The Marshy Ground Between
And more again. It seems worth trying to figure all this out and get clear what we’re talking about (I think discussions about free speech tend to be surprisingly unclear). With clarity goes honesty, rather than the hypocrisy that cartoon-offended Muslims accuse defenders of ‘blasphemous’ cartoons of, in some ways with justice.
To repeat, or restate. I’m claiming that disputes like the ones over the prophet cartoons and over Irving and Holocaust denial are not simply a matter of Free Speech full stop, or of Free Speech unless there is imminent danger of physical harm. They’re also not a matter of either-or, all or nothing; not a matter of: either criminalization or unqualifed Right; it’s a matter of what lies between: of the broad marshy territory of oughts and shoulds, practice and custom, the tacit, the unwritten, the familiar, the accepted, codes of ethics, morality, implicit agreement. Also of vocational norms – which are very strong, often constraining (for good and ill), and enforceable by firing. Just ask Jayson Blair!
It’s important to keep all this in mind – because if we don’t we will just fall into the hypocrisy, double standard trap – of protecting this free speech but not that, and of failing or refusing to give any arguments for doing so. What it amounts to is that we do have (mostly tacit, implicit, customary, intuitive, so hidden and unnoticed and unaware) principles of selection.
One: consider: we don’t actually think newspapers or broadcasters have a ‘right’ to for instance replace the word ‘black’ with nigger, or ‘woman’ with bitch or cunt or ho, or ‘Arab’ with raghead. We don’t think people should be either arrested or imprisoned for doing so, and we don’t think they have a ‘right’ to do it. (That is, we think they have a narrowly-defined legal right, but not any other kind of right.) You don’t (well, maybe among shock jocks you do, but apart from that) hear people resoundingly defending that right. It’s a legal right, but in practice, it’s not a real right, because no one to the left of Fred Phelps would want to exercise it. Imagine Anderson Cooper or Andrew Marr getting a memo from the brass telling them to make such a vocabulary change. Imagine the New York Times or the Telegraph suddenly adopting such a practice – every article and comment full of whores and niggers and kikes and faggots and kikes and towelheads. What would we think? ‘They have a right to do that, and that is all there is to it, there is nothing more to be said’? I don’t think so!
Two: consider again: we also don’t think newspapers and broadcast media have a right to tell us a pack of lies in reporting the news – I don’t mean differences of interpretation, getting it wrong, selection, I mean gross blatant whoppers. Telling us China has invaded Taiwan, an earthquake has killed ten million people in Argentina, India has nuked Islamabad, Mugabe has resigned, the genocide in Darfur has ended – when none of them are true. We don’t necessarily think they should be arrested or imprisoned (though we may wonder, if the false reports do enough damage – retaliatory nuclear strikes, for instance) – but we don’t think they have a right to do that. In fact we think they have no right to do that, and we’d be outraged. We’d all be running around telling each other ‘They have no right to do that!’ I can hear us now.
These fences are perhaps invisible because they’re generally so well heeded. We don’t think about newspapers telling huge whoppers, because they don’t. (Well, except items like the National Enquirer, but that’s a different genre. Again, the convention is generally understood. Serious broadsheets don’t tell gross lies; tabloids need some caution.) But the fact that we’re not aware that we don’t think the Times has a ‘right’ to lie doesn’t mean we think it does have that right. (In fact the more reputation a newspaper has, the greater its [implicit, moral] obligation to tell the truth – because it’s what we expect, so it has the power to do more damage by lying, because we’ll believe the lies. Authority and reputation entail increased responsibility.)
So – the point about all these people who say ‘of course free speech, but‘ – is not that there never is any but, or that there never is any but except in cases of imminent danger – it is that they have the wrong but. There are buts and then there are buts, and there is no alternative to evaluating them on the merits. To judging each but, each exception, each ‘ought’, on the merits, on the substance, as opposed to waving the Free Speech flag and thinking that does the job. It doesn’t.
And by the way Holocaust denial is not the right retort to Motoons. That would be Mosestoons or Jesustoons. Holocaust denial is parallel to denying what happened in Gujarat, Bosnia, Chechnya.
Well, what I’m talking about with ‘free speech’ and ‘but’ is a lot more than just Motoons.
Just to be clear: It seems to me that when you say “free speech” you are talking about a legal right to freedom of expression, not a moral right. You are saying that there are circumstances where the legal right to free speech is overridden by other concerns (“buts”, “oughts”), that these concerns are not limited to cases of speech advocating immediate criminal conduct or causing imminent danger, and that each one of these circumstances should be judged on its individual merits. That the result of such a consideration would affect the legal rights of some individual to freedom of expression. I just want to get that clear. We are talking about people’s legal rights.
Now, first of all, you might want to consider an additional tax levy to pay for the bureaucracy that would be required to hear and decide these cases, for they would be many. Secondly, and even if you find a consistent way to limit the number of cases that would fall into such a description without stripping the concept of meaning, you would be creating a situation where the definition of allowed speech actions would be constantly changing, depending upon who was judging the merits of the case. This is something which legal systems typically try to avoid. And perhaps the worst thing about it is that it would create a situation in which every group with its own special interest would have the possibility to plead for special treatment, ready to cry “discrimination!” if their “but” was not deemed a deserving “but”.
This seems like the sort of approach that has given “liberal” such a bad name in the US (and increasingly in the UK), by associating it with interest groups seeking special treatment. Also — and in this context it is a plus — it illustrates the difficulty of trying to micro-manage society, with trying to provide equality of results for people instead of being satisfied with equality of opportunity, another characteristic of “the liberal left” which has not endeared it to others.
If you treat freedom of expression as an absolute right — tempered only by the criminalisation of expression which will cause imminent danger that can not be countered with further expression but must be met with physical action — you have a clear demarcation which creates a level playing field and which is wholly predictable by the people that come under the law. The freedom thus allowed will make for a much more creative, energetic and, well, free society of people who say what they mean and who understand what others are thinking and feeling.
Juan, for heaven’s sake. When I said right in the second paragraph –
“They’re also not a matter of either-or, all or nothing; not a matter of: either criminalization or unqualifed Right; it’s a matter of what lies between: of the broad marshy territory of oughts and shoulds, practice and custom, the tacit, the unwritten, the familiar, the accepted, codes of ethics, morality, implicit agreement. Also of vocational norms – which are very strong, often constraining (for good and ill), and enforceable by firing. Just ask Jayson Blair!”
how can you possibly say
“you are talking about a legal right to freedom of expression, not a moral right.” and “I just want to get that clear. We are talking about people’s legal rights.”
when obviously that’s not what I’m talking about? How could I have made that any more clear?
Well, “the point about all these people who say ‘of course free speech, but'” is that they are talking about legal rights, about what somebody else should be allowed to do, or more to the point what they should not be allowed to do.
They are talking about constraining other people’s behaviour, other people’s speech — not their own. Freedom of expression only matters when it’s speech you don’t agree with. And if they don’t agree with you they are not going to be moved by your view of their moral rights. They are only going to be moved by coercion and that means law.
Hmm. Actually they’re not, most of them. That’s part of what was so interesting (and repulsive) about the whole cartoon mess. (I think it’s repulsive because I think they have the wrong ‘but’.) They’re acknowledging the legal right, and using moral, political, communal etc pressure to say ‘but don’t use it’. Which, I’m arguing, or speculating, if you have a better ‘but’ is not necessarily so terrible. I think the newspaper example illustrates that. I certainly don’t want newspapers to start to refer to everyone except white men by epithets; and since I don’t want them to, I can’t (it seems to me) claim there is no ‘but’ about ‘responsible’ free speech that I can agree with. There are such buts – which we don’t notice because the newspapers don’t test them by talking about niggers and bitches.
It looked to me more like pressure than persuasion. In the UK I saw them as creating public pressure around the government’s interpretation of and possible prosecution under the “incitement to hatred” legislation. If that legislation didn’t exist, if there had been no real danger of being dragged into court (which, regardless of the verdict, would have served as a focal point for the “embarrassment” of the newspaper), I think the newspapers would have been more likely to publish them, and the “free speech but” crowd would have found little traction. For example, had the original publication been in the US, where freedom of expression is probably better protected than anywhere else, and had the US been the focus of the demonstrations and destruction, I think the US press would have published the cartoons. In fact, they would have been all over the place, and there would not have been a “free speech issue”.
I don’t actually want to encourage people to create public pressure about moral “buts” to legal free speech. That seems like the thin end of a wedge of censorship. I would encourage people to ignore offensive expressions and argue against ideas they don’t agree with. If some newspaper uses words like those, or cartoons they don’t like, people won’t buy the newspaper. That’s natural in a capitalist economy and it works.
Yup, it looked to me more like pressure than persuasion too, which is why I called it pressure and not persuasion.
Also yup about the relationship to the religious hatred law. Pretty much an identical kind of pressure. I’m not so sure about the US though. There was some of the same pressure here (see Hitchens on the State Department’s ‘free speech but’ statement). And by golly the papers didn’t publish the dang cartoons – so I think it’s pretty hard to argue that the US did better. Interesting hypothetical. Hmm. I don’t know, I doubt it. Messing with religion just isn’t done here these days. But I don’t know – and hope you’re right.
No, I don’t necessarily want to encourage people to create public pressure about moral “buts” either – I’m just pointing out that they already exist, and that most of us in fact are glad they do.
“If some newspaper uses words like those, or cartoons they don’t like, people won’t buy the newspaper.”
Well – that’s what I’m saying. That’s the same thing. Internalized, implicit, tacit pressure or self-censorship, so that the buyers won’t go elsewhere. Good when it rules out epithets, bad when it rules out dissing religion. A mingled yarn, in short.
OK. I see what you’re saying. When you started out talking about free speech as a right and then free speech as a good, and a good which trumped or did not trump other goods, I got the impression you were talking about all of those things as rights. I would have found it less confusing had you been much more explicit about what you saw as rights (and rights to me means legal rights in this context unless you are very specific like with in adjective) when you were talking about social/political pressure and when you were talking about people’s values. This business of not buying a newspaper because you are uncomfortable with its language, or its cartoons, is about your values, not about anybody’s rights. The newspaper owner keeps his right to publish what he wants, he just won’t be able to sell it. But it’s his decision.
But if somebody starts creating public pressure, as the “free press but” statements did, that gets into the territory of rights because they’re becoming political actors and even threatening in legal territory by working in the public space. At least the people about the cartoons were operating that way. I didn’t hear talk about boycotting newspapers if they published the cartoons. I heard talk about how they better not publish them because it was wrong for them to publish them because people would get upset. That’s also in the area of a prior restraint.
There was also mention of the fact that an awful lot of neighbourhood news agents in a lot of the UK are owned and run by Muslims, and they might refuse to sell newspapers that ran the cartoons. Now that is scary! Even though I suppose there is nothing illegal about it.
I bet that talk of Pakistani newsagents is a post-facto rationalisation. Name ONE exec who said before the decision not to publish, “Damn, I can’t offend my own newsagent in case he sends me broke!”
Great Britain knows how to break strikes, and putting newsboys and vending machines on the streets would quickly bring those newsagents back into the fold. They manage to bite their tongues and sell tit magazines and even… tabloids.
“I would have found it less confusing had you been much more explicit”
Oh well so would I! I’ve been figuring out what I mean as I go, here. I’ve been as explicit as I was able to be, I think. Lack of explicitness was result of fog, mostly, I think. (Well, plus the ever-present problem that we know what we mean and don’t always realized that we haven’t made it clear to anyone else.) That’s part of why I’m droning on about all this – I think there’s a lot of accidental lack of explicitness around, and if we point it out, things might get clearer.