Monday, October 23, 2017

Morning Thoughts on Freedom of Speech

I woke up this morning thinking about freedom of speech, and what it means. Yes, that is kinda weird. But it's a topic that's been on my mind a lot lately, because it seems to me that some folks on both sides of the political spectrum have become alarmingly hostile to freedom of speech and freedom of thought. For some on the left, liberalism now seems to be about policing what people say and think. That doesn't seem very liberal to me. While I think many hateful, racist, and sexist expressions are truly unacceptable, I also think these folks take things too far. This is also the group that is often in the news for shouting down, and occasionally violently disrupting, right wing speakers on campuses. I can't agree with that, either, for reasons I'll get to below.

Lest any conservatives read that paragraph and cheer, well, y'all ain't all innocent, either. Consider the people I ran into this weekend in front of the Colorado state capitol. I happened to see a small gathering of about 40 people as I walked by, so I stopped to hear what they were saying, as I always do if I have time. This was a mixed bag of right-wing groups. There was a group called Bikers Against Radical Islam, several people waving Trump banners, a few camo clad or cowboy-hat-wearing sagebrush militia types, some people from the south waving confederate flags, and even one African-American guy who apparently calls himself "The Black Rebel". Many of the people there were wearing body armor and helmets, and I imagine most of them were armed.

Anyway, one of the neo-confederate types got up and spoke, and he said that his freedom of speech is under attack. But here's the strange thing: almost in the same breath, he went on to say that there's no place in this country for socialists, or for people who disrespect the flag (presumably by sitting during the national anthem). A guy in front of me cheered. His jacket said, "Stomp my flag and I'll stomp your ass".

Clearly, these guys don't believe in freedom for all types of speech or expression. They don't believe socialists should have it, apparently, and they don't believe people who they see as disrespecting the flag should have it. (I can't resist pointing out that they were waving confederate flags, which seems fairly disrespectful of the American flag to me, and they were displaying American flags in ways that violate the flag code in all kinds of ways. I didn't point that out. I didn't have body armor on.)

As the speaker with the microphone attacked socialists and anthem-sitters, the Bikers Against Radical Islam cheered, too. Now, I don't know their exact thoughts, and I'm against radical, violent forms of Islam, too. (I don't like any form of fundamentalism.) But I've heard many people with similar beliefs (often in biker garb, for some reason) say that they think Islam--even moderate Islam--shouldn't get First Amendment protection, because "Islam is an ideology, not a religion". That makes no sense at all, of course, but the point is that if these people believe something like that, then they don't believe in free speech or thought for Muslims, either. Polls also show that many people don't believe in First Amendment protections for atheists, though nobody at this gathering mentioned them.

So these folks don't believe in freedom of speech for others. But that doesn't necessarily mean that their freedom of speech isn't under attack. Is it under attack? I don't want to dismiss the idea without giving it a fair hearing, even if I dislike this guy's worldview. One thing is clear. His First Amendment rights are intact. After all, he made his speech into a microphone on the steps of the state capitol, and the state troopers nearby were keeping the peace, not arresting him.

But the First Amendment only protects you from being punished by the government for what you say. It doesn't protect you from social consequences. It doesn't keep people from disagreeing with you---freedom of speech is a double-edged sword that way. It also doesn't keep people from shunning or ridiculing you.

However. What I woke up realizing this morning is that freedom of speech and the First Amendment aren't identical things. If fear of social consequences keeps you from speaking your mind, even if the First Amendment doesn't, do you really have freedom of speech? I'm not sure you do. The First Amendment (probably) won't protect you from losing your job for what you say. But if you do lose your job, you don't really have freedom of speech, even if you have First Amendment protection from the government. And sometimes that's OK, because freedom of speech isn't an absolute right. I have no problem with somebody who shows up on the news marching with a swastika losing their job. But at the same time, society should be wary of shutting down free speech through social or financial pressure, because the free exchange of ideas is important.

But why is it important? Some on the right and left may be asking that right now, and it's a fair question. There are a few commonly-cited reasons, but I only want to mention a couple. First is the "marketplace of ideas" argument. The classic early expression of this idea is by Supreme Court justice Oliver Wendell Holmes, who said, "when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment."

Soaring words, but I don't fully agree with them. I think the marketplace of ideas is important, but for a different reason. Holmes seemed to believe that popular acceptance of an idea is a good test for truth. I don't think it is--lots of terrible ideas are extremely popular. While it seems like hubris for me to question the great Holmes, I think the reason the marketplace of ideas is important is that without it, good ideas will never see the light of day in the first place (whether they win popular acceptance or not). If Galileo had been thrown in a dungeon and his books burned, the truth about the solar system would not have emerged, perhaps for decades. And he was speaking the truth, even if the masses had never accepted it. Even if--God forbid-- today's flat earthers come to dominate popular thought, Galileo was right.

So, the free exchange of ideas is important, even if those ideas don't win popular acceptance. But what about truly awful, hateful ideas? Does hate speech deserve a place in the marketplace of ideas? If bad ideas often gain popular acceptance, isn't that an argument against having ideas like Nazism in the marketplace at all? Should the emerging strands of American Nazism we saw in Charlottesville see the light of day at all? Why not just shut that down, and declare that it's unacceptable in a decent society; that such a poisonous product has no place in the marketplace of ideas? Should it even be cast outside of the protection of the First Amendment, and be declared illegal, as it has been in many other countries?

Maybe. But that makes me nervous, too. For one thing, who gets to say what counts as hate speech? What if we declared hate speech illegal, and then in a few years radical theocratic Christians gained enough political power to start prosecuting people who criticized them, using hate speech laws? Can you imagine that happening? I can. What truly counts as hate is not an easy thing to pin down, and though this may get me in trouble with other liberals, I don't think everything that gets called hate speech really is. Let's go back to that neo-confederate dude speaking on the state capitol steps. He was holding a shield with a confederate flag on it, and he was saying it's a symbol of history, not hate. Then he pointed to the Black Rebel in the audience, and said, "He's here with us. He knows we don't hate him."

And I don't think they do hate him; at least not most of them. I do think the confederate flag is an ugly symbol of a hideous time, and not something to be celebrated. I think waving it is incredibly insensitive, but I think somebody could actually wave it while not hating African-Americans. Does the guy speaking actually have hate in his heart? I don't know. Some people that wave that flag do. I imagine some people in that audience actually do hate blacks (and Muslims, and atheists, and socialists, etc.) and some don't. I didn't see any obvious white supremacists there. I've learned to recognize white supremacist symbols, and I see them fairly regularly--usually as tattoos on ex-convicts--but I didn't spot any there. Maybe I just missed them.

In any case, I think some people truly think that flag is a harmless expression of heritage. I disagree that it's harmless, but I do believe some people who wave it don't actually hate African-Americans. And some wave it who do. It's an ugly symbol, either way, but should it be suppressed? What about when it clearly is a symbol of hate--when it's carried by someone with an SS tattoo on their neck, for example? Should it be illegal then?

Even if it really is hate, and even if it has no place in the marketplace of ideas, there is another argument that it shouldn't be made illegal. That's the "safety valve" idea of freedom of speech. The idea here is that a society needs to give even hateful ideas an expression, so that people don't go underground with them, where they will fester and bubble up and surprise us later.

Recent history shows how this can happen. When you try to suppress an idea, you don't kill it. You'll likely just make the person who holds it believe it even more strongly, and start thinking of themselves as an oppressed martyr. The suppressed idea then gets whispered in living rooms (I've been stuck in those living rooms) and circulated in underground magazines and websites. Then, people who think those ideas have disappeared are in for a very unpleasant surprise when they return later.

Whether an idea is truly hateful, or simply conservative and therefore distasteful to liberals, something I think liberals need to consider more is that any attempt to control people usually results in a backlash. Conservatives especially hate being told what to do, and they extra-especially hate being told what to do by liberals. If we liberals think we can tell them what they're allowed to say and think, and they'll say, "Oh, OK", we're delusional. We may succeed in shushing them for a while, but they will resent it, and they will start looking for revenge. The election of Trump can be seen in many ways, but one thing it clearly was is an act of rebellion against "bossy liberal elitists". It was a backlash, and liberals (including me) should have seen it coming.

Don't get me wrong. And if you're a liberal, I'm not saying liberals are responsible for people voting for Trump. We aren't the ones who checked that box on the ballot. But we have to learn that trying to control the way people think and speak usually causes a backlash, and that can contribute to things we really, really don't want happening. Like having a nightmare like Donald Trump as president.

You may say that people shouldn't lash back like that. Maybe they shouldn't, but that doesn't matter. What matters is that they do. We can't control how they react. All we can do is try to engage with them in a way that doesn't make things worse.

And both liberals and conservatives need to be careful that they don't forget the value of freedom of speech and thought. They--or rather, we, as Americans--need to remember that freedom of speech isn't just freedom for people you agree with. As Noam Chomsky once said, "If we don't believe in freedom of expression for people we despise, we don't believe in it at all." We need to remember that freedom of speech is not identical with the First Amendment. It can be suppressed without touching the First Amendment. Does that mean all speech should be socially acceptable? Of course not. But it does mean the free exchange of ideas is a vital part of an open, healthy, democratic society, and whether we are liberals, conservatives, or moderates, we forget that at our peril.

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