Protecting Freedom Of Expression Not Lies Essay About Myself

The popular catchphrase of free speech defenders is a quote attributed to Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” Civil libertarians often defend and support the notion that the right to freely express offensive opinions is a bedrock human right that should not be abridged except under very narrow circumstances—typically for hate speech that directly incites violence against a person or group of persons. However, I support broader prosecution of hate speech—defined here as speech that disparages a person or class of persons based on an immutable characteristic (colour, race, origin, gender, sexual orientation, disability, and age), or their occupation, family or marital status, and religion or lack of religion. Proscribing hate speech more broadly would, I believe, foster a more inclusive, tolerant, and safer society.

Many western countries already do criminalize hate speech in a more encompassing way, although enforcement is often weak and spotty. A typical example is Canada, where it is illegal to “expose a person or persons to hatred or contempt…on the basis of a prohibited ground of discrimination” (Canadian Human Rights Act) and to “wilfully promote hatred against any identifiable group” (Criminal Code of Canada). The United States, however, stands almost alone in its veneration of free speech at almost any cost. The U.S. Supreme Court insists that the First Amendment protects hate speech unless it constitutes a “ true threat” or will incite imminent lawless action.

But societies should take action against hate speech without requiring that a few specific words by themselves must directly and immediately incite violence, or be likely to. That sets a very high bar and is difficult to prove. It also allows purveyors of hate to evade responsibility simply by not making explicit calls for violence. Further, our new digital world raises the stakes—the Internet has spawned a proliferation of hate speech along with useful information such as bomb-making instructions or the home addresses of abortion providers. This has enabled others to commit violence long after the words were first published.

Violent acts of hate are generally preceded by hate speech that is expressed publicly and repeatedly for years, including by public figures, journalists, leading activists, and even the state. Some examples include Anders Behring Breivik’s terrorist acts in Norway (June 2011), the assassination of Kansas abortion provider Dr. George Tiller (May 2009) and other abortion providers in the 1990’s, the Rwandan genocide against the Tutsis (1994), the ethnic cleansing of Bosnian Muslims in Bosnia-Herzegovina (1992-1995), and the Nazi Holocaust.

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Courts of law should be able to look at broader patterns of hate speech in the culture to determine whether a hateful atmosphere inspired or contributed to violence, or would likely lead to future violence. When hate speech is relatively widespread and acceptable (such as against Muslims or abortion providers), it’s not difficult to see the main precursor to violence—an escalation of negative behaviour or rhetoric against the person or group. Dr. George Tiller endured a previous assassination attempt and a decades-long campaign of persecution waged by the anti-abortion movement, which worsened over time, especially in the last year or two of the doctor’s life. Anders Behring Breivik had actively opposed multiculturalism for years and had immersed himself in Christian Right propaganda about the supposed threat of Muslim immigration to Europe, a view popularized only in recent years by a growing army of anti-Muslim bloggers and right-wing journalists.

As these examples illustrate, we can often pinpoint the main purveyors of hate speech that lead to violent crimes. In the Norway shootings, the killer Breivik relied heavily on writings from Peder Jensen (“Fjordman”), Pamela Geller, Robert Spencer, Mark Steyn, Jihad Watch, Islam Watch, Front Page Magazine, and others. Such individuals and groups should be charged with incitement to hatred and violence. Similar culpability for the assassination of Dr. George Tiller should rest on the shoulders of the extremist anti-abortion group Operation Rescue and Fox News commentator Bill O’Reilly.

In general, anyone spewing hate to an audience, especially on a repeated basis, could be held criminally responsible. This would include politicians, journalists, organizational leaders and speakers, celebrities, bloggers and hosts of online forums, and radical groups that target certain categories of people. We also need to hold people in accountable positions to a higher standard, such as government employees and contractors, ordained religious leaders, CEOs, and the like.

Criteria by which to assign culpability could include a speaker’s past record of prior hate speech against a particular person or group, how widely and frequently the views were disseminated, and the specific content and framing of their views. In cases where violence has already occurred, judges could determine how likely it was that the violent perpetrators had been exposed to someone’s specific hate speech, and hand down harsher sentences accordingly.

The Harms of Hate Speech

The apparent assumption of free speech defenders is that offensive speech is essentially harmless—that is, just words with no demonstrable link to consequences. But questioning whether speech can really incite someone to bad behaviour seems irresponsibly obtuse. Obviously, words have consequences and frequently inspire actions. A primary purpose of language is to communicate with others in order to influence them. If that weren’t so, there would be no multi-billion dollar advertising industry, no campaigns for political office, no motivational speakers or books, no citizen-led petitions, no public service announcements, and no church sermons, along with a myriad of other proven examples where speech leads others to act.

The majority of hate speech is targeted towards gays, women, ethnic groups, and religious minorities. It’s no coincidence that straight white men are generally the most ardent defenders of near-absolute free speech, because it’s very easy to defend hate speech when it doesn’t hurt you personally. But hate speech is destructive to the community at large because it is divisive and promotes intolerance and discrimination. It sets the stage for violence by those who take the speaker’s message to heart, because it creates an atmosphere of perceived acceptance and impunity for their actions. Left unchecked, it can lead to war and genocide, especially when the state engages in hate speech, such as in Nazi Germany.

Hate speech also has serious effects on its targets. Enduring hatred over many years or a lifetime will take a toll on most people. It can limit their opportunities, push them into poverty, isolate them socially, lead to depression or dysfunction, increase the risk of conflict with authority or police, and endanger their physical health or safety. In 1990, the Canadian Supreme Court stated that hate speech can cause “loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct.” The court agreed that “hate propaganda can operate to convince listeners…that members of certain racial or religious groups are inferior,” which can increase “acts of discrimination, including the denial of equal opportunity in the provision of goods, services and facilities, and even incidents of violence.”

In democratic societies that stand for equality and freedom—often with taxpayer-funded programs that promote those values by assisting vulnerable groups—it makes no sense to tolerate hate speech that actively works to oppose those values. Further, hate speech violates the spirit of human rights codes and laws, diminishing their purpose and effect. A society that allows hate speech is a society that tolerates prejudice at every level—politically, economically, and socially—and pays the consequences through increased discrimination and violence.

Answering Objections from Hate Speech Defenders

The most popular solution to the problem of hate speech is “more free speech.” This seems to make sense on the surface, and sometimes works well in practice. For example, there are many outspoken atheists who do a good job of publicly defending themselves and their fellow atheists from the prejudice and hatred too often expressed by religious people. But even if the targets of hatred can ably defend themselves from verbal violence, why should they have to? Why should a democratic society privilege the right to free speech over the well-being and privacy of those with less privilege?

Most vulnerable groups, however, do not have a level playing field on which to respond to hate speech against them. They are often outnumbered, out-resourced, and out-funded by the haters, simply because of their disadvantaged position in society. Sexism and racism are still thriving in the 21st century, which means women and most minority groups have a harder time getting published and heard and taken seriously in mainstream society. Which brings us full circle—perhaps one of the reasons sexism and racism are still so prevalent in modern society is because free speech is exercised largely by the privileged at the expense of the unprivileged.

A common objection to prosecuting hate speech is that it might endanger speech that counters hate speech. For example, a critique may repeat the offending words and discuss their import, or it may subvert the hate message in a subtle or creative way that could be misunderstood by some. But context is everything when determining whether speech is actually hateful or not, so this objection seems nonsensical. Any reasonable judge should be able to discern the difference in intent or effect behind a hateful message and the speech that critiques it.

Another objection is that prosecuting hate speech removes accountability from those who actually commit the violence, turning violent perpetrators into victims of hate speech. But no-one is suggesting that hate speech causes people to act against their will or takes away their personal responsibility. Typically, hate speech creates an environment in which a person who is already sympathetic to the views of the speaker feels validated and encouraged to take action, with a reduced fear of punitive consequences and even anticipation of praise and support from the in-group that shares their views. Nothing prevents a hate-inspired murderer from being prosecuted in the same way as any other violent murderer—in fact, many countries mete out harsher penalties for hate-motivated crimes. But those who inspired the murderer should also be prosecuted separately under hate speech laws.

Many people seem to treat freedom of expression as an almost sacred, inviolable right, but this is far from the reality. In constitutional democracies, free speech is already justifiably restricted in a multitude of ways by law or policy, even in the United States. The quintessential example of prohibited speech is falsely shouting “Fire!” in a crowded theatre. Besides hate speech itself, some other generally accepted prohibitions of speech include:

  •  Sedition (advocating force as a way to change the government)
  • Threats
  • Defamation (libel and slander)
  • False or misleading advertising
  • Buffer zones around abortion clinics that prevent anti-abortion protesters from harassing patients and staff
  • Quiet zones near hospitals or schools
  • Municipal bylaws restricting the location, size, type, content, and display of signs, posters, objects, ads, etc.
  • Profanity on public airwaves
  • Publication refusal, censorship, and the right to edit enforced by news websites, online forums and blogs, newspapers, magazines, radio, and other media
  • Company confidentiality policies (such as employees being prohibited from sharing trade secrets or talking to the media)
  • Gag orders or publication bans in contracts, court cases, and settlements

In practice, courts will look at circumstances on a case-by-case basis to see where a balance should be struck between freedom of expression and some other value or right. No single right trumps another in all circumstances, not even the right to life. For example, Canada’s constitution (Section 1 of the Charter of Rights and Freedoms) allows a fundamental right such as freedom of expression to be limited to protect someone else’s fundamental rights, such as the right to life or liberty—or in the case of abortion, women’s right to safely access a necessary medical service, which courts have determined outweighs the protesters’ right to protest outside clinics.

Some current legal restrictions on free speech are not on the above list because they are clearly illegitimate. One of those is insulting your country’s head of state, currently illegal in at least eight countries, mostly in western Europe. This offence is called “lese-majesty,” a holdover from the days when kings were divine. But if political leaders are immune to criticism or ridicule, they have far too much power over the people and the country cannot be a true democracy. In general, the public must be allowed to pass judgment on public figures, because the latter owe their position to public support in the first place, which should not be coerced or bought. For example, public figures in the U.S. are not protected from defamation unless it was done with malice—knowledge of falsehood or reckless disregard for the truth. 

Many countries also criminalize blasphemy—the criticism of religious doctrines or practices. But the desire to protect religion from criticism is simply a reflection of the insecurity of believers who doubt their own beliefs. Blasphemy laws have more in common with hate speech actually, because they often result in hateful rhetoric and violent acts against the “blasphemers.” Further, many religious people have a tendency to confuse hate speech with dissent, such as Catholics who hurl accusations of “bigotry” when someone criticizes Church policies or dogma. But hate speech is personal—it is directed against people based on their identifiable characteristics. Dissent on the other hand is speech against other opinions, beliefs, or positions. Dissent is an essential component of a free democracy, and it includes blasphemy. In other words, you should be free to attack Catholic policies that protect abusive priests, but it would be hateful to say that all Catholic priests are pedophiles.

Examples of Anti-Abortion Hate Speech That Should Be Prosecuted

The history of violence against abortion providers makes a very strong case for prosecution of those who disseminate hate speech against them. Almost all of this violence has occurred in the U.S., which makes a compelling argument for limiting First Amendment protections of hate speech.

On a Sunday morning in May 2009, abortion provider Dr. George Tiller was assassinated while attending church in Wichita Kansas. The killer, Scott Roeder, had been planning the act for some time and had gleaned information about the doctor’s movements from Operation Rescue—an anti-abortion group that Roeder was actively involved in and donated money to. This radical group had moved to Wichita in 2002 for the sole purpose of driving Dr. Tiller out of business, and in the seven years leading up to his murder, Operation Rescue (OR) engaged in a relentless campaign of hate and harassment against him, including aggressive picketing, numerous articles and press releases, baseless criminal charges, frivolous lawsuits, and trumped-up grand juries convened against him. (Dr. Tiller was fully vindicated in every legal battle.)

Two years before the assassination, Roeder posted on OR’s blog, urging people to attend Dr. Tiller’s church. He himself attended the church a few times, and also participated in OR’s pickets outside Dr. Tiller’s clinic. Roeder was in regular contact with OR’s President Troy Newman, as well as Senior Policy Advisor Cheryl Sullenger, who was convicted in 1988 of conspiring to bomb a California abortion clinic. When Roeder was arrested, Sullenger’s phone number was found on a post-it note on the dash of his car. Sullenger later admitted having several previous conversations with Roeder, in which she gave him information on Dr. Tiller’s habits and whereabouts, including his trial dates. In the months before the murder, Roeder had attended at least one court hearing—sitting beside OR’s President Troy Newman—to hear Dr. Tiller defend himself against scurrilous charges brought by OR.

It’s clear that Roeder was not a “lone wolf.” Perhaps Roeder did not directly involve anyone else in his plans, but no-one develops their views in a vacuum. Dr. Tiller’s murder was the natural culmination of over 20 years of anti-abortion harassment and violence directed at him and his clinic, much of it by Operation Rescue. Roeder had been immersed in OR’s violent anti-abortion rhetoric for years, so his beliefs and compulsions were fed by that environment, and thrived on it. Obviously, it played an encouraging role in the violence he committed.

Another key person who helped fuel the fire was Fox TV commentator Bill O’Reilly, who has about 3 million listeners. Between 2005 and 2009, Bill O’Reilly and his guest hosts talked about Dr. Tiller on 29 episodes, including just one month before the assassination. The most common epithet repeated many times by O’Reilly was: “Tiller the Baby Killer.” Other comments by O’Reilly included: “[Tiller] destroys fetuses for just about any reason right up until the birth date for $5,000.” He ‘s guilty of “Nazi stuff.” “This is the kind of stuff that happened in Mao’s China, Hitler’s Germany, Stalin’s Soviet Union.” He “has blood on his hands.” He’s “a moral equivalent to NAMBLA and al-Qaida.” He operates a “death mill” and a “business of destruction.” “I wouldn’t want to be [him] if there is a Judgment Day.” Although O’Reilly didn’t specifically incite someone to murder Dr. Tiller, he put him in the cross-hairs, providing enough motivation and encouragement for someone to carry out the unspoken deed.

Of course, it wasn’t just Dr. Tiller and his clinic that were the targets of ongoing harassment and inflammatory hateful rhetoric. The reign of terror directed at clinics and providers across North America has been going on for 35 years—including 9 previous murders and 20 attempted murders of doctors or clinic staff, 100’s of arsons and bombs and butyric acid attacks, and 1000’s of death threats, stalking, clinic invasions, vandalism, aggressive pickets, and hate mail. Some shootings in the early 1990’s were directly preceded by “Wanted Posters” put out by anti-abortion groups on the doctors, complete with their home and clinic addresses and often their photographs. Doctors David Gunn and John Britton were murdered by anti-abortion extremists and had been featured on wanted posters, along with George Tiller, who was shot and wounded in 1993. (The murder of a fourth doctor on a wanted poster, George Patterson, could not be conclusively linked to an anti-abortion extremist.) The posters were deemed by a federal court in 2002 to be a “true threat” under the FACE Act, federal legislation that protects clinics from violence. Noting that the posters had preceded the murders, the court said it was the “use of the ‘wanted’-type format in the context of the poster pattern—poster followed by murder—that constitutes the threats,” not the language itself. With this decision, the judges overturned a lower court ruling that had deemed the posters and a related website to be “protected speech” because they did not directly threaten violence.

Conclusion

When people and courts defend hate speech against abortion providers as “protected speech,” it must be asked: Why are abortion providers required to risk their lives so their persecutors can have free speech rights? Why should doctors constantly have to look over their shoulder in fear, go to work in bullet-proof vests, pay out of pocket for security guards and other expensive safety measures, keep their home address a secret and their curtains permanently drawn shut, and see their children ostracized and bullied at school, just so their persecutors have the right to call them “baby killers”? Why does the right to free speech allow members of this vulnerable minority to be openly defamed and targeted for decades until they’re finally assassinated? And why do the families of the slain victims have to suffer in their grief and loss, because free speech was deemed more important than the lives of their loved ones?

The idea that vulnerable persons and groups should have to tolerate hate speech against them in the name of freedom of expression—often over decades or a lifetime—is offensive. We’re talking about peoples’ lives after all—this is not just a philosophical debate. The right to free speech is a fundamental value, but it should not be allowed to outweigh the basic human rights of other people, especially their right to life.

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Civil rights, Law and Policy

“”I do not agree with what you say, but I will defend to the death your right to misattribute it to Voltaire.

—Voltaire[1]

Freedom of speech is the right to communicate with any other person, or persons, without fear of unwarranted restriction, censorship, or organized reprisal. Under most Western legal systems, any government intervention or restriction must be specific, and have a defined purpose beyond simple censorship. It is a concept integral to liberaldemocracies, and indeed Western civilization. The restriction of this right is characteristic of totalitarian regimes.

The ability to freely speak your mind is widely seen as a natural right, in other words a government (or any other institution) can't grant you this right, only take it away. However the protection of this right is written down in many legal documents. It is guaranteed under Article 19 of the Universal Declaration of Human Rights, and in the First Amendment to the United States Constitution (part of the Bill of Rights). These laws prevent governments from infringing on your freedom of speech. In themselves, they do not mean that any other institution has to protect your freedom of speech, and as such does not mean that a private business cannot tell employees what they may or may not say, that a public club cannot impose some restrictions on types of speech at their center, or that a privately owned Internet forum may not moderate messages for content or viewpoint. However, since corporations and similar entities control a lot of online territory while being beholden to sponsors, sensitive to their bottom line, and subject to boycotts and other campaigns by pressure groups, legal protections that bind only governments are increasingly irrelevant to the protection of freedom of speech.[2]

History and philosophy: the American tradition[edit]

In the United States of America, the concept of "freedom of speech" is deeply rooted in the national consciousness, and not easily assailed. Built on a series of legal doctrines developed by the courts, the central purpose of the liberty is protection of political speech, above all else. Commercial speech is subject to some lesser protection, but literary speech is generally considered to merit the same protections as political speech (much of that material is political, explicitly or indirectly). When, however, speech constitutes incitement to "imminent lawless action" it may be prohibited and prosecuted. Moreover, defamation of living individuals may be a cause for lawsuit, and in the very rare instance even criminal prosecution in a dwindling few states. Public figures, however, are less able to recover for defamation, as the threshold is much higher and extremely difficult to meet.[3]

Necessarily, restraints must be "read into" the Amendment. Therefore, speech may be restricted as to "time place and manner." After all, no matter what pressing cause some asshole wants to communicate to you, she can't do it driving through your neighborhood at 3 a.m. with a bullhorn.

Seditious advocacy[edit]

Seditious advocacy is the support of policies antithetical to the government, or the speech act of hindering a government project. For example, protesting outside an army recruiting station is seditious advocacy: it undermines the government's efforts to recruit and fight a war. Similarly, wiring the Pentagon's top secrets to Osama bin Laden would surely constitute seditious advocacy. But, the former speech is protected political speech; the latter, however, would likely violate constitutional protections of classified information. (Bona fide national security purposes permit a prohibition of even politically motivated speech, but even those exceptions must be narrowly tailored.)

Seditious advocacy was historically unprotected speech in British law; however, the Founders' generation fought vigorously on this issue.[4] In the 20th century, the following formulation emerged: unless speech threatens to incite "imminent lawless action," the speech act is protected.[5] Further, the speaker encouraging lawlessness must have "specific intent" to "expressly incite" lawlessness: he must not merely be arguing in favor of lawlessness as an abstract idea. Supporting the concept of the violent overthrow of the United States is protected; inciting an angry mob to lynch army recruiters is not.

Obscenity and profanity[edit]

Traditionally, the government held power to prohibit the obscene and the profane. As recently as 1800, it was considered acceptable for the state to punish blasphemy. Needless to say, things have changed a lot. The US has moved from "I know it when I see it," to merely bleeping "the seven words you can't say on the radio" from on-air broadcasts and basic cable. If one pays for premium cable channels, those soul-corruptingly dirty words — as frequently heard on any middle school playground — will be accessible even to the foolhardy adult.

Content-neutral restrictions[edit]

The "content-neutral" doctrine stands for the principle that the government can regulate speech, within reason, so long as it does not take a side in an intellectual debate - that is, so long as it does not take a position as to content. Thus, American governments traditionally enjoy wide discretion to regulate the "time, place, or manner" of speech.

The rule of the public forum is an outgrowth of "content-neutral" doctrine: under this rule, the government is generally powerless to regulate speech in traditional public fora such as streets and parks, since these areas are property held in the public trust for political use.[6] However, the public forum rule has important qualifying rules:

  • In a "limited designated forum" - that is, government property opened to public use for a particular purpose only - subject matter regulations are appropriate. Thus, a city may forbid obscene speech or advertisements in publicly owned transportation vehicles, such as streetcars.[7]
  • Similarly, public school facilities opened to the public as after-school meeting places are limited-designated fora.[8] Thus, subject-matter regulation is appropriate in administering public school space requests. However, discriminating against religious speech, while seemingly a subject matter regulation, is apparently a forbidden viewpoint regulation: thus, public schools cannot exclude religious groups from using their facilities after school.[9] If that sounds absurd, it's because it is.

At the extremes, though, the general acceptance of "content-neutral" regulation can become the exception which swallows the rule. During the George W. Bush presidency, a popular "time/place/manner" restriction, especially used to regulate protesters during Republican rallies, was the confinement of protesters to "free speech zones" isolated geographically from the site of the event being protested. While this is, technically, a place and manner regulation, the function of the rule is to eviscerate the right to speech: government power to reasonably regulate speech cannot be allowed to confine speech to the corner of the world where it is least effective, after all.

Incidental effects issues[edit]

As a general rule, when an act is proscribed by a law for general application, its prohibition cannot be challenged because of the incidental effects of the law on speech activities. This is to say that you can't shoot someone, then claim it's "free speech": if laws against murder incidentally burden free speech rights, the effect is outweighed by the necessity of the rule of general application.

The rule that comes from United States v. O'Brien, on this matter, is that where the government's interest in a law of general application is unrelated to the suppression of speech, the general law cannot be challenged because it chills speech. Thus, a law banning flag burning as desecration would be unconstitutional; however, a law banning outdoor fires, and incidentally touching upon flag burning, would be constitutional.

Limits on freedom of speech[edit]

The general public's understanding of the protections of free speech afforded in the United States by the Constitution are generally broader than the protections actually are. Conservatives are known for defending their pundits by stating that "it's a free country" - pundits can say what they want, without being "censored" for their beliefs.[10] Ditto, supposedly scientists being paid to produce science can defend their poor science on the grounds that "it's a free country," and they can say what they want to say.[11] Technically, yes. The right to free speech is guaranteed by the Constitution. But, it is guaranteed vis a vis the government - not necessarily vis a vis private individuals. While individuals have a high level of protection of their speech against government censorship, these high levels are triggered only by state action - that is, the government's actual use of power. On the contrary, just as in discrimination law, lower levels of protection attend non-state based limitations on speech. While the Constitution prevents the government from punishing you for your speech (generally unless such speech has as its purpose "imminent lawless action"[12]), the Constitution also cannot protect you from a private organization censoring your speech by taking some private, non-state action against you.[13] In fact, the First Amendment has been held to protect the freedom not to promote views other than one's own.[14]

So while it's a free country, and pundits may be pundits, and say what they will, they need not be surprised, and may not claim the First Amendment as a protection, when they are fired for making ridiculous statements. One must also note, too, that the assertion to the contrary by conservative networks only triggers when one of their own gets in trouble - when someone else starts to say something controversial, all of a sudden, they seem to back down.[15][16]

Lying[edit]

It actually depends on how, when, and where one lies, but lying can be illegal if your words hurt either individuals (e.g., through fraud) or society at large. This could include "yelling 'fire' in a crowded theater" (or pulling the fire alarm in said theater as an artistic stunt), some hoaxes, selling miracle medical pills as a cure for diseases without testing to make sure the claims are legit, or telling you what's in them, or telling investors in your company that you can double their money in under a month, as long as they keep recruiting more investors. Writing false information on government forms is not protected free speech. Lying in an attempt to deceive the justice system could be either obstruction of justice (if you do it to the police) or perjury (if you do it under oath in court). Committing any of these forms of "free speech" could result in serious civil or criminal penalties. Slander or libel can also cause you to be sued.

Comparative limits on other topics[edit]

The limits of free speech depend on the values and leaders of a society. Most nations have copyright and patent laws preventing the dissemination of stolen ideas. Many countries also have libel and slander laws of varying strengths. For example, in the UK, if sued, one must prove that you haven't slandered someone. In the U.S. the burden falls on the plaintiff. If speech is judged to cause an imminent threat, it is also sometimes regulated. Obscenity and hate speech are also areas of active debate.

In the U.S., the default position is usually in favour of free speech. For example, speaking or writing ill of a public figure is not slander/libel unless it is done with actual malice, i.e., with knowledge that what is said is false or in reckless (not merely negligent) disregard of its truth or falsity.[17]Private figures are held to a significantly lower standard, although it is still a fairly high threshold; the one caveat is that every now and again a case comes up where, through some legalese chicanery, someone is transformed into a public figure from nowhere.[18] Speaking ill of a book, website, or other publication is also not libel, as it expresses an opinion.

Collateral issues[edit]

“”Censorship! Like in that book I've never read, Brave New 1984: Fahrenheit Farm

—bagastoga[19]

The idea of freedom of speech is often taken to extend far beyond the actual act of speech, or taken to be much more limited than it really is. The former is known as the "right not to be criticized" and the latter as the "right not to be offended."

Aggressive criticism[edit]

“”Everyone is in favor of free speech. Hardly a day passes without its being extolled, but some people's idea of it is that they are free to say what they like, but if anyone else says anything back, that is an outrage.

—Winston Churchill

Oftentimes a media figure will say something incendiary, an academic will publish a controversial paper, or a newspaper will publish a polemic piece, which triggers immense backlash and criticism. The original author and their ardent defenders will accuse their critics of trying to "censor" them, insisting that their right to freedom of speech or press is under attack. In the U.S., this is often invoked by Fox News contributors and their ilk. In reality, they are arguing that their right to freedom of speech also guarantees a right to be free from criticism, conflating strong disagreement with the contents of an act of speech with an attack on their right to speech itself. Ironically, criticism itself is protected speech, so enforcing this imaginary right would infringe on the actual free speech rights of the detractor.[20] In other words, you can bitch all you want, but you can't stop people from bitching at you.

Right to be heard[edit]

Evangelists of any type seem to think that their message is so important that any attempt to shut them up, no matter how off-topic or inappropriate it may be for the venue, is unacceptable censorship. It doesn't really matter what the belief is, although evangelists for fundamentalist religions and conspiracy theorists are the most likely to try to do this, and scream like whiny children when told to stop.

Similarly to the above, some will complain that an individual, group, or organisation is denying their right to free speech by banning them from attending something, or saying something while there. Independent parties, such as private universities, clubs and shops, may well be free to enforce any standard on speech that they wish, and private organizations such as religious colleges may well have orthodoxies and ideologies that they wish to promote, and as such will seek to suppress opposing viewpoints.[21] You don't have the right to incessantly scream "faggots" at a GSA meeting.[22] State universities are subject to First Amendment law, however.[23]

Private businesses are allowed to have editorial policies as well as points of view they wish to promote and oppose. With private media organizations, what appears on their outlets is bound by their terms, something that flew over the heads of those who accused the ABC network in the US of "censorship" for not wanting Toby Keith to perform his September 11-themed song "Courtesy of the Red, White, & Blue (The Angry American)" to open ABC's 2002 Independence Day special. The song included lyrics, "You'll be sorry that you messed with the U.S. of A. 'cause we'll put a boot in your ass - it's the American way."[24] Peter Jennings, ABC's evening news anchor and host of the special, responded to such charges by saying that opening the show with Keith's song "probably wouldn't set the right tone", as a prime time Independence Day special should be positive and fun instead of angry.[25]

Bill Maher has accused activists who inform advertisers of the Rush Limbaugh radio show about questionable content on the show of being against free speech—which is dubious, since free speech does not entitle one to be commercially subsidized for it.[26] Furthermore, just because a mainstream outlet like a terrestrial radio station or major television network excludes content doesn't censor the content, because the creator can alternatively produce content for an independent media outlet-Glenn Beck's The Blaze empire of a television network, radio network, and website for instance. This, however, introduces the factors of money and audience share into the free speech debate. As the reaction to the Citizens United Supreme Court decision shows, allowing people all the "free speech" they can afford leads to an inherent bias in favor of the wealthy. It also allows media businesses to serve as gatekeepers who set the terms and conditions of debate.

There have also been accusations that Condoleezza Rice and Ayaan Hirsi Ali were censored by universities that decided to rescind invitations to them at commencement ceremonies. The usual claim is that these speakers already have plenty of public outlets, and that the audience that does not welcome them is familiar with their works and record and does not want them. They further often suggest that the unwanted speaker has plenty of institutional power already and does not need to appear at the rejecting institution to get the word out.[27] Furthermore, commencement speakers often "voluntarily" cancel appearances because of student protests.[28][29] This, however, begs the question of whether speakers ought to be protested on account of their past opinions at all, and whether protesters ought in that instance to be given a heckler's veto.[23][30] And raising the issue of "institutional power" raises other uncomfortable issues. These campaigns of boycott and shouting-down almost always pick locally unpopular targets.

On the Internet, people tend to field this argument when faced with perceived abuses by moderators in the forums and comments sections of various websites. A particularly onerous cry of censorship can sometimes be heard when popular YouTubers shut down their comments sections due to abuse. (Though one might wonder why a world without YouTube comment sections would be a bad thing.) The Internet, once a project of the U.S. Department of Defense, has metamorphosed into a corporate medium whose infrastructure is privately owned by corporations, who in turn are often beholden to advertisers.

This adds a profit motive to Internet censorship, and makes the decisions of businesses about what content to host unaccountable to conventional free speech law. Businesses have been able to exercise their power over online discourse in a number of alarming ways. The world may well not be much poorer because Stormfront lost its domain registry after a hostile campaign. On the other hand, Google has used its market muscle to get a think tank professor fired because he published research critical of the corporation.[2] First Amendment law is no longer an adequate protection of free speech when the primary public forum of the age is privately owned and not subject to those laws.

Political speech[edit]

See Ag-gag laws.

Defenders of the Citizens United v. Federal Election Commission ruling often claim that "political speech" is the point of free speech.[31] The point of free speech is, under this view, a right to speak and be heard about political subjects. And indeed, discourse about politics was considered the paramount speech to be protected by the drafters of the United States First Amendment to the Constitution. The primacy of place has been upheld to this day in Supreme Court decisions.

In fact, most political speech is as obviously self-serving and deceptive as other forms of advertising. Watch a typical campaign advertisement of the sort bought by political action groups in the United States. It is hard to arrive at the conclusion that such messages are more worthwhile or worthier of your attention than the advertisements for smart phones, patent drugs, and automobiles that surround them. Non-political poetry or pornography would likely be less of a waste of time. Freedom of speech is a right to self-expression; it may assist political participation, but that is not the only or even the main point.

State of free speech in other countries[edit]

  • Australia requires that the government approve all video games before they are sold in the country, and now seems on its way to making an Internet censorship machine to rival the Great Firewall of China.[32]
  • Canada has a ban on certain types of hate speech, which has recently stirred up a number of high-profile controversies:
    • In 2002, a fundamentalist named Stephen Boissoin wrote a letter[33] into his local paper, the Red Deer Advocate, criticizing gay people for being on the fast train to hell. He was convicted and ordered to write a letter of apology.[34] This was later overturned on appeal.[35]
    • Human rights complaints were made against a magazine, the Western Standard, that published the Jyllands-Posten Muhammad cartoons. Ezra Levant, publisher of the magazine, was brought to a hearing before the Alberta Human Rights Commission, and, despite his best efforts, was acquitted.
    • Maclean's was also the subject of a human rights complaint for publishing "Islamophobic" material. The human rights officer assigned to the case said "Freedom of speech is an American concept, so I don't give it any value." You can imagine the response to that.
  • Europe also limits speech. The European Convention on Human Rights guarantees free speech in matters of public interest; this risks powerful pressure groups defining the public interest their way. Laws against racist speech, Holocaust denial and hate speech of varying kinds exist in many European countries.
    • In the United Kingdom many types of speech are potentially hate speech and potentially illegal. Also in the UK, a 2006 law banning "incitement to religious hatred" was strongly criticized by some comedians (who probably remembered the flap surrounding Life of Brian) and by the National Secular Society. Liberty, the UK equivalent of the ACLU, is uneasy over many restrictions to free speech.[36][37]
    • In the United Kingdom, it is illegal to sell video recordings that have not been rated by the British Board of Film Classification.
    • A throng of countries also enforce hate speech laws.

Free Speech vs Frea Speach and Freeze Peach[edit]

A term developed in the anti-spam community from a typo by a two-bit spamlord, "frea speach" can profitably be used to describe any perception of a right to keep shovelling bullshit at people without fear of being corrected or even challenged. Health freedom is a similar phenomenon in alternative medicine circles. Some social justice advocates also use the expression "Freeze Peach" in reference to people who erroneously believe that negative responses to offensive, harassing, or threatening speech such as being blocked from a blog's comments section or targeted for an advertising boycott constitutes a violation of their free speech rights.[38]

See also[edit]

External links[edit]

References[edit]

  1. ↑sketerpot on LessWrong about Evelyn Beatrice Hall
  2. 2.02.1Rushe, Dominic. Scholar says Google criticism cost him job: 'People are waking up to its power'The Guardian, August 31, 2017.
  3. ↑Hustler Magazine v. Falwell (yes, that Falwell) was a landmark case in this respect, and simultaneously demonstrated the power of the Streisand effect in such situations. One public figure who succeeded in court was Steven Pagones, and even his success was only partial.
  4. ↑See the Alien and Sedition Acts.
  5. Brandenburg v. Ohio.
  6. Hague v. CIO.
  7. Lehman v. City of Shaker Heights.
  8. Rosenberger v. University of Virginia.
  9. Lamb's Chapel v. Center Moriches Union Free School District.
  10. ↑Here's Newsbusters: "NBC's Today Asks, Should Coulter Be 'Taken Off the Airwaves Permanently?" [1]
  11. ↑Ben Stein thinks so. See our article on Expelled: No Intelligence Allowed.
  12. ↑Compare Schenck v. U.S., 249 U.S. 47 (1919), with Brandenburg v. Ohio.
  13. ↑Generally. There are always exceptions, but the above referenced are not any such exception.
  14. Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1 (1986)
  15. ↑And here's Newsbusters again: "Olbermann Likens Newt Gingrich to Nazis, Defends Terrorists’ First Amendment Rights" [2] Hmm.
  16. ↑Remember Jerry Falwell suing Larry Flynt & Hustler over a little joke? Where was the "it's a free country" cry from the right, then? (Now, this is a different matter because the Constitution does actually protect your ability to insult public figures... at a very high level.)
  17. ↑See New York Times Co. v. Sullivan, and Hustler Magazine v. Falwell.
  18. ↑One of the more egregious examples was what happened to Richard Jewell, who was limited in his ability to sue the media outlets who trashed his name for months because he was somehow a "public figure". Your guess is as good as anyone else's.
  19. ↑https://www.reddit.com/r/BestOfOutrageCulture/comments/4df9g5/censorship_now_moves_to_source_code_revision/d1qhi8r
  20. ↑Speech Is Tyranny! Popehat. July 1, 2009.
  21. ↑PZ Myers, "Drowning in noise: How accommodating nonsense poisons our discourse."
  22. ↑And the BSA has heard more than enough of it in recent years.
  23. 23.023.1Speech on Campus, ACLU.
  24. ↑New York Post, Wail on Jennings. June 26, 2002.
  25. ↑Courtesy Of The Red, White & Blue. CBS News: October 28, 2003.
  26. ↑The Joke Is On Bill Maher, Who Doesn’t Understand Free Speech
  27. ↑See, e.g., David Shariatmadari. "There’s no crisis of free speech. Milo’s campus crusade is rank hypocrisy". The Guardian, Sept. 19, 2017
  28. ↑PZ Myers, If only they understood what free speech is…
  29. ↑Adam Weinstein, [Gawker.com: archive.is, web.archive.org In Defense of Protesting Commencement Speakers]
  30. ↑The argument also elides the question of whether the speaker will even be addressing their controversial opinion. (Of course, most commencement addresses are dull platitudes.) Or, for that matter, whether the speaker has something to offer that excuses whatever offense they've given. Germaine Greer is a living historical figure who played a part in shaping the contemporary world. She remains someone you could learn something from.
  31. ↑See, e.g., Roger Pilon, The First Amendment and Restrictions on Political Speech. Cato Institute, May 5, 1999.
  32. ↑See the Wikipedia article on Internet censorship in Australia.
  33. ↑The letter
  34. ↑Archive copy at the Wayback Machine
  35. ↑Boissoin v. Lund, 2009 ABQB 592 (CanLII)
  36. ↑Free Speech and Protest
  37. ↑Speech offences
  38. ↑http://www.patheos.com/blogs/daylightatheism/2013/05/free-speech-vs-freeze-peach/

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