When I first started this blog, I didn’t really expect too many people to pay attention to it aside from my old Livejournal/Castlevania Dungeon buddies. I’ve been striking out on my own a little bit more, though, and I’ve found quite a few interesting people outside of those communities. While I haven’t got much attention, I have found a few folks who I deem worthy of my attention. One of them is a Mr. Scott Alexander, proprietor of the Slate Star Codex blog. He first came to my attention via his “Anti-Reactionary FAQ,” which is to my knowledge the largest and best refutation of a variety of ideas espoused by people on the “neo-reactionary” segment of the far right. He writes very well and thoughtfully on a variety of subjects, however, and one of those subjects is free speech. I found a recent post from him on that topic particularly compelling. So much so that I wanted to devote a full post to it rather than a comment.
Here, Scott discusses a pop-culture brouhaha I’m sure at least some of you have heard about already—Phil Robertson, the “Patriarch” of the Duck Dynasty TV show being sent off the air due to some homophobic remarks he made. He admits those who argue Phil ought to have lost his job over his remarks are technically correct; the First Amendment of the U.S Constitution only applies to the federal government (or, thanks to the 14th Amendment, the state governments). Thus, while neither the federal nor the state governments have the power to punish homophobes like Phil, some on the left, such JT Eberhard (who Alexander is responding to), believe private actors such as Phil’s employer are within their rights to punish him.
Scott, however, believes that the First Amendment alone isn’t enough to safeguard free speech in our society. At least some degree of tolerance for offensive views on the part of private actors, such as employers, is necessary for honest, open engagement between different points of views. As he says,
“If there’s a norm of trying to punish the people with opposing views, then it doesn’t really matter whether you’re doing it with threats of political oppression, of financial ruin, or of social ostracism, the end result is the same – the group with the most money and popularity wins, any disagreeing ideas never get expressed.”
I think Scott raises an excellent point, and it’s something I wish more people considered. If someone says something—anything—it’s technically within the Constitutional rights of everyone else to react to that first statement in any number of non-violent ways. You can call the person bad names, or fire them/attempt to get them fired, or dox them, or round up an online mob to insult them and harass them constantly, and all that is technically within your rights as a private actor. As the old saying goes, however, just because you can doesn’t mean you should. While this keeps with the letter of the law, it’s not really conducive to its spirit—the maintenance of a society in which people can debate any idea, even an unpopular one, freely and openly. Social and/or economic pressure can be just as onerous as state oppression. If anyone who espouses an unpopular opinion or idea is threatened with losing their job, fewer and fewer contrarians will speak up and the public exchange of ideas will become dull, stagnant, and repetitive with no opposing viewpoints, even if the government does absolutely nothing. The First Amendment becomes a dead letter, in short.
Not so fast, though. There are some critics of the “Spirit of the First Amendment” argument I’ve drawn above. In a post made the day after the first one I linked to, Scott addresses one of these critics. According to the folks at Popehat,
“The phrase “the spirit of the First Amendment” often signals approaching nonsense. So, regrettably, does the phrase “free speech” when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn’t like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks “why was it necessary for you to say that” or “what was your motive in saying that” or “did you consider how that would impact someone” to the second person and not the first. It’s ultimately incoherent as a theory of freedom of expression.”
This is a good point. After all, while the purpose of the First Amendment may be to protect unpopular speech, ideas, and opinions, it shouldn’t be taken to shut down popular versions of these things either. That would be just as bad, and just as contrary to the “spirit” of the law. Scott agrees, but at the same time he still thinks the “spirit of the law” argument has merit. In his view (and he quotes from his colleagues at lesswrong.com), people should respond to bad arguments with counterarguments. Not bullets, or doxxing, or mobs, or threats of losing a job. A counterargument is part of a debate and thus part of the healthy public discourse the First Amendment is supposed to foster. Threats of unemployment or social ostracism are not part of a debate but attempts to simply shut down an opposing viewpoint without necessarily demonstrating its wrongness, even if it actually is wrong. Those kinds of actions, despite technically being allowed by the First Amendment, still run contrary to its spirit.
Yet we must also make allowances for what is practical for private citizens as well. After all, if it’s unfair for someone to be “economically punished” (via the loss of their job, to take one example) for exercising their right to participate in a free and open public discourse, isn’t it as unfair for an employer to lose business because of an employee who abuses that right? Dave makes this point in the first comment of The Spirit of the First Amendment, and Patrick also stated here that in some cases, a private/public workplace distinction does not exist. Finally, Eli of “Rust Belt Philosophy” avers that “context determines the correct way to respond to ideas that you disagree with, and there are many contexts in which the correct response involves punishment.” This is yet another good point, and I’d like to expand on it. I claim to speak for neither Scott nor Eli (nor anyone else at all, for that matter), but here are my own beliefs on how to respond to ideas you disagree with.
Gunlord’s 1st Rule of Responsible Free Speech: When responding to any given statement or argument, take into account a) how it is expressed, b) how likely it is to be directly dangerous, c) how much power or influence (social, economic, physical, etc.) its advocate has, and d) the intentions/motivations of the advocate. Your response should therefore be proportionate to all four of these factors taken together, and no more.
I understand this may seem unclear; I’ll freely admit I’m not the world’s greatest writer. Allow me thus to walk you through my thought process when encountering an idea or argument I disagree with. Hopefully that will make things more understandable than my explanation.
Let’s say I come across someone saying something I take strong exception to. I *could* tell him (or her) to fuck off, threaten to kick his ass, call all my friends to boycott his business and tell his employer to fire him, shrug my shoulders and ignore him, or (as Scott would prefer), engage him in argument. Before choosing one of these actions, however, I’d first examine what the fellow was saying in relation to the four factors of my 1st Rule.
To begin with, while I may disagree with this person’s ideas, I’d ask myself how he was expressing them. Was he screaming, or ranting and raving (if in real life) or typing in all-caps (if on the Internet)? Was he spewing a lot of insults or racial epithets? Or was he making at least an attempt to be coherent and respectful, with extra points awarded if he attempted to back up his assertions or opinions with facts and citations? If the former, I would be inclined to reply to him in a harsh and negative fashion or just laugh him off; if the latter, I would at least begin to consider allowing him a fair hearing.
Secondly, I would consider the likelihood that his ideas could directly cause or incite others to cause harm in meatspace. The word “directly” is most important there, so allow me to flesh out my example and show you how I conceive it. Let’s say my hypothetical opponent is being coherent and respectful, but is claiming that Non-Christians will all go to hell, or that black people are intellectually inferior, or that gay people are disgusting. These may be intolerant and uncharitable beliefs, but in and of themselves they are unlikely to necessarily cause social or physical harm to people IRL. They may contribute to it, but it’s less probable (compared to the examples I’ll give next) to incite violence. Someone can believe unbelievers will go to hell, but that doesn’t necessarily mean they’ll do anything to unbelievers, someone can believe blacks are inferior, but they may just avoid them rather than trying to hurt or oppress them, and so on.
Now, what if my opponent was saying something like “I think all unbelievers/blacks/gays ought to be killed/enslaved/forbidden from employment?” That’s where we start to have problems. Since my opponent is describing specific, hurtful actions (even if he refrains from committing them himself), his speech is more likely to incite or cause violence, and deserves a harsher response, perhaps even boycotts or the loss of a job if he’s advocating something very serious like terrorism or mass murder. Needless to say, if he was actually making threats (saying “I’m gonna assassinate this politician” or “I’m going to shoot some gays”), then it’s appropriate to use force against him. Freedom of speech does not mean freedom to commit violence in the future, obviously, so it’s best to take threats seriously and punish those who make them before they can make good on them (at least, if they can really carry out such threats—see point C).
When I’m done with that, I’ll start on the third step: Thinking about how much social or economic power my enemy possesses. After all, his beliefs, opinions, and arguments are dangerous to the extent to which he can affect or make others affect real change in the world. Let’s say for the first two steps, my opponent was being respectful and was arguing for a proposition I found abhorrent but not necessarily violent, like “gays are disgusting” or “unbelievers go to hell.” I’d then ask myself, “Who is this guy?” Was he a homeless person, with no social or economic power? I’d be more inclined to respond to him gently, or just ignore him, as he would likely not be able to kill, hurt, or even inconvenience many members of the groups he dislikes, or convince others/pay for others/somehow coerce others into doing so. If he were a teacher or employer, however, I would respond more sharply, because he might possibly make life difficult for his students or employees. If he was an employee who interacted with people a lot, I believe he possesses a degree of influence (even if he lacks much power) and deserves harsher consequences, because if his beliefs ‘influence’ people to take their business elsewhere, his employer would be unfairly penalized. And, of course, if he was a politician with a great deal of social, economic, and political power, it would be reasonable to vote against him or even organize boycotts against his business, as he could possibly do great harm given his position.
And now, for the last step: In exercising his right to free speech, is my opponent acting in good faith, accurately conveying what he sincerely believes, or is he being intentionally provocative in the hopes of getting a rise out of people? If the former, it makes sense to engage him (positively or negatively, depending on the previous three factors), but if the latter, you ought to consider just ignoring him, as he probably just wants attention in that case. Not that I’m making any sort of moral posturing here, mind you! I’ll freely admit I used to do this silly trolling stuff back when I was a teenager. Still, I’ve grown up since then, and I think it’s a waste of time to deal with people who haven’t, so I choose to ignore that sort of nonsense rather than engage with it these days.
In practice, then, when exercising my right to free speech in response to an opponent exercising his, I, at least, ought to modulate my response in accordance to each of these four factors.
Let’s say my opponent respectfully (step a) argues for something I deem to be mildly deleterious (say, censorship of anime or manga, step b) but argues from a position of low to moderate power or influence (step c) and does so in good faith (step d). It seems reasonable that the most proportionate response and thus the most appropriate and constructive use of my own First Amendment rights would be to engage this fellow in a friendly discussion and hope my good arguments can win over his bad ones, and perhaps even convince him. Going overboard and threatening him, or even calling for boycotts of his business, or for him to be fired, or to harass him, is wildly disproportionate. More importantly, it would be profoundly corrosive to the “marketplace of ideas” the spirit of the First Amendment is meant to uphold. A society in which people endure insults, harassment, or even economic and employment sanctions in response to differences of opinion is not a society in which one can enjoy a lively, vibrant exchange of many different ideas on a wide variety of subjects.
If my opponent respectfully argues for something I deem to be significantly more deleterious (such as, say, the inferiority of blacks) but not directly harmful, while remaining relatively powerless\without influence and arguing in genuine good faith, then I would respond by either just ignoring him (if I was short on time), or by firmly (and measuredly, but not necessarily politely or respectfully) counter-arguing against his ideas and demonstrating why they’re wrong. I would still refrain from harassing him, doxxing him, or calling for him to lose his job or boycott his business. Despite how strongly I disagree with his beliefs, he hasn’t moved on to directly threatening others with his speech, which in conjunction with the other three factors means he still deserves debate and counterarguments as a response, rather than bullying or “social pressure.” I would rather live in a world where bad ideas like his can be defeated by better ones without the use of force, whether it’s social, economic, or of course physical.
And if my opponent is ranting incoherently about how all jews/blacks/gays deserve to die (which could directly incite violence) while being either an employer or an employee who could drive people away from the business and sincerely meaning what he says, in that case I believe the use of economic force (at least, if he starts making threats physical force would be acceptable) in order to silence him, even if he’s exercising his right to free speech, is justified. Tell him to shut the hell up or tell his employer to fire him/boycott his business until he changes his tune.
I hope this makes my position a little clearer. To make it even more so, here are some IRL examples of how I’d respond to different statements with this thought process, starting with the one which inspired the posts from Scott: The Duck Dynasty guy.
Phil Robertson said some rather offensive things about gays and blacks. However, while he wasn’t respectful, he wasn’t vulgar in how he expressed himself, either. And while his beliefs may be dumb, he just believes gays are immoral and disgusting and blacks were “happy” under Jim Crow. Stupid, but he’s not directly calling for gays to be stoned or for Jim Crow to come back. And while he’s rich, he’s just an actor and nobody really takes him that seriously, so I wouldn’t say he has a notable deal of economic or social power. Maybe he sincerely believes what he said, but who cares? I think the most appropriate response to his statements is to call him out, tell him why he’s wrong, and maybe stop watching his show. I think calls for his death or demanding he be fired, while technically permissible by the letter of the First Amendment, do more harm to the open market of ideas than is justified by his statements. I think the situation ended well enough, though—he was suspended but got back on the air. On the other hand, as I’ve pondered, perhaps this means it was actually all just a stunt to get more ratings. 😮
Another example is Dr. Watson, the guy who discovered DNA but said some nasty things about black intelligence. He wasn’t being vulgar, his beliefs, though wrong, didn’t necessarily entail suppression of blacks, he was a famous scientist but didn’t have that much power over hiring (or driving people away from) his institution, and meant what he said, though he didn’t think about it too clearly. IMO the most reasonable and—dare I say it—graceful exercise of free speech in response to his would be to collectively chuckle, tell him why he’s wrong, and then go about our business, chalking up his rambling to having a bad day. He’s a world class scientist, but everyone puts a foot in their mouth sometimes. Or, according to Dr. Gates’ discussion with Watson, believes in stuff that’s problematic but not necessarily directly evil (racialism rather than racism, as he puts it). Calling for a world class scientist to lose his job, much less get harassed, for just having problematic beliefs, where there’s little evidence he can either hurt those below him or inconvenience those above him, once again strikes me as more harmful to the cause of free speech than the situation warrants or justifies.
Now, for a harsher example, is the Pax Dickinson silliness. For the purposes of argument let’s say his beliefs were wrong, incorrect, and socially deleterious. Full disclosure: I used to believe some of the same stuff he did. As I’ve mentioned before, I had some negative experiences with women that almost led me down that path, but while I managed to “see the life” and dig myself out of that ideological whole, I’m still happier being single. Unlike Pax, though, I make it a point of not being a huge drama queen about any of this. In Pax’s defense (step b), his silly ramblings were just sexist, but wouldn’t directly lead to any violence against women. However, he was being crude (step a), might have been just trolling for attention (step d), and most importantly, had a position of influence, though no economic power (step b—he was a CTO at Business Insider and might cost them subscribers if he was being public about his silliness). Thus, I consider it reasonable and appropriate for his employers to have exercised their rights as private actors and fired him. In this case, upholding the “spirit of the First amendment” isn’t worth the cost of monetary loss for his employer.
(Personally, if it was just me, I wouldn’t have fired him, but I would have given him a talking-to and asked him to post a public apology and remove the offensive Tweets. If I ever have any employees, they can say as much misogynistic/racist/whatever stuff they want, as long as they do it behind closed doors rather than on Twitter for the whole world to see. They gotta be discreet enough not to cost me any customers).
Finally, I’ll use an example of my own life. Not any of my exploits from my trolling days—those were pretty cut and dry. I deserved getting banned from the goofy communities I harassed, and as I’ve also said before, if I could do it all over again, I wouldn’t waste time on that kind of silliness. There’s far better stuff to do, IMO. No, this little event happened a couple of years after I left the trolling scene. Long story short, I made a doofy LiveJournal entry essentially saying the same things Pax did, except in the form of a longer essay rather than a bunch of tweets. I’ve repudiated those views, though, again, I’ve heard enough divorce horror stories to keep me single. Back then, though, I caught more flak than I ever had before (even as a troll); someone reposted my entry to a bunch of places, tons of people invaded my LJ (including Jedi and Star Trek RPers) before I made it private, and a lot of people were mad at me, even outside of my regular haunting grounds. Taken through my 1st Rule of Free Speech, I would say that reaction was somewhat unjustified, but in hindsight and with some self-criticism, I can say, not by that much. The entry in question wasn’t as overtly offensive as my troll posts were back in the day, but it was definitely poorly written; I regret publishing it before editing it. My argument was shoddy (again, editing is your friend) but wouldn’t really lead to any harm coming to anyone else. At that time, I had pretty much no influence or power anywhere (I was a mod at someone else’s forum, but not an admin, and nobody would either join or leave a forum based on anything a hermit like me said or did anyways). And I wasn’t going out of my way to offend people, if I was I would’ve posted that essay somewhere else rather than my personal LJ.
So, essentially, if I were one of the women offended by my LJ entry, taking all four factors into account, I would have concluded that an appropriate response to my misguided “free speech” would have been to either just ignore it entirely, or maybe just laugh at it and poke some fun at it. Getting Qui-Gon Jinn and Captain Kirk to keep an eye on my little blog struck me and still does as somewhat excessive and not particularly useful in maintaining a diverse and open fandom community. Still, as I said, it wasn’t THAT excessive, and, quite frankly, probably did me more good than bad. The people who got mad at me never really liked me in the first place and ever since then we’ve had almost no contact with each other. I’d say it’s worked out extremely well for all of us. Nobody’s given me any trouble in over 2 years, at least.
Despite all this, I’m willing to admit my “First Rule” may not be the greatest idea, ever, in the history of ideas about free speech. Maybe Scott or many of his colleagues would say there’s a lot of room for me to improve my thinking and philosophical rigor. Maybe some would disagree with my assessments of which speech can “directly” lead to violence, and perhaps others would ponder whether I need more or fewer than four factors, and the relative importance of each of those. Perhaps some might argue this heuristic for staying true to the “Spirit of the First” is too complex and pointless, anyways. I hope it’s given you some food for thought, though, and I hope it can earn at least some praise as an attempt to provide a bit more context and rigor, which the Rust Belt Philosopher asked for.
And if you disagree with me, I hope that you might test out my First Rule just once, examine my four factors, and conclude that the most rational and constructive response to my perhaps mistaken opinions is a counter-argument of your own…rather than, ah, “social consequences,” such as yelling at me or spamming my comment box with goatse. XD XD XD