Author: Ophelia Benson

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.

Good, someone else besides Richard Dawkins and PZ and me who thinks science and religion are not compatible.

At an August 2005 City College of New York conference featuring a panel of Nobel Laureates, one scientist created a stir by arguing that belief in God is incompatible with being a good scientist and is “damaging to the well-being of the human race.”…Hauptman: The only significant negative reaction came from Cornelia Dean, a reporter from The New York Times. I was later told by several of the other Nobel Laureates that they agreed with me, but for reasons of their own, they just did not respond…[O]bviously this view is unpopular in this overly religious society. People who are outspoken about it are more than just regarded as cranky, they are deeply disliked…I spoke out because of this frustration I have only lately begun to feel about the religiosity in our society.

In other words the pressure of public opinion and social conformity silences a lot of people. I think it is really necessary to resist that pressure and that trend. That’s why I keep yapping about it – I’m applying social pressure from the other direction. (Not that that’s much use, with the NY Times doing its bit for the wrong side.)

The interviewer asks if he thinks there is a relationship between being a good scientist and being a religious skeptic.

What are religions based on? They are not based on evidence but on faith. On the other hand, a good scientist insists that, before one assents to a claim, there must be good evidence for that claim…I think we would be better off if scientists were more open about their lack of belief in God.

So do I. I’ll tell you who doesn’t, though, and that’s Steve Fuller. He would accuse Hauptman of ‘demonizing’.

The contributors to this volume consist of some veterans of the Science Wars over the past fifteen years, including the editor, Gerald Holton, and Paul Gross. Some pieces demonize the quite different senses of “fundamentalism” on offer in contemporary Christianity, Islam, and Hinduism – each of which supposedly threatens the future of science.

Gosh, why would anyone think Christian, Islamic or Hindu fundamentalism would threaten the future of science? There’s no possible reason, therefore those horrid blood-spattered veterans of the ‘Science Wars’ have to resort to demonization. Some people will stop at nothing!

While it is relatively harmless to insist that mastery of a scientific specialty requires training in certain techniques, it is more problematic (pace Kuhn) to insist that all such specialists share the same disciplinary narrative – and still more problematic to require that they pledge allegiance to the same philosophical world-view, say, what the US National Academy of Sciences calls “methodological naturalism.” It makes for bad philosophy, bad science, and bad politics. Yet, we seem to be sliding down this slippery slope, which in the past has led to loyalty oaths and in the future could lead to the genetic profiling of people as unfit for scientific endeavors because of their propensity to belief in, say, the supernatural.

‘Disciplinary narrative’ – right. It’s just a story. And methodological naturalism is a ‘philosophical world-view’ coercively forced on all aspiring scientists. That’s a line that the defense (the ID side) tried to push at the Kitzmiller trial, the one where Steve Fuller covered himself with glory by helping his side to lose the case (by giving his ‘expert’ testimony that ID is indeed religion, when the defense was trying to claim that it wasn’t – boy, I bet they were sorry they’d invited him to the party). Barbara Forrest wouldn’t play.

Q. And methodological naturalism is a convention that’s imposed upon scientific inquiry, is it not?

A. Forrest: No, it’s not a convention that is imposed upon scientific inquiry. Methodological naturalism is a methodology. It’s a way of addressing scientific questions. It reflects the practice of science that has been successfully established over a period of centuries. It’s not imposed upon science. It reflects the successful practice of science.

So now Fuller is setting the record straight, now that there’s no pesky judge to interfere.

Perhaps the volume’s strongest suit is that it does not feature arguments to the following effect:…(b) That the research and educational agendas of democratic societies should be turned over to scientific specialists, by virtue of their superior knowledge, so to prevent society from egregious error…To this reviewer, the absence of (b)-style arguments is the surest sign that the contributors, despite their uniformly establishmentarian scientific sympathies, are still republicans – and not authoritarians. It will be interesting to see whether a successor volume still holds fast to this ideal, since some contributors seem to be chomping at the bit to grant authorized scientists unilateral control over the science curriculum.

How dare they. How dare they want to grant ‘authorized’ (what does that silly dig mean?) scientists ‘unilateral’ (what does that mean?) control over the science curriculum? How dare they not want to include lots of those unfairly ‘demonized’ fundamentalists along with lots of clued-in sociologists of science and lots of, um, baseball players? How dare they not want to hand control over the science curriculum over to The People at large, to do with it as they will? Is this a democracy, or is it not? It is a democracy. Therefore all curricula should be under the control of unauthorized democratic unauthoritarian non-specialists, because that’s democratic and the other thing isn’t. Scientific specialists who have (ew, ew, ew) ‘superior’ knowledge (can’t you just see them, those bastards, sitting around their labs in their horrible white coats fawning on each other for having so much ew superior knowledge and specialistism?) and establishmentarian sympathies are bad, bad, bad people who don’t belong in a democracy, they should all be locked up in missile silos or something, we hates ’em.

Forrest’s effectiveness was reflected in the presiding judge’s interpretation of the US Constitution’s separation of Church and State doctrine in Puritanical rather than Whitmanesque terms: He went beyond ruling that a religiously inspired viewpoint should not dominate the public school curriculum to pronouncing that no such viewpoint whatsoever should ever be introduced into scientific matters. Why science, as opposed to other subjects in the curriculum, should be treated so preciously remained unaddressed. However, it would make sense if a certain self-consciously non-theological conception of science were treated as a secular religion of a civic republican polity, as Dewey seemed to wish for the United States.

Oh, gawd, what a pile of steaming ordure. What a horrible, sly, insinuating, eelish way of deploying rhetoric instead of argument he has. How annoying he is. How I wish he would give it all up and become a church warden instead.

And more again. It seems worth trying to figure all this out and get clear what we’re talking about (I think discussions about free speech tend to be surprisingly unclear). With clarity goes honesty, rather than the hypocrisy that cartoon-offended Muslims accuse defenders of ‘blasphemous’ cartoons of, in some ways with justice.

To repeat, or restate. I’m claiming that disputes like the ones over the prophet cartoons and over Irving and Holocaust denial are not simply a matter of Free Speech full stop, or of Free Speech unless there is imminent danger of physical harm. They’re also not a matter of either-or, all or nothing; not a matter of: either criminalization or unqualifed Right; it’s a matter of what lies between: of the broad marshy territory of oughts and shoulds, practice and custom, the tacit, the unwritten, the familiar, the accepted, codes of ethics, morality, implicit agreement. Also of vocational norms – which are very strong, often constraining (for good and ill), and enforceable by firing. Just ask Jayson Blair!

It’s important to keep all this in mind – because if we don’t we will just fall into the hypocrisy, double standard trap – of protecting this free speech but not that, and of failing or refusing to give any arguments for doing so. What it amounts to is that we do have (mostly tacit, implicit, customary, intuitive, so hidden and unnoticed and unaware) principles of selection.

One: consider: we don’t actually think newspapers or broadcasters have a ‘right’ to for instance replace the word ‘black’ with nigger, or ‘woman’ with bitch or cunt or ho, or ‘Arab’ with raghead. We don’t think people should be either arrested or imprisoned for doing so, and we don’t think they have a ‘right’ to do it. (That is, we think they have a narrowly-defined legal right, but not any other kind of right.) You don’t (well, maybe among shock jocks you do, but apart from that) hear people resoundingly defending that right. It’s a legal right, but in practice, it’s not a real right, because no one to the left of Fred Phelps would want to exercise it. Imagine Anderson Cooper or Andrew Marr getting a memo from the brass telling them to make such a vocabulary change. Imagine the New York Times or the Telegraph suddenly adopting such a practice – every article and comment full of whores and niggers and kikes and faggots and kikes and towelheads. What would we think? ‘They have a right to do that, and that is all there is to it, there is nothing more to be said’? I don’t think so!

Two: consider again: we also don’t think newspapers and broadcast media have a right to tell us a pack of lies in reporting the news – I don’t mean differences of interpretation, getting it wrong, selection, I mean gross blatant whoppers. Telling us China has invaded Taiwan, an earthquake has killed ten million people in Argentina, India has nuked Islamabad, Mugabe has resigned, the genocide in Darfur has ended – when none of them are true. We don’t necessarily think they should be arrested or imprisoned (though we may wonder, if the false reports do enough damage – retaliatory nuclear strikes, for instance) – but we don’t think they have a right to do that. In fact we think they have no right to do that, and we’d be outraged. We’d all be running around telling each other ‘They have no right to do that!’ I can hear us now.

These fences are perhaps invisible because they’re generally so well heeded. We don’t think about newspapers telling huge whoppers, because they don’t. (Well, except items like the National Enquirer, but that’s a different genre. Again, the convention is generally understood. Serious broadsheets don’t tell gross lies; tabloids need some caution.) But the fact that we’re not aware that we don’t think the Times has a ‘right’ to lie doesn’t mean we think it does have that right. (In fact the more reputation a newspaper has, the greater its [implicit, moral] obligation to tell the truth – because it’s what we expect, so it has the power to do more damage by lying, because we’ll believe the lies. Authority and reputation entail increased responsibility.)

So – the point about all these people who say ‘of course free speech, but‘ – is not that there never is any but, or that there never is any but except in cases of imminent danger – it is that they have the wrong but. There are buts and then there are buts, and there is no alternative to evaluating them on the merits. To judging each but, each exception, each ‘ought’, on the merits, on the substance, as opposed to waving the Free Speech flag and thinking that does the job. It doesn’t.

And by the way Holocaust denial is not the right retort to Motoons. That would be Mosestoons or Jesustoons. Holocaust denial is parallel to denying what happened in Gujarat, Bosnia, Chechnya.

Another thought or two on free speech and lying.

Part of what I think I disagree with is Norm’s implication that there are only two possibilities, protection of lying as free speech or criminalization of it.

Now, even though Ophelia puts the point interrogatively and not as a conclusion, one can only assume she does so to leave open the possibility that falsehood, lying and such shouldn’t be protected under norms of free speech, and therefore may in certain circumstances be criminalized.

I’m not sure that ‘therefore’ is a therefore. I’m not sure that failure or refusal to protect X translates to a belief that X should or may be criminalized. It seems to me it can fall well short of that. Are we (logically, or morally, or both) obliged to protect everything we don’t think should be a crime? Surely not. Surely there’s a whole mess of things, a whole choppy sea of them, that we disapprove of and think wrong and wouldn’t dream of actively protecting, without therefore thinking they should be felonies, or even the equivalent of parking tickets.*

And I suppose this is how I look at the whole issue. I don’t see it as all or nothing, as free speech or nothing, as a blanket endorsement of free speech or a blanket criminalization of everything that’s not an explicit right. I suppose I look at it in a ceteris paribus way, and I often think other things aren’t equal. I suppose I see blanket or unconditional endorsements of free speech as a pre-emptive move similar to that executed by words like ‘respect’ and ‘blasphemy’. I think I’m going to write a book about this.

It’s not that I don’t think free speech is a good, and a tremendously important good at that, it’s just that I think 1) that it’s often a competing good and 2) that the things it competes with have to be evaluated on their merits rather than just dismissed by the trumping-power of free speech and 3) that as Stanley Fish and Onora O’Neill (among others) point out, pretty much everyone else thinks that too. If that’s true, if pretty much everyone else does think that too, then the blanket endorsement of free speech would seem to be functioning as a rhetorical tool.

Dave put it neatly in comments:

This is, of course, why politics is inevitable. There is no foundational response to the issue, other than to continue the clash between differing viewpoints over what constitutes a ‘correction’ and what a ‘falsification’, and to hope that those who defend freedom do not sell the pass one day…

There is no foundational response to the issue. Free speech is one good, but truth, accuracy, scholarship, reliable scholarship, the reliable universality and intercommunicability of scholarship and research and knowledge, methodological reliability, evidence, standards, trust – are also goods. It is by no means self-evident that free speech should protect a putative right to falsify history at the expense of all those very real and important goods. Research, inquiry, the steady accumulation of reliable, warranted knowledge would become impossible if everyone came to believe that free speech meant the right to simply invent one’s findings – to cheat, as Robert Pennock called it during the Kitzmiller trial. But – that doesn’t cash out to saying that scholars who lie should be hauled off to prison.

Onora O’Neill put it this way:

Yet even committed liberals don’t seriously think that rights to free speech are unlimited or unconditional, although they seem to be unsure about which limits should be set. They are often torn between an aspiration to justify free speech as minimal and uncontroversial, and a contrary belief that free speech matters because it is not minimal but powerful…Rights to free speech have always been seen as limited by other serious considerations, and must often be so restricted if we are to respect other rights. Nobody thinks that a right to free speech confers an unconditional licence to intimidate, to incite hatred, to defraud, to deceive or the like, and nobody thinks that the law should protect speech acts that harm, injure or put others at risk.

That’s what I’m saying. I don’t think Irving should be in prison (although I have to admit I don’t think it with much intensity or passion or even conviction, and I don’t mind much that he is there, especially after listening to Radio 4’s documentary on the trial last week) but I don’t think he has a right to falsify published history, either.

It’s all about lying, after all. Irving accused Deborah Lipstadt of lying by accusing her of libel – he was accusing her of lying about him, and he wanted the accusation to have an effect: the pulping of her book. He lost the case because he was shown to have lied extensively himself. His right to free speech didn’t trump that verdict – so in that sense it was not protected. It lost out to other, competing rights. Lipstadt won the case not because she had a right to free speech, but because the evidence showed that she told the truth and Irving lied.

Another distinction that I think helps to disentangle this is that between speech (such as speech to political meetings and rallies) and published writing. But that’s enough for now.

*Mind you, a lot of people do make exactly that translation, as I’ve remarked before. They do, oddly, hear strongly-worded disapprobation of, say, a certain kind of tv show or movie or book as a demand for censorship of same. But those are confused people, who are beside the point for the purposes of this discussion.