When is Free Speech Unfree?
This question does keep coming up. And up, and up. When is free speech free speech and when is it incitement to murder? (That’s only one version of the question, of course. It can be phrased other ways. When is free speech protected as such and when is it not because it is incitement to violence? That’s another version. There are more.)
Scott Jaschik has an article at Inside Higher Ed where the question seems to be in play, although it’s not absolutely clear whether the people involved in the matter actually phrased it that way. It’s also not clear whether that was avoidance or just lack of clarity – confusion, in short.
An adjunct English instructor at Warren Community College in New Jersey resigned a few days ago, after an email he sent to a student who was organizing a pro-war lecture set off a controversy.
Daly’s e-mail said that “real freedom will come when soldiers in Iraq turn their guns on their superiors and fight for just causes and for people’s needs.” He also wrote to the student, head of the campus chapter of Young America’s Foundation, that “I will continue to expose your right-wing, anti-people politics until groups like yours won’t dare show their face on a college campus.”
Stark enough. Does saying ‘real freedom will come when soldiers in Iraq turn their guns on their superiors’ constitute free speech – protected, protectable free speech – or does it constitute advocacy of murder? Or are the two the same? Ought advocacy of murder – in certain circumstances, or in any and all circumstances – to be considered free speech and protected as such? And does saying ‘until groups like yours won’t dare show their face’ constitute a threat, or is it clear that he means ‘dare’ in the sense of ‘for fear of shame and embarrassment’ rather than ‘for fear of being attacked’?
In interviews conducted as conservative groups organized a campaign to have him fired, Daly stood by the substance of his e-mail…But Daly said that since she had sent her e-mail from a personal account, and he had replied from a personal account, there was no reason for the college to be involved. He also said in an interview on Sunday that he was not advocating a literal revolt by soldiers, and that he would have replied with a different tone had he realized he was communicating with a student.
Enter mitigating circumstances. He thought he was sending a personal email. Casual conversation is subject to different norms from publication. On the other hand email to strangers perhaps falls somewhere between those two categories. Or perhaps not. Using threatening language to a stranger is different from using it to a friend; whether or not the threat applies to a third party also changes things; whether the more clearly threatening language applies to a distant third party while the more ambiguous language applies to a group that the stranger belongs to, also changes things. Complicated, isn’t it. As the president of WCC said.
Austin called the First Amendment “the most precious freedom all Americans share,” and said that he was “committed to working unceasingly” to protect the freedom of speech of students and faculty members at the college. But he said that he also had an obligation to enforce state laws and college policies “to ensure that all members of our college are free and encouraged to exercise their right to free speech without fear of intimidation or retaliation.”
There seems to be a real knot here, one that it’s hard to cut through. Daly seems to be in trouble (and hence to have resigned his job) merely for something he said in what he thought was a personal email. But the wording of his email was at least arguably somewhat intimidating, and intimidation is not a trivial matter. (Ask any civil rights worker or union organizer.) Threats and intimidation are where free speech law and practice and theory get very, very tricky.
The email sounds as if it was, at the very least, regrettable. I think the situation would be different if the email had been sent in an official capacity, but as it is I don’t think it really justifies the person losing their job.
The bit I would be most suspicious about is the criticism that encitement to murder is taking place. I mean, while the “real freedom…” passage can be taken as incitement (though one could also read it figuratively) I doubt that this is the real complaint. Because by that standard, proposing violent conflict against the rule of international law would also be incitement murder, and the advocacy of suspension of the Geneva convention an incitement to violence (and sometimes murder). But these last two examples don’t create such moral dillemas for us, because the victims are the “bad guys”, as opposed to Daly’s points where the subjects of violence are the “good guys”.
The actual incitement to violence and murder isn’t the substantive issue here, but rather the object of that violence. In that context, the questions relating to free speech become somewhat clearer.
A hard one. To me, freedom of speach is such a strong right that to limit it, the situation has to be close to shouting “fire” in a cinema. Incitement to violence must be a statement that has a good chance of producing a violent act.
Generalized remarks like this are, for me, just over on the protected side of the line. I consider them to be extemely bad behavior but not a dismissable offence.
Is there also a consideration to be brought into play about the position of the writer? Does someone in a position of responsibility have a duty to act – and write – responsibly?
I’m not sure that the claim that it was a personal e-mail makes a difference, either. Wouldn’t we call someone who professes one point of view professionally and another privately a hypocrite?
I think the fact that it was a personal email makes a difference – in practical terms rather than moral terms. But the practical difference amounts to a moral difference. Talking in an email to a stranger about turning guns on people is different from talking about it in a newspaper article, because it’s much less likely to lead to (or inspire, or encourage, or validate) actual killing.
Armando has a good point, I think.
1) The communication was not addressed to nor in any way expected to be received and acted on by a serving soldier on duty, which would seem to be required context for it to be incitement to murder.
Advocacy of murder? Yes but in the context of private political speech it is clearly rhetorical and not aimed at increasing the likelihood of murder. There are plenty of similar and worse examples, including wishing for the assassination of Chimpy W Shrub in the national media.
2) Staff vs private status? The nitwit was a staff member, and given that this was in context of a campus event there is no way to be taken on a private-citizen-only basis. Nevertheless, there is no claim he was acting or representing himself to be acting in that staff role.
3) Staff member resigned voluntarily. Seems a bit hypersensitive for a murder-advocating warrior of righteousness. Perhaps he realised he was being overdramatic, and should have had a more inclusive perspective on freedom of speech himself?
I don’t think there is a case for sacking, but there certainly is for ‘counselling’.
Maybe he thought he had f***ed his chances of tenure and might as well start again elsewhere.
Daft sod, basically. Of COURSE a nasty little neo-con (Bush-Youth)will take a loudmouthed naive Liberal to the cleaners over something so immature. He’s there to teach English fer chrissakes. Just goes to show really- there’s just too many blind fans of Chomsky out there…
“Does saying ‘real freedom will come when soldiers in Iraq turn their guns on their superiors’ constitute free speech – protected, protectable free speech – or does it constitute advocacy of murder?”
Perhaps I’m picking at nits, but isn’t this a truth claim, rather than an incitement to violence? Contrast with “Iraq will be fucked when the US leaves”, and “Iraq will be sorted when the US leaves”. How come truth claims that imply something good will come of some event are now encouraging that event?
“And does saying ‘until groups like yours won’t dare show their face’ constitute a threat, or is it clear that he means ‘dare’ in the sense of ‘for fear of shame and embarrassment’ rather than ‘for fear of being attacked’?”
Well since she says “I will continue to expose your right-wing, anti-people politics until…” it would seem that she is talking about “shame and embarrassment”, otherwise you’d think she’d be doing more than just exposing people’s politics.
Surely the only issue is over the professionalism of a teacher having a go at students by firing off rude emails.
“Perhaps I’m picking at nits, but isn’t this a truth claim, rather than an incitement to violence?”
Ah – I would say rather that it is a truth claim that functions as an incitement to violence. It’s rhetoric. (I’m sure there’s some technical term for that particular trope – a factual statement that is also a hortatory statement – but I have no idea what it is.) Picking at nits is fine, it’s impossible to inquire into rhetoric without picking at nits.
It could be that he was just making an impartial factual prediction – but that seems unlikely, don’t you think? Or don’t you.
“Well since she says “I will continue to expose your right-wing, anti-people politics until…” it would seem that she is talking about “shame and embarrassment”, otherwise you’d think she’d be doing more than just exposing people’s politics.”
I’m not sure. Yes, the first part of the sentence seems to mean just exposure, but the second part could mean more. The word ‘dare’ introduces an ambiguity – it could work as a threat that’s camouflaged as a non-threat. That is, the sentence provides ‘deniability’ – ‘I was just talking about exposure!’ – while at the same time sounding threatening to the recipient. That’s one of the things rhetoric can do – play both sides of the street. Deliver subtle messages that the sender can disclaim.
In other words, you’re right about the overt content, but I think you’re overlooking the hidden content – the subtext, if you like.
“Ah – I would say rather that it is a truth claim that functions as an incitement to violence.”
Now I might agree with you if we were talking about, say, an Islamic cleric in Iraq. But in what possible sense can it be considered that she was inciting violence in saying this to someone who would be both entirely unable and unwilling to do it?
“That is, the sentence provides ‘deniability’ – ‘I was just talking about exposure!’ – while at the same time sounding threatening to the recipient”
Possibly, or possibly not. But without any further evidence for intimidation through the threat of violence you don’t really have much to go on.
What gender is this Daly individual? I’ve been writing ‘she’, but it looks like it’s ‘he’ most of the time – not that it matters much, but it’s nice to be consistent.
Ah, I see, student is ‘she’, teacher is ‘he’. Sorted, got confused by the ambiguity in “Daly stood by the substance of his e-mail…But Daly said that since she had sent her e-mail from a personal account, and he had replied from a personal account”
Yeh, he. I had to disentangle that too, at the time.
Yes, you’re right. I withdraw that. I agree about non-incitement when it’s addressed to someone who can’t carry it out – and said as much in the actual post. I should have said something like ‘it’s a truth claim that could function as’ etc.
“But without any further evidence for intimidation through the threat of violence you don’t really have much to go on.”
No, no, I know. And I’m not trying to charge the guy – or get him fired, either. But I am expressing reservations (worries) about threatening language. I said that in the post too – I’m not sure that’s what he meant by ‘dare’, and don’t claim to be. But I think that word does tend to function as a mild form of intimidation.
It may indeed not be incitement in these circumstances, but one can ask why Daly would not repeat it in circumstances where it would be incitement. Would he not be forced into incitement by the logic of his love for what he terms “real freedom” ?