Why Are You so Silent?
Hmm. There’s an odd statement in here – in the AAUP’s statement on the Ward Churchill fuss. Well, that’s not surprising, I guess. Pretty much whenever people start talking about freedom of speech and academic freedom, odd statements get made. It seems to be a subject that inspires odd statements – no doubt because there are so many competing goods at issue, and because people don’t always notice the competitive aspect, so they’ll cheerfully make contradictory statements from one sentence to the next.
Needless to say, the AAUP thinks Churchill should not be fired for writing the ‘little Eichmanns’ article, no matter how livid the right-wing pundits get. Needless to say, I agree with them, however much I may mock Churchill’s Billy Jack routine. But there are some oddities, all the same.
One of them is utterly routine and predictable, but it’s one that always makes me wonder a good deal.
Freedom of faculty members to express views, however unpopular or distasteful, is an essential condition of an institution of higher learning that is truly free. We deplore threats of violence heaped upon Professor Churchill, and we reject the notion that some viewpoints are so offensive or disturbing that the academic community should not allow them to be heard and debated.
The thing that always bothers me about statements like that is that it leaves out a real problem – thus making the free speech position seem a lot easier than it really is. Because there are views and viewpoints that are not just unpopular or distasteful or offensive or disturbing – they are dangerous or harmful. That’s where a lot of the disagreement takes place, obviously. That’s the issue that’s central to the disagreement over the incitement to religious hatred law in the UK – whether such a law can, in principle and in fact, distinguish between speech that is unpopular or distasteful or offensive or disturbing, and speech that is dangerous – or (more complicated still) potentially dangerous. And surely the idea of danger is behind laws against incitement to racial hatred. The point is not that such speech is offensive, it’s that it has the potential to get people killed. And yet – free speech statements so seldom talk about the subject in those terms. That seems to me to be an evasive way of proceeding. I think I think the religious hatred law is a bad idea, but I also think that it’s quite true that it is possible to incite hatred and violence by means of speech about religion. Competing goods, you see. I think there are competing goods here (as there usually are, after all), as opposed to all good versus all bad. Statements endorsing free speech that pretend the worst speech can do is offend or disturb people are stacking the deck. (Which is not, just in case it’s not clear, to say that I think Churchill’s article is dangerous; I don’t; the point is a general one. I’m not making a ‘don’t you know there’s a war on?’ argument against Churchill.)
In fact the tension is visible right inside the statement. ‘We deplore threats of violence heaped upon Professor Churchill.’ Yup. But threats of violence are speech too. But they go beyond unpopular or distasteful or offensive or disturbing. I think that should have been mentioned somewhere in that statement, if only as a parenthetical stipulation. ‘Freedom of faculty members to express views, however unpopular or distasteful (provided they fall short of threats or incitement),’ perhaps. There’s a large snake-swallowing-tail element in all this, because people often use their freedom of speech to make threats against other people in order to shut them up. As we saw in Birmingham a few weeks ago. Well that’s how free speech is, isn’t it – there’s a huge de facto element. The powerful have more free speech than the powerless; those who own newspapers and radio stations have more free speech than those who don’t; the rich who can buy advertising and bribe politicians have more than the poor who can’t; and so on. ‘Sure, honey, you have a constitutional right to say whatever you like, and if you say it I’m going to punch you in the face. Go ahead.’
I don’t think the free speech problem is all that ticklish. Clearly, speech should be only leglly sanctionable, when it is proximate directly contributes to a situation of unlawful violence, (e.g. causing a riot.) Similarly, “academic freedom” is not unbounded, since it is tied to some basic standard, however minimal, of competence. Holocaust denial, for example, is out of bounds because, whatever the moral outrage it may occasion, nonetheless anyone who would advocate for it thereby demonstrates such a level of incomptence or sheer lunacy as to not possibly play a part in rational discourse. The Ward Churchill case, however, is well within bounds of those parameters, and though he is to be reprobated within the “game” of free speech and academic freedom for his distinctive lack of moral intelligence and political judgment, insignificant mediocrity though he is,- (and there is no crime in that),- there is no need to cite the exceptions to the rule, since what is involved is a more or less orchestrated attempt on the part of powerful currents in our society to stiffle not just the “right”, but the need for dissent. Though, obscure as he is, Churchill virtually invited such a reaction, and though something of his screed could be defended at just one remove, -(that the 9/11 atrocity involved blowback from violent U.S. policies abroad can be readily demonstrated from a series of data points of U.S. involvement in Afghanistan, which, of course, implies no endorsement of the aims and ideas of the perpetrators),- the main and only real reason to defend him is to defend the rest of us, that is, to defend the right and the need for vigorous public discourse, dissident voices included, as the very hallmark of a democratic republic, against powerful interest that would want to curtail it, to facilitate policies that may not pass the test of rational legitimacy.
I would not support the U.K law on religious criticism, any more than I would support the French headscarf ban,- which is irrelevant, since I am a member of neither political society. But I might suggest that they represent ham-handed attempts by politicians to deal with a ticklish issue: how to separate mainstream, if alienated, currents of domestic Muslim opinion, from expressions and activities that pose a real and legally sanctionable threat of Al Quaeda-style jihadi terrorism. We in the U.S.A., qua the putative average American, seem to have very little sense of how our policies, as self-appointed leader of the “free” world, impact the perceived interests of the rest of the world, including our quondam European allies. How would we like it, if the latter attacked Mexico, ostensibly in order to shape the formation of Mexican opinion? (Well, they did try that once, but we were too preoccupied with our own local brouhaha.)
Also, obviously threats of personal violence are legally sanctionable, which is why they are usually anonymous, unless the perpetrators are even too dumb for that. But the inequity and maldistribution of resources for access to public speech strikes me as overall a greater defect than the danger of violence. It is one of the things that allows for the orchestration of ideological witch hunts to be routine operating procedure.
“Clearly, speech should be only leglly sanctionable, when it is proximate directly contributes to a situation of unlawful violence, (e.g. causing a riot.)”
Well, but is that clear? ‘should’ according to whom? And to what? According to the First Amendment, yes, probably, but everywhere else too?
That’s just the area where I have a problem: where I see competing goods with no clear answer (not an unusual situation in life, of course). Because in situations (which are not rare) where some groups are already – say – subordinate, seen as inferior, and widely reviled, then surely some kinds of speech and writing, even though they don’t immediately prompt anyone to go out and perpetrate violence, can over time (and fairly short time at that) cause the reviled group(s) to be more reviled and then pretty soon subject to violence, expulsion, rape, killing…
It’s not as if that kind of thing has never happened.
So…speech and writing can do harm, as well as merely causing offence. Unless I’m wrong. Maybe I am wrong, but I have a hard time seeing how. (On this, I mean; I find it quite easy overall!)
So in that sort of area, the matter does seem to me to be really quite tricky. And I don’t think we can even think about it clearly if the free speech side just pretends it out of existence.
(Of course, this kind of thing is why Germany, for instance, has laws against some kinds of hate speech that the US doesn’t have. So someone somewhere seems to find it a tricky issue! Unless it’s not tricky just because it’s one way in Germany and another in the US – but surely that doesn’t really answer the question, it just hands you a plane ticket instead.)
You’re treading close to Stanley Fish’ “there no such thing as free speech”, since speech is always an “act” and has consequences, or, at least, implications. But, at some point, matters must be handed off to political processes, which no theory can guarantee, and which is what I think you are talking about in terms of “competing goods”, and, though political processes can go horribly wrong,- (which I obviously think is the case in this country, though perhaps more from the disengagement of many than from the engagement of some),- the whole point of the protection accorded to public speech is to countervail against the probability of political processes going wrong. As for disadvantaged groups, they are precisely the ones who are most in need of the means to “fight” back. I don’t think you want to be going PC here. PC is the stupidest political strategy ever invented: if you can’t change the reality, just change the labeling, which only succeeds in legitimating what it ostensibly opposes by means of opening itself to ridicule.
That said, if Ward Churchill is to be the model of political engagement, then we are in deeper trouble that even I think we are.
“I don’t think the free speech problem is all that ticklish. Clearly, speech should be only leglly sanctionable, when it is proximate directly contributes to a situation of unlawful violence, (e.g. causing a riot.)”
Don’t you want a disclaimer about intention in there somewhere? Causality isn’t the be all and end all.
Of course, the idea of proximate causality lets the racist messages of groups like the BNP off the hook, because they aren’t proximate causes, rather they set a tone – like much of the anti-Semitism of the 1930s.
Yeah, I know. I suppose I think Fish has a point.
“But, at some point, matters must be handed off to political processes, which no theory can guarantee”
Yeah, that’s all I’m saying. I’m not asking for a guarantee, just saying that the issues ought to be stated more honestly. It always gets up my nose when people pretend that the worst thing speech can be is merely offensive.
Whenever I puzzle over these competing goods, I go re-read (for the umpteenth time) Chapter 2 of J.S. Mill’s On Liberty. It doesn’t help me resolve the problems, necessarily, but it makes me feel better about coming down on the good of free speech over any paternalistic desire to protect the citizenry from harmful speech.
Note that I don’t use scare quotes around ‘harmful’ above. I don’t deny that some particular speech acts and some whole categories of speech (racism and Holocaust denial are classic examples) can and do cause harm. But there are two counter-balancing concerns. First, there is the importance of Mill’s consideration that refuting even the most pernicious falsehood helps us understand the basis for our considered opinions, the whole ‘living truths’ vs. ‘dead dogmas’ argument. Second, I consider the costs of silencing speech: There is no doubt that there are some things which “ought not be said” because of the harms they cause, but ensuring that such things are not said requires that we DO something – e.g. legislation and enforcement. And then I contemplate giving the government the power to judge what speech is harmful and to enforce that judgment… and then I am affirmed in my hard-core free speech absolutism.
In short, while there may be competing goods, but there are also competing harms. In my judgment, the harm of the various measures which might be used to silence harmful speech are pretty much inevitably going to be worse than any harms brought about by speech itself.
And I think you agree, OB, which is why you are (along with all right-thinking persons) so dead-set against this religious hate speech nonsense in the UK…
Yes, I read On Liberty often too. Still – I think it’s a bit gratuitously pejorative to call the worry that some forms of speech can end up causing very real, material, physical harm, ‘paternalistic.’ I don’t want to protect anyone from anything; I’m far too savage. I’m just pointing out what I take to be the truth of the matter – that speech can be more than merely offensive.
But lack of scare quotes does much to offset resort to scare word! (Then again, scare word does much to offset lack of scare quotes. Oh dear oh dear – how shall we decide on a verdict?)
I agree about the gummint. Especially considering what kind of people make up the gummint these days. Do I want Holy Rollers suppressing speech? Not a lot, no. And they always are Holy Rollers in one way or another. No, I’m not saying the gummint should control speech – I’m just saying there’s a problem, a difficulty.
And I know, about Mill and the argument that good ideas need to rassle with bad ones. But Mill wrote that book before Hitler and before the age of mass media. And even so he had critics who pointed out that he was sort of skipping over the ways speech could do harm.
I definitely agree about the competing harms. But “the harm of the various measures which might be used to silence harmful speech are pretty much inevitably going to be worse than any harms brought about by speech itself” – hmm. Suppose (it’s a big suppose) someone had been able to jam all Rwandan radio stations for a few months at just the right time. Do you think that harm would have outweighed the harms brought about by the unjammed Radio Mille Collines? I have a hard time seeing how that could be possible.
So I don’t entirely agree – though I don’t know what to do with my non-agreement. I do know what you mean, but I don’t entirely agree.
Hmm. Jamming Rwandan radio stations? If that’s your example of silencing speech, I think you read both my comments and Mill far too broadly. Mill clearly outlines his argument in terms of the exchange of opinions, however odious. But he allows that some expressions of opinion are very much more than that: Mill starts out chapter three by discussing the difference between calling corn dealers robbers of the poor in a newspaper editorial and doing so before an angry mob in front of a corn dealer’s home (or something to that effect). Incitement to riot is surely a less serious offense than organizing and encouraging widespread murder by broadcast radio, and Mill’s argument allows that speech to be silenced (or at least punished after the fact, which is supposed to have a silencing effect when written into law). Don’t read more into my free speech commitment than is there.
And no, it isn’t always clear when speech becomes something more, a kind of deliberate action. After all, any public expression of opinion can be taken as trying to persuade someone to do something. But Mill’s analysis suggests, and I agree, that when the actions don’t follow as a pretty direct consequence of the speech acts in question, the harms of silencing generally outweigh the risks. More importantly, I think, we can prosecute on the basis of the HARMS rather than focusing on the SPEECH.
Calls for murder, incitement to riot, the all-too-often-cited shouting “Fire!” in a theatre, those can be dealt with by the harms themselves. If you directly call for someone’s death and they are subsequently killed by someone who you communicated with, you can be successfully prosecuted for conspiracy to commit murder, or at least as an accessory.: After all, doesn’t make more sense to go after the architects of the Rwandan genocide than it does to go after, say, radio station managers who allowed their resources (under who knows what kind of coercion) to be used to help organize and direct the violence? If there is concrete harm, we can and should go after someone involved in directly advocating the harm. To cite an example that probably has more emotional resonance than historic accuracy: Henry II was an accessory to Beckett’s murder because he KNEW what would follow from uttering words to the effect of “Won’t someone rid me of this troublesom priest?” in front of certain people would accomplish.
And I’d blather on, but now is the time in my day when I teach 20 year olds about the categorical imperative.
*sigh*
“however tortuous the negotiation may be.”
Sure, that’s one answer. And may be the only, or the best answer. I don’t claim to know. It’s just that things can go awfully wrong during the ‘tortuous’ phase. That’s why I always froth at the mouth when people complacently say that the truth always wins in the end. Even apart from the fact that No it doesn’t, there is also the question, what end? For the people rubbed out in the meantime, that is the end; there isn’t any consoling ‘end’ when all this works out for the best.
“But Mill’s analysis suggests, and I agree, that when the actions don’t follow as a pretty direct consequence of the speech acts in question, the harms of silencing generally outweigh the risks.”
I mostly agree too. But of course that leaves a lot of wiggle-room. We can all disagree over what ‘pretty direct consequence’ means, for example.
“After all, doesn’t make more sense to go after the architects of the Rwandan genocide than it does to go after, say, radio station managers”
Sure – although in some cases those were the same people, I think. Radio Mille Collines was a party political station, a partisan Hutu station – if I remember correctly. And I’ve linked to at least one story in News about some radio guy who has been prosecuted in Rwanda – but he was not a manager but rather a propagandist of some sort. A Julius Streicher-equivalent.
Haven’t read Mills (will endeavour to do so ASAP) but I think I like G.’s idea of prosecuting on the basis of harm done rather than the content of the speech itself. Problem is of course that this would always be after the fact, but then again, governments and states have rather voracious appetites, and I’m afraid that once they’re given the powers to sanction speech _as such_ in the most extreme cases, they’ll end up wanting more.
Recent borderline case is that of the The Hague rappers who spread a “diss” about Hirsi Ali on the internet. A pretty disgusting text, for which they were prosecuted (on the basis of the text containing death threats). In this particular case, I do not believe that they should have been prosecuted since I don’t think that either the rappers themselves were in any way serious about killing aforementioned politician, or that anyone listening to their song would be convinced into doing so. But what makes the issue difficult here is that at that time Hirsi Ali was dealing with more than enough death threats of perhaps a more serious nature.
I don’t think a distinction between “speech” and “actions” is going to get anywhere. Any speech is by necessity an action – to inform, order, question or cajole the interlocutor.
M.
Yes – I linked to a story on the rappers in News a couple of weeks ago, along with other items on Hirsi Ali. Now, I had no problem with their prosecution (mind you, I haven’t heard their act, and you [Merlijn] probably have). I don’t think death threats should be protected.
You have a treat in store, Merlijn, reading Mill. He’s the best.