No in Between?

More on free speech and the discussion with Norm, who has said more on the subject.

If the law does not prohibit people from doing something, then legally – and assuming no restraints created by voluntary contracts etc – they have the right to do that thing. It is what is sometimes called a ‘liberty right’, as opposed to a ‘claim right’…If (where) Holocaust denial is not a criminal offence, consequently, Irving and others have a liberty right to say, to write and to publish that the Holocaust did not happen or that it has been exaggerated.

Sure. I’ve stipulated that more than once – though without knowing the term ‘liberty right’, which is useful. But on the other hand, that still leaves out what I’ve been wondering about, which is the fact that Irving did more than just write and publish that the Holocaust did not happen or that it has been exaggerated – he also falsified the evidence – and according to Richard Evans (who spent 18 months with two research assistants looking into the matter), he did so very extensively. I don’t even know if Irving in fact has a liberty right to do that or not, but I think and assume he does. I don’t think it is actually against the law to falsify evidence in scholarly or would-be scholarly books. But doing so can probably get one in trouble in certain legal contexts – a libel trial being one. (I think there are some relevant differences between US and UK law here – whether or not it’s libelous to express an opinion that someone is dishonest, wicked, an exploiter, a purveyor of unhealthy food…Let’s not get into that, or we’ll be here all month.) But either way – whether Irving has a liberty right to falsify evidence or not – I think the fact that that is what he did is a major part of the issue, and should be included in discussions of it.

One might concede, of course, that this is (wherever it is) the legal state of affairs, and go on to argue that it’s a morally bad one: the law should be changed. But as Ophelia herself has repeatedly said that she’s not arguing for criminalization, that can’t be her view.

Eh? It can’t? Yes it can, surely! That colon there – I dispute that colon. I dispute the colon between ‘it’s a morally bad one’ and ‘the law should be changed’. Because we don’t think everything that’s morally bad should be against the law. Do we? Have I missed the boat here? Have I been spending too long on planet OB and missing what the rest of the world thinks? I could have sworn it was common knowledge that there are lots of things that are morally bad that nevertheless should not be agin the law. Rudeness, meanness, selfishness, egotism, lack of consideration – we think those are morally bad but not police matters – don’t we?

If she thinks Holocaust-denial shouldn’t be a criminal offence, then it follows that, according to her, Holocaust deniers should have liberty rights to say, to write and to publish that the Holocaust did not happen or that it has been exaggerated.

Sure. Again, I’ve said as much – saying ‘legal right’ for ‘liberty right’. In other words, I see that my agreeing (without much enthusiasm) that Holocaust-denial shouldn’t be a criminal offence forces me to agree that deniers should have rights, in the thinnest possible sense of rights, to write and to publish that the Holocaust did not happen or that it has been exaggerated. But, also again, what about rights to falsify the evidence? Are we including falsification of evidence in this liberty right? I don’t know. I’m not sure what I think about that. (I don’t think falsified evidence should be taught as genuine evidence in state schools, I can say that much.) But I think in order to discuss it we need to include it. We need to mention it.

In the next bit I think Norm misrepresents what I’m saying a little (not intentionally, of course). He quotes something I said but starts after the part where I talk about falsification, so that it looks as if I’m saying publishers should shut Irving up, full stop, when in fact I’m saying publishers should refuse to publish falsifications.

He says my attempt to talk about rights other than legal rights (or liberty rights) won’t do the job.

None of the points Ophelia makes by way of trying to establish some conceptual ground in between something’s being a criminal offence and its being a right succeed in doing so…But to disapprove of something, think it wrong, decline actively to protect it is perfectly compatible with still holding it to be a right.

A legal (or liberty) right, yes – but any kind of right? Is a legal right the only kind there is? Isn’t there a pretty common ordinary language usage in which a right is – pretty much whatever we think it is? For instance when we shout at each other ‘You have no right to talk to me that way!’ Or when we earnestly tell each other ‘My boss had no right to make me work Saturday on such short notice.’ Or when we darkly mutter that oil companies have no right to you know the rest. Come on, sure there is, I didn’t just make that up. People say things like that all the time. They don’t think they’re citing case law!

In a subsequent post, Ophelia brings forward in support of her argument that we hold the press and broadcast media to certain standards that restrain them from hate speech, abusive and foul language, and deliberate lying. I don’t think the example is to the point.

No, but it wasn’t meant to be to the same point; it was meant to be to a different point. That post was more relevant to the Motoons debate than the Irving debate. I’m just all over the map, that’s what I am.

We agree on the substance, Norm and I do, but there are some wrinkles in the language that need ironing out.

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