Set off by the genuinely appalling theft of a huge anti-abortion sign (one of those signs with gross photos of allegedly abortion-age fetuses) by a feminist Professor at UC Santa Barbara, Freddie deBoer has a pair of posts arguing that the “social justice left” is abandoning free speech.
Although I don’t question Freddie’s report that “it is not at all unusual, for me, to encounter liberals and leftists who [...] do not believe that controversial speech (what they call hate speech) should be legally expressible,” I do wonder if the people Freddie hangs out with are a representative sample of lefties. As Corey Robin points out, if anything today’s left seems less likely to question the legal doctrine of free speech than (say) during the Reagan years, when the MacKinnon/Dworkin anti-porn legislation was a major issue. Where is today’s equivalent of Catherine MacKinnon?
Anyway, I’m not posting to argue with Freddie. Rather, I wanted to get down some thoughts about different types of threats to free speech.
First, we have Government Suppression of Free Speech. This includes (but isn’t limited to):
1) When governments directly outlaw certain speech content – for example, the German government outlawing Holocaust Denialism, or the US outlawing cigarette advertising on TV.
2) The government determining that some public areas are not open to protest, such as “free speech zones.”
3) Copyright laws and trademark laws.
4) The government using the law, or the bureaucracy, to punish people for their speech. Or even just threatening to do so, as Boston Mayor Thomas Menino did when he said “If [Chick-Fil-A] needs licenses in the city, it will be very difficult,” in response to Chick-Fil-A’s owner’s opposition to same-sex marriage. (Menino backed down from his position, thankfully.)
5) Laws against libel and slander.
6) Directly shutting down newspapers and other media outlets.
7) Arresting protestors.
It doesn’t take much imagination to imagine contexts for most of those forms of government suppression of free speech that almost anyone who isn’t an anarchist would say is legitimate. We can’t say that it’s always wrong to arrest a protestor; to be able to make that call, we’d want to know the fuller context (what was the protestor actually doing that got her arrested?).
Second, we have Social Suppression of Free Speech. This includes (but isn’t limited to):
1) Social sanctions for stating the “wrong” opinions – or so much fear of social sanctions that speech is “chilled.” When right-wingers complain that for a left-winger to use the term “bigot” or “racist” “shuts down speech,” I think this is what they mean.
2) Economic sanctions for stating the “wrong” opinions. Or, again, so much fear of economic sanctions (such as losing a job) that speech is “chilled.”
3) Protests that have the effect of shutting down opposing speech – for instance, if protestors in an audience yell so loud that it’s not possible to hear the speaker.1
4) Capitalistic suppression, in which the owners of capital – such as newspapers, blogs, auditoriums, tv networks, etc – decide not to publish certain views. Or, for that matter, when the owners of an auditorium have security remove the people protesting the speaker.
I think that, for most Americans, social and economic sanctions are probably the things that are actually most likely to be shutting us up on a day-to-day basis. And when people say they want a “culture of free speech,” I think what they mean is they want a culture in which social and economic sanctions for speech are rare, or at least proportionate.
I can’t imagine any possible policy approach to decreasing “social sanctions” in which the cure wouldn’t be worse than the disease. But I would favor legal protections for employees so that they don’t have to fear being fired for their off-work-hours political speech, unless that speech is somehow directly relevant to job performance.
- Ken White at Popehat had a great comment about this: “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.” [↩]