The Contested Boundaries of Freedom of Speech

The general theme of this post is limitations on freedom of speech.  What limitations are there on freedom of speech?  What limitations should there be?  How should these be implemented, and by whom?  What are the greatest threats to freedom of speech?  Because freedom of speech is so important, I think it is worthwhile to try to consider these questions outside the usual context in which they are encountered – at the point where someone feels that freedom of speech has been infringed, and complains about it – and consider them in a somewhat broader context.

This post is by no means comprehensive.  I could probably write an entire book on this topic, but in this case I’ve tried to be succinct and keep it to a manageable 3000 words or so.

Accepted Limitations on Free Speech

Freedom of speech is an important part of the political and cultural fabric of the US and the Western world in general.  The Enlightenment saw a movement to push freedom of speech into our institutions – political, religious, cultural, and educational – and create a safe space for people to discuss and debate issues of personal and public importance.  A wealth of scientific and moral progress was facilitated by having the protections afforded by the adoption of Enlightenment values.  That was hundreds of years ago, but we have largely upheld – or even expanded – the tradition of free speech in Western society, to the point where many simply take it for granted.

However, there have always been reasonable limitations on freedom of speech.  Legally, my understanding is that I cannot use “free speech” to do any of the following activities (not an exhaustive list):

  • plan or solicit a crime or act of terror
  • tarnish the reputation of a private person with lies (libel or slander)
  • reveal or transmit state secrets
  • incite violence
  • deceive someone into giving me their money or property (e.g. fraud)

In addition to those legal limitations, there are also social limitations.  Social limitations – which you might call “norms” – are enforced socially, and breaking them might result in a rebuke from a friend or family member, or in being shunned, or in losing access to some social privileges.  Socially, I am not permitted use my speech to do any of the following:

  • insult someone’s family, religion, country, culture, etc.
  • use racial or other slurs
  • discuss taboo topics (which topics are taboo vary based on the context)
  • lie (some lies may be socially acceptable in some circumstances, but generally, there is a social penalty for being known as dishonest)
  • reveal or transmit personal secrets
  • bully someone

In addition there are institutional limitations on freedom of speech.  In general, institutions may place restrictions on their members about what kinds of things they can and cannot say in order to protect the reputation and privacy of the institution and its members.  For example, many companies will fire you if you publicly express support for Nazism and enough people notice that the company starts to get complaints.  But also, if you work for a corporation, you can’t reveal trade secrets; if you work for a hospital, you can’t reveal patient information; etc.

So while we talk about freedom of speech as being absolute and inviolable, in fact there is a tapestry of limitations to our speech coming from our government, society, jobs, and other organizations and groups which we belong to.  Most of these limitations are accepted and even welcomed by most people in society, who actively take part in policing each other’s speech to ensure that it follows legal, social, and institutional rules and norms.

For example, as a teacher, I actively made sure that my students did not insult each others’ families, religions, countries, or cultures; didn’t use racial or other slurs; didn’t discuss topics which were not appropriate for school; and didn’t bully anyone.  As a parent, I teach my children what they can and can’t say, and what they should and shouldn’t say.  And as a member of society, when someone violates the social speech norms that I consider important, I register my disapproval.  To an extent, we all do things like this.

Given that freedom of speech has limitations, and that in many cases the establishment and enforcement of these limitations is based on a political or social consensus, it is sometimes necessary to reevaluate these limitations and ensure that they’re serving our needs as a society.  Right now, I am aware of two major areas where the limitations on free speech are being contested, and unfortunately, the discourse around these areas seems to be less than optimal.  These areas are misinformation and cancel culture.

Misinformation

If I want to go on the internet and discourage people from taking vaccines – not just covid vaccines, but any vaccines – I am allowed to do it.  I am allowed to lie and make up stories.  I am allowed to knowingly claim, falsely, that vaccines cause autism and infertility, that Bill Gates is injecting us with 5G chips, that mRNA vaccines will edit your DNA and turn you into a mutant, and that the entire coronavirus pandemic was deliberately created by Big Pharma in order to sell vaccines which they know are harmful.

Note that slander, libel, and fraud are all illegal, because they involve a) lying and b) harm.  Anti-vaccine misinformation fits these criteria as well.  It’s illegal to lie about me in a way that tarnishes my reputation because that would harm me, but to lie about a vaccine in a way that tarnishes the vaccine’s reputation and potentially harms millions of people is perfectly legal?  This makes no sense.  We’ve already decided that there is no compelling public interest in allowing people to tell harmful lies.  The principle is already enshrined in our laws.  The only difference is that the problem of medical misinformation is so new that the law hasn’t caught up with it yet.

Faecbook, YouTube, and other social media organizations have done their parts, in their own ad hoc and nontransparent ways, to fight harmful medical misinformation during the pandemic.  But fundamentally this issue is too important to be left to the whims of private corporations.  It’s a matter of public interest and the government therefore needs to make rules which are fair, reasonable, transparent, and subject to interpretation by open and transparent courts rather than whatever AI or committee Zuckerberg decides to put in charge of content moderation.

This is not just about limiting speech, but also protecting it.  What if Facebook is overzealous in limiting speech?  At one point Facebook and YouTube were censoring lab leak posts.  The lab leak theory was not a lie – it may or may not be true, but it is a plausible working theory which many scientists endorse.  The lab leak theory is not medically harmful – there’s some concern that it “may” fuel anti-Asian sentiment, but I think we can agree that social media companies have no business banning speech on the basis that it “may” inflame racism.  Understanding whether the virus came from nature or a lab is a vital question in the public interest, and it is exactly the kind of question which can only be answered satisfactorily through open scientific debate and inquiry.  In other words, it’s exactly the kind of case for which Enlightenment free speech values are so valuable.

There’s a legitimate question of who should decide what theories are legitimate and what theories are obvious harmful lies.  We need to differentiate between anti-vax lies (like the 5G conspiracy theory) and anti-vax truths (like the AZ-blood clot connection).  We need to differentiate between clear and substantial harm (like anti-vax speech fueling actual measles outbreaks) and vague, attenuated, or hypothetical harm (like the lab leak theory causing racism).  My best answer is that when it comes to questions in the public interest, duly elected and accountable representatives of the people should be making these determinations rather than private companies.  Not only would this help align speech standards with the public interest, it would also ensure fairness in the sense that everyone would know in advance what the standards are.

Governments need to step in and make laws about harmful medical misinformation – after a period of public debate and deliberation, of course – and issue guidelines for media companies to comply with them.

Cancel Culture

Many people consider cancel culture to be a threat to freedom of speech.  Cancel culture has the potential to stifle debate about important questions in the public interest.  However, I am going to argue that this concern is largely overblown.  In most cases, cancel culture is just the application of existing speech norms, but according to modern, progressive understandings of what those norms entail.

Recall that earlier I mentioned I would face social penalties if I insulted someone’s family, religion, culture, country, etc.  This is not controversial.  However, what counts as an insult is open to interpretation, as is what is covered under “etc.”, as is how serious an insult has to be to merit penalties, as is what counts as a proportional response.

I’m going to try to choose an example here that is not too taboo or controversial but should illustrate the point well enough.  There is a widespread sentiment in the US that rap music is not music.  At the time of writing, the debate.org page on the question “is rap music real music” indicates that 61% of responses believe that rap is not real music.  One might conclude from the very existence of the debate.org page that this is, in fact, a legitimate debatable question, and that the range of acceptable opinions on the question is “yes, maybe, no”, and that it is an important question in the public interest to delineate the boundaries of “real music.”

And yet.  I can’t help but notice that claiming that rap is not music is deeply insulting to Black culture in the US.  In fact, even debating whether or not rap is music would seem to be insulting to Black culture.  There is no White genre of music that has its very status as music questioned, analyzed, and publicly interrogated.  I would point to the debate over whether rap music is real music as evidence in favor of the claim that systemic racism and white supremacist ideology are still mainstream and deeply embedded in US culture.  It is a racist question and a racist debate.  I would go so far as to argue that it is a proxy for the question “are Black people as valuable as White people”, which is a question that you used to be able to “debate” in the US before they “canceled” the three-fifths compromise.  But let’s not get too radical here.  I don’t want to make anyone uncomfortable.

Let’s put aside the question of whether the musicality of rap is a legitimate debate topic and just agree that it’s insulting to Black culture to claim that rap isn’t real music.  We’ve already noted that insulting someone’s culture is a type of speech that might subject one to social sanctions.  So the issue should now be fairly clear: to some approximation, 61% of Americans are willing to publicly insult Black culture.  And because the belief is so widespread, they also expect to be able to get away with it.  I think a White person would be very surprised if they said “rap music isn’t music” and someone else replied “that’s racist, please don’t say things like that”, and if it happened on a public forum they might complain about wokeness or censorship or cancel culture.

But remember, if someone insults your culture, you’re supposed to be able to tell them to cut it out, and society is supposed to be able to have your back.  It’s always been that way.  Progressives aren’t attacking free speech here – they’re just pointing out that a question that you might think is innocuous is actually insulting.  That’s why progressives frequently focus on uplifting the voices of marginalized groups – because people in the majority sometimes don’t know that their “opinion” or their “debate topic” is insulting and hurtful.  And yes, every White person involved in that “debate” is crowding out a Black voice that could settle the debate very quickly by pointing out exactly how racist and dehumanizing it is.

A lot of the “debates” that people are getting “canceled” for having are like this one.  Should gay couples be allowed to adopt children?  Should Black people be allowed to protest?  Should trans people be allowed into bathrooms?  Are women naturally bad at math and computer stuff?  Here’s a rule of thumb: if one of the two potential positions in your “debate” is dehumanizing and insulting, it’s not a good topic for debate.  Discussion of the proposition should instead focus on uncovering the underlying bigotry in order to make it clear why the framing of the debate is unacceptable.

There are questions related to all of these marginalized groups that are sensitive and truly debatable, and people are indeed having those debates.  There’s the question of whether trans women should compete with cis women in combat sports like boxing or MMA.  There’s the question of whether the racial achievement gap in academics in the US is a result of genes, or the environment, or something else.  There’s the question of whether trans kids should have access to irreversible medical procedures, and under what circumstances [edit: I endorse this correction to my framing of this issue].  There’s the question of whether and when abortion should be legal.

But note that none of these debates are actually stifled by cancel culture.  You can find a diversity of opinions on these topics in the general public, and among scholars, and in the populations directly affected by the outcome of the debates.  Sure, you need to be sensitive to the nuances of the conversation to avoid offending people in some cases, as with any sensitive topics.  And yes, sometimes progressives can be too quick to take offense, or take offense on behalf of groups that are not actually offended, because there are overzealous people in any group, and because among any group there will be a distribution of people with different tolerances for different types of insults, and because people make mistakes.  But I think a fair assessment of what people are actually getting canceled for reveals that in most cases the cancelee was violating one or more of the pre-established social norms about speech – they were insulting or dehumanizing someone’s culture or race or gender, or they were using a slur, or they were bullying a person or group, or they were violating some well-known and reasonable social taboo – and a lot of times they expected to get away with it.

So it comes down to this: I think that the reaction to cancel culture is largely from people who are losing the ability to freely express their prejudices, biases, and internalized bigotry.  And I think this is a good thing.  If you are about to make a comment about Black people or trans people or women or some other group, and you have to stop and think about it for a moment because you don’t want to get caught saying something offensive – that’s just social pressure working the way it’s supposed to.  You’re supposed to think before you speak.  You’re supposed to avoid saying hurtful things.  Even if you think you have a harsh truth, you’re supposed to exercise tact and restraint.  And if, for whatever reason, you absolutely can’t conceal your contempt for whatever group – like Rowling can’t conceal her contempt for trans people – then yes, you deserve a time-out while you think about how you might interact civilly with others in a polite society.

In some sense, this isn’t even really a free speech issue at all.  No one’s ever been free to insult any and every group they felt like insulting, with full social impunity.  What’s happened is simply that in many circles, marginalized groups have been added to the roster of groups that you aren’t allowed to insult.

Authoritarianism and Conservatism

Freedom of speech is indeed under threat in the world.  Increasingly, journalists and political dissidents can be reached across borders by authoritarian regimes.  Last month, Belarus diverted a plane carrying a dissident journalist, forcing it to land in Minsk and abducting the journalist and his girlfriend.  Here in Georgia, there was the kidnapping of Afgan Mukhtarli, an Azeri journalist, from Tbilisi.  Mukhtarli ended up in an Azeri prison.  Authoritarian countries like China can even kidnap and imprison family members of external dissidents.  Russia has shown a willingness to poison dissidents even while they reside abroad.

Authoritarian regimes are also infamous for disinformation and propaganda campaigns.  Russia’s interference in US elections and China’s use of economic influence to stifle criticism of its human rights abuses are two prime examples – examples which actually influence all of our lives and which shape the public discourse to a disturbing extent.  Disinformation and propaganda can undermine Western free speech norms if we respond to them with too much censorship, which makes it all the more important to continue to have a robust public dialogue about the boundaries of freedom of speech and about the role of our institutions in policing those boundaries.

Meanwhile, the conservative impulse to ban “dangerous” ideas is as strong as ever, with the American Library Association’s “Top 10 Most Challenged Books” list still, as ever, dominated by books which conservatives object to for political or “moral” reasons (like LGBTQ content), and with laws or bills in 25 states by conservatives attempting to ban teachers from teaching about racism.  Putin recently cited Black Lives Matter protests as a justification for his own authoritarianism, claiming that jailing dissidents was a small price to pay for preventing race riots like we have in the US.  That’s the same authoritarian impulse – it’s a small step from banning anti-racist books to banning anti-racist protests.

Here in Georgia, we’ve seen a public ongoing debate about whether Georgia’s LGBTQ+ community should be allowed to express “provocative” ideas – ideas such as “we exist” and “please stop killing us” – and what the appropriate response to those ideas is from society and its institutions.  The comments I keep hearing from anti-LGBTQ+ speakers is that everyone should have freedom of speech – but some people shouldn’t use it.

I shouldn’t be too dismissive of these comments.  There’s an underlying logic to them which is the same as the logic that I’ve used in this post.  To wit: conservatives claim that promoting sin is an insult to Christianity and Georgian culture and traditions, and I’ve argued that free speech doesn’t cover insults.  Conservatives claim that gay propaganda is harmful to children and families, and I’ve argued that free speech doesn’t cover harm or incitement to harm.  If I’m not in favor of universal unlimited freedom of speech, then what basis do I have for rejecting conservative calls to censor Pride?  Aren’t I just being a complete hypocrite, picking and choosing freedom of speech when it’s my ideological allies’ speech at stake but opposing it for my ideological enemies?

My response to that is: you can’t just claim that anything you don’t like is “insulting” or “harmful” and then veto all speech about it.  You have to actually establish the truth of the claim.  Like I said above, vague or theoretical harms (like “lab leak theory causes racism”) aren’t enough to censor lab leak speech – but kids dying of measles should be enough to censor anti-vax misinformation.  So if you’re claiming that something is harmful enough to trigger censorship, you need to prove it – and not just to yourself, or your church, or a mob, but to a legitimate, democratic institution entrusted with making determinations of truth, like a court of law or a legislative body.  And the burden of proof should be high.  I think you’ll find it very difficult to prove that a queer person just existing is an insult to Christianity, or that waving a rainbow flag is going to harm children.  Therefore, censorship of Pride is not justifiable – a conclusion which is supported by an ever-growing international consensus.

Liberal free speech just has an exploit built in, which is that it needs to have exceptions to prevent harmful speech, but these exceptions can always be taken advantage of by bad faith actors who want to censor opposing views by calling them harmful.  There’s no way around this – no principle which can let us escape it.  We simply need to be discerning enough to correctly evaluate which speech is actually harmful and which speech is simply challenging to the status quo.  Authoritarians love this exploit because it fits in with their general strategy of ginning up fear of an out-group and using that fear to trample all over civil liberties.  But the fact is, it usually isn’t very difficult to separate real victims from authoritarians playing the victim as a pretext to censor free thought.

I also mentioned earlier that there are social penalties for using freedom of speech to talk about taboo topics.  Sexuality is a taboo topic in Georgian culture and so it is not unexpected that the Pride demonstrators will face social penalties – they may face criticism from family, friends, clergy, politicians, and other important and/or prominent members of society.  This is all part of a normal social dialogue, and this type of dialogue takes place in every society from both the left and the right.  The difference between “cancel culture” and other “woke” critics of the right and the right-wing attempts in Georgia to stifle Pride is that the right-wingers in Georgia reliably escalate the situation to physical violence.  They did it again yesterday, throwing stones, bottles, and eggs at attendees of a documentary about Pride 2019.  You don’t see lefties showing up at J.K. Rowling’s book signings to throw rocks at her fans.

The Enlightenment concept of enshrining freedom of speech in law and custom came about as a response to authoritarian political and religious figures who quashed dissent through violence and censored any ideas that threatened their power or the worldview that supported it.  To this day, that remains the greatest challenge for those of us who believe in the free exchange of ideas.  The threat isn’t the people who want us to be careful how we talk about marginalized groups, or who want to avoid debate topics that dehumanize people.  The threat is the dictators in the world who are globalizing their illiberalism at an alarming rate and the people in our own societies who look upon those dictators with envy as they bring force and violence to bear upon those whose speech they find distasteful.

I personally support freedom of speech – which should be obvious from this blog as a whole – but supporting something means understanding not just its value but also its limitations and weaknesses.  My understanding of freedom of speech is always evolving in response to new challenges, and I hope from this post it’s relatively clear where that understanding stands today.

This entry was posted in Civics, Politics. Bookmark the permalink.

3 Responses to The Contested Boundaries of Freedom of Speech

  1. nkrishnaswami says:

    Great post! One nit I’d raise is that “There’s the question of whether trans kids should have access to irreversible medical procedures, and under what circumstances” is not quite accurate. Instead, I think that’s the question transphobic groups like the GOP and the gender critical crowd are posing, not trans kids, their families, or their doctors. For them, the question is how to best support kids, trans or not, who are questioning their gender, and to support them in ways that will foster present happiness and future resilience.

    For prepubescent youth, medical care consists of helping their families support and affirm them, and providing support around understanding and exploring social transition.

    For the next age set, medical interventions begin, pharmacotherapy with puberty blockers. To a first and probably second approximation, these are reversible by simply ceasing administering them. There have been equivocal findings that they can reduce bone density (appears to be false) and peak height (shrug), whereas there are unequivocal findings that going through the “wrong” puberty can induce dysphoria that sharply increases risk of suicide in trans youth, in addition to increasing lifetime costs/risks from surgery to mitigate the unwanted body changes. [Trying to focus on reversibility considerations, but they blend into the quality of life question.]

    The usual hormone therapies come next, plus testosterone blockers like spironolactone for young women who did not get puberty blockers. These cause pubertal body changes you’d expect, but they’re initially slightly more reversible than the changes needed for, say, trans people who start receiving treatment further into adulthood.

    Standards of care permit chest reconstruction surgery for young trans men who did not receive puberty blockers after one year on testosterone, but these are actually performed vanishingly rarely.

    Like

    • nkrishnaswami says:

      Related, I just saw this thread where the poster critiques the irreversibility focus: https://twitter.com/krysmalcolmbelc/status/1412444092383076357?s=19

      Like

      • panoptical says:

        Wait, but isn’t the fact that having a child is an irreversible decision the whole reason why people are opposed to teen pregnancy? Pregnancy would seem to be the wrong comparison to use if you’re trying to argue that irreversibility is not important.

        Also I could give numerous significant other examples. Routine infant circumcision. The death penalty. Tattoos and piercings. There are irreversibility arguments against all of these things. It’s clearly a genuine concern that people hold across any number of issues, even if it’s misplaced or not applicable in the case of trans kids.

        Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s