The problem of the preferred first speaker

More on the Harper’s Letter. From PrawfsBlog:

The authors claim to “uphold the value of robust and even caustic counter-speech from all quarters,” but to fear that “it is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought.” Ken White (Popehat to those on Twitter and KCRWsees the letter as drawing an untenable (or at least elusive) distinction between “silencing” and “more/responsive/critical” counter-speech. White labels this the “problem of the preferred first speaker,” the “tendency to impose norms of civility, openness, productiveness, and dialogue-encouraging on a RESPONSE to expression that we do not impose on the expression itself.” In other words, the original speaker is free to say what she wants however she wants; the response must listen to, engage with, and respond to that speech. “Shut up” is not acceptable counter-speech.

That’s interesting; I hadn’t thought of it before. Lawyers can be very good at that.

Both situations create a puzzle . We do not want people to lose their livelihoods for their speech, nor do we want speakers chased off campus. But we also should not hamstring one side of the debate–to paraphrase Justice Scalia, we should not allow the original speaker “to fight freestyle,” while requiring counter-speakers “to follow Marquis of Queensberry rules.” I do not know the right answer or correct balance either to the recent online issues or to campus speech (the latter will not be an issue for awhile, unfortunately). But this letter does not provide it.

What I think is that it has to do with social media: it’s only recently(ish) that people have had to deal with hundreds or thousands of readers/listeners shouting at them all at once, as opposed to envelopes dropping decorously through the slot in the door or the phone ringing a little more often than usual.

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