snowflake. Look, people, if we had a natural right to be heard, it'd be compulsory to let the KKK, etc., march into synagogues to troll the Jews. But it's not, is it? You do, however, get the Westboro Baptist hate freaks picketing funerals despite the phrase "God hates fags" not appearing in the Bible. Cigarettes don't figure in it either. Ah, you all know what I mean! The point is they can picket the funeral but nobody is obliged to allow them into the church or to gather by the graveside to harass the grieving families.
Freedom from _________.
On the other hand some people claim a right to freedom from hearing things they don't want to hear. They're so generous at heart they are willing to put their time and energy into protecting others from hearing undesirable speech whether they like it or not. Thus it is that right wing darling Ann Coulter is receiving support from right-on libertarian Robby Soave on the grounds that censorship is bad. What I'm more interested in is the protests and the no-platforming at Berkeley University, an alleged hotbed of liberalism. This is not an isolated incident, it's happening all over the place, even here in Britain. The funny part was the banning of a man who wanted to ban Muslim groups. Who has a right to be heard, and do we have a right to hear those who are considered to be makers of problematic speech?
I'll open this section with a popular quote:
In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic." - Three Generations of a Hackneyed Apologia for Censorship Are Enough, by Ken White for Popehat
What people forget, argues Mr. White, is that the quote is taken from a man who was arguing in favour of suppressing the speech of dissenters protesting the draft in 1919. It's perfectly legal to shout "Fire" in a crowded theatre: context is everything. You might be an actor in a play. There might really be a fire. If you cause a panic, you might be prosecuted but per YoExpert unless you advocate committing a specific criminal act, anything goes.
Advocacy, even when it encourages law-breaking, helps the marketplace of ideas, ruled the Court. Had Brandenburg instructed followers to commit a specific crime, he’d have committed a number of offenses himself. But the First Amendment protects speech that merely advocates general, indefinite illegal action.
This is important: even the most provocative speech is permitted in America as long as you're only saying "Wendy Cockcroft should be dragged out and shot" rather than "Shoot Wendy Cockcroft on sight." Hold that thought. I've got some problematic issues to look at beyond no-platforming controversial speakers.
When coercive advocacy turns nasty
I've been observing a rise in incidents best described as speech to censor speech. I've been on the end of it. No-platforming campaigns are an example of this and coercive protest is a growing trend. You tend to find this kind of thing where provocative speech occurs or is likely to occur. Stop Funding Hate is one such example.
When flame wars explode into real life
A lawsuit on behalf of real estate agent Tanya Gersh is a prime example of this. Basically, she advised she would take part in a protest at a building owned by the mother of alt-right nutter Richard Spencer in order to persuade her to sell it and donate some of the proceeds to a local human rights group in order to prove her disavowal of Spencer's politics. Mrs. Spencer complained about it in a Medium post and the local neo-Nazi, Andrew Anglin, got involved. He doxxed Gersh and called on his "fam" to "hit 'em up," which they duly did, as horribly as possible. However, Anglin kept to the letter of the law in his advocacy:
The article encourages readers to "let these people know what you think!" It goes on to enjoin readers to call or send "a quick message," but not "make any threats of violence and certainly don't do anything violent."
That his readers went above and beyond this is arguably not Anglin's fault, it's theirs. That he knew this was likely to occur is another question altogether; I'd say he totally did. But is he responsible for other people's actions, however reprehensible they are? Okay, but what do we call it when he does the same thing over and over again, targeting this woman and calling for marches to the point where all her online speech is shut down? They totally censored her, but then she had tried to censor them. It's just that the neo-nazis had a bigger, better, more organised army than she did. This does not mean anything they did is okay; it's just that I also have a problem with her coercive tactics.
This is the go-to for all freedom of speech advocates: if you don't like the thing the mean man is saying, say something back to contradict and challenge him. Yeah, about that... in the Gersh V Anglin case you may have noticed that while Gersh has a garden hose, Anglin has a firehose and multiple appliances. Counter-speech advocates forget that it's a popularity contest and that if you're a small player anything you say gets lost in the noise. While it's true that your conduct is the biggest influence on your reputation, if some bully wants to make your life a misery by setting his dogs on you, you're stuffed if you lack the firepower (and the energy) to hit back as hard.
It's not really a solution
This is where the rubber hits the road:
Somewhere between grinning and bearing the abuse heaped upon you online and in real life because Many People Are Saying Things about you and getting items removed from the internet or making it illegal to Say Mean Things Online is a solution that's got to be better than hoping that the people responsible will experience some form of enlightenment and be kinder to others from now on. I'm not holding my breath but I do think that Something Must Be Done. I'm not sure what, but it's somewhere along the lines of setting up or supporting an effort to provide the counter-speech that targets who have little or no support require to even the odds that are stacked against them. - Perceptions And Perspectives: What Freedom Really Means, by Wendy Cockcroft for On t'Internet
Actually getting a discussion going about this is hard; what you end up with is people trebuchet-ing talking points at each other instead of having an honest discussion. Yes, censorship bad, but speech can be used to censor. What do we do about that without resorting to censorship? And why should anyone be obliged to take a barrage of abuse for daring to put their head above the parapet? For counter-speech to be a viable solution there has to be enough of it to get the job done. More often than not, that doesn't happen and the liberals and libertarians have no answer to that. Why not?
IPR and SLAPP
Intellectual property rights, or IPR, is increasingly being used to silence unwanted speech. One of the hotspots in this trend is the story of the Fearless Girl. Apparently it's an advert for the State Street Bank's woman-owned company fun but still, it's a great piece of art in and of itself. It's the placement that is problematic. I am absolutely loving the controversy over the juxtaposition of these items but the conversation that it's started is bubbling nicely away on a number of interesting levels, from IPR to the social angle.
Intellectual property rights
I've got problems accepting that intellectual property is even a thing even though it's embedded in the law of the land. The reason is this: you don't "Own it now on DVD." The minute you accept that an artist has rights over his or her creation after it has ostensibly been bought and paid for you're accepting that it's only really being leased; strings remain attached. It's the idea of having some control over an item after money has changed hands that is fueling an epidemic of rent and attention-seeking. The Wall Street Bull is but one example. The Trinity Root is another. In this case the artist is asserting his moral rights to the protection of his work:
VARA, or Visual Artist Rights Act 1990 allows for the protection of a work from any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honour or reputation. - filing attached to the article Artist Sues Church For Moving His 9/11 Memorial Sculpture by Mike Masnick for Techdirt
This is not a case of gagging someone as such, it's a case of someone being forced to accept the artist's expression against their will. The church wanted it moved, the artist wanted it to remain, the point being that the location itself is part and parcel of the work; it loses meaning when removed. While I can understand an artist wanting to protect the integrity of their creation I can't think of a good enough reason for him or her to continue to own the flippin' thing after it's been paid for. Don't be so damn precious. If you want to keep on owning it, tell the buyer it's a rental agreement. It's the same thing where the Wall Street Bull is concerned: the artist is annoyed that the energy and message of the charging bull is being subverted by the little girl in the ballet pumps with the attitude. He's actually suing over this despite the fact that he just dumped it in the street one day. He has no actual ownership rights over this thing, only "moral rights" which he's asserting because something something special snowflake. Okay, I'm biased: it's the subversion of the message that I'm enjoying about this. Juxtaposition as art: genius!
A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Such lawsuits have been made illegal in many jurisdictions on the grounds that they impede freedom of speech. - Wikipedia
Techdirt is on the receiving end of this: Shiva Ayyadurai is suing TD because the bloggers dared to state that he invented a program called email, not email itself. Gawker was destroyed because it posted content that embarrassed wealthy men, though it didn't do itself any favours in the way it went about it. Lawsuits to shout down — or shut down entities that annoy people are common and the threat of litigation is enough to force people to settle as the cost is so high. It can be very expensive to have an opinion.
Can speech ever really be free?
As I've pointed out there is no such thing as free speech; you can make speech within tolerance of social norms but once you stray outside of those, you're in trouble. You can have opinions as long as they don't attract the wrong kind of attention. And you need to be aware that if you attempt to suppress the opinions of one group of people on the grounds that they're obnoxious, your efforts might well backfire spectacularly.
Can speech ever really be free? That depends on how tolerant we're willing to be. In a politically polarised world where special snow-flake-ery and coercive correction are the norm, good luck with that.