Speech has consequences. It ought to.
In America, we have an elaborate set of laws strictly limiting the government’s ability to inflict those consequences. That is right and fit; the First Amendment prevents the government from punishing us for most speech.
Private consequences are something else. Speech is designed to invoke private and social consequences, whether the speech is “venti mocha no whip, please,” or “I love you,” or “fuck off.”1 The private and social consequences of your speech — whether they come from a barista, or your spouse, or people online, or people at whom you shout on the street — represent the free speech and freedom of association of others.
Yet people often confuse these categories. It’s one of the fundamental errors of free speech analysis that I like to write about the most. I praise people who get it right — like a university administrator who points out that racist speech is not sanctionable, but will have social consequences — and ridicule people who get it wrong — like people who apply the term “bullying” to any criticism of their speech, or assert a right not to be criticized for being an asshole, or generally proclaim that criticism is tyranny.
Yet the idea persists.
But speech has private social consequences, and it’s ridiculous to expect otherwise. Whether sincere or motivated by poseur edginess, controversial words have social consequences. Those social consequences are inseparable from the free speech and free association rights of the people imposing them. It is flatly irrational to suggest that I should be able to act like a dick without being treated like a dick by my fellow citizens.
Some criticize social consequences as being chilling to free speech. That misappropriates the language of First Amendment scrutiny of government restrictions on speech and seeks to impose it upon private speech. It is true, superficially, that I am chilled from saying bigoted things because people will call me a bigot, or chilled from saying stupid things because people will call me stupid. But how is that definition of chill coherent or principled? How do you apply it? If Pax Dickinson suggests that “feminism in tech” is something to be scorned, to we treat that as something that as first-speaker speech that we ought not chill with criticism, or do we treat it as a second-speaker attempt to chill the speech of the “feminists in tech” with criticism? What rational scheme do you use to determine what speech is “legitimate disagreement,” and what speech is abusive and “chilling”?
Ken White “Speech And Consequences”, Popehat, 2013-09-10
November 22, 2013
September 9, 2013
Christopher Taylor on the way to shut down an opponent’s argument by accusing them of a thoughtcrime:
Another nifty trick is to accuse someone of something because you don’t care for what they think or say, then if they deny it, call that proof of their evil. It’s called Kafkatrapping, and it works like this: “if you start anything with the words ‘I’m not racist’ well that’s proof you are.” Don’t like someone’s position but cannot factually or rationally refute it? Just Kafkatrap them.
The term Kafkatrapping comes from the book The Trial by Kafka in which the victim is accused of undefined crimes against humanity and destroyed by his denying them. It works like this:
Person A: Its sad that men are raped so much more than women in America.
Person B: You’re a sick sexist for even suggesting that.
Person A: but its true, see this report from the Obama administration? I’m not sexist, I’m just telling you the facts.
Person B: Your refusal to admit your sexist nature is proof of it.
Just denying your guilt is called proof of it and all rational discussion breaks down because it has become pointless. The argument is not based on facts, truth, reason, or intellectual inquiry, it is a schoolyard argument from the 5th grade which has nothing to do with truth. Its about destroying your opponent, keeping your position intact, and making the other person look bad.
And its inevitable that when people reject reason and objective truth, they’re reduced to childish arguments from emotion and strength. Its all you have left, and all you can use. The more this becomes predominant in a society, the more effective it becomes because people are less and less equipped to even begin to debate rationally.
September 5, 2013
You could find a dozen websites offering more trenchant progressive political analysis in five minutes.
Yet Professor Penn’s lesson has value to his students. They can learn the following important things:
1. In the course of your life, people with power will act badly with impunity.
2. People with power over you will use that power to indulge themselves in droning, whether or not their droning offers any value.
3. People can be tremendously talented and knowledgeable about Subject X and be useless louts about Subject Y. Often they’ll want to talk about Subject Y.
4. People think others want to hear their opinions about politics, and think their opinions about politics are insightful.
5. A significant part of developing as an adult is deciding how you will deal with points 1 – 4.
6. Huge amounts of government money pay for absolute shit.
7. People who nominally favor freedom of expression will drop it like a hot coal when their political biases are aroused. Case in point: many angry conservative people saying that Professor Penn should be fired for a banal political rant, even though he’s a professor at a state university enjoying First Amendment protections that are rather broad. Check the comments on the sites complaining about Professor Penn if you don’t believe me.
I submit those are all valuable lessons.
I think that it’s pathetic that these students are paying to hear Professor Penn indulge himself like that even for ten minutes. I think his calling out a student in class for seeming to disagree displays low character and an excellent reason to avoid his class. But I don’t see anything that merits firing from his position at a public institution, and I am not enthused about a system in which public universities will be policed for insipid partisanship by other partisans.
But how enthusiastic do you suppose Professor Penn’s students are about faculty free speech rights after sitting through that?
June 30, 2013
Rick Falkvinge thinks that the United States is at the point of no return as far as civil liberties are concerned:
While this may seem a trivial observation, it is critical in this context: people tend to be focused on what affects them in the here and now. While some people can connect the dots and follow the line with their eyes into the future, the vast majority of people don’t bother with something that doesn’t affect them directly, personally, and in the present. In 1932, families were still skating in the park in Berlin on weekends. All that nasty stuff was theoretical, rumored, and somewhere else. People who look ahead and try to sound the alarm bell tend to be regarded as tinfoil hats, eccentric, and nuts.
One of the first things that happens past the point of no return into a police state is the persecution of reporters. As a society is closing down, those persecuted first are those with the audience and an interest in reporting the worrying trends that society seems to be closing. This is the proverbial canary in the coal mine. This is the alarm bell. Once that happens, get out of the mine.
An event horizon is a term from astrophysics. It is the edge of a black hole – so the event horizon appears like a black sphere, if you like. Nothing, not even light, can escape from within the event horizon – hence the term black hole. But if you were traveling through space, in direction of the black hole (which may be as large as an entire solar system), then you would notice absolutely nothing as you crossed the event horizon. You would pass a point of no return, and register not a single thing while doing so. The analogy is depressingly apt.
I’ve written before that I believe that the U.S. is lost to encroaching totalitarianism, which it will likely endure for a number of years before it collapses under its own weight (as all empires do sooner or later). With Edward Snowden being hunted relentlessly across the globe for leaking evidence of systematic abuse of power, Glenn Greenwald – who published Snowden’s leaks – was recently criticized for aiding and abetting the leak itself. This is a key choice of words, for aiding and abetting a crime is itself a crime – the wording suggested that the reporter who published evidence of abuse of power is himself a criminal.
June 27, 2013
In all the news from the US yesterday, this little civil liberties tidbit got pushed off the front page:
As I write this I am still only being updated by text message on the proceedings in the Senate chamber but I am told Bill C-304 has passed third reading and will receive Royal Assent tonight making it law.
What does this bill do?
There are a number of amendments to the act that help limit abuse but the main one is this:
2. Section 13 of the Act is repealed.
To put it bluntly, the means you can’t take someone through the federal human rights apparatus over hurt feelings via a blog post or a Facebook comment.
Now the bill is passed and will become law but like many acts of Parliament it will not come into force for a year.
Still after a long hard battle to restore free speech in Canada, this is a victory.
June 13, 2013
June 3, 2013
“I believe in freedom of speech and defend his rights to say what he wants, but once it starts offending people then it’s a police matter”
A Welsh shopkeeper gets a visit from two police officers after a slogan on a T-shirt gets someone upset:
A Newport shopkeeper has been forced by police to remove a T-shirt from his shop window because they felt it “could be seen to be inciting racial hatred.”
Matthew Taylor, 35, the owner of Taylor’s clothes store on Emlyn Walk in the city, printed up and displayed the T-shirt with the slogan: “Obey our laws, respect our beliefs or get out of our country” after Drummer Lee Rigby, 25, was killed in near Woolwich barracks in London last week.
But following a complaint from a member of the public, police came to his store and threatened to arrest him unless he removed the Tshirt from sight.
Mr Taylor said: “I had a visit from two CSOs (community support officers) because it has been reported by someone who felt it was offensive.
What was rather more depressing is how some elected officials view free speech:
Chairman of the Welsh affairs select committee, David Davies MP said: “I think the police are well aware of that (the current heightened tensions between communities) and I can see their point of view.
It’s a very sensitive time.
“But I can see this guy’s point of view and the statement he is making. You should not be in this country if you are not prepared to obey the laws.
I think the vast majority of people in this country of all races would agree with that.
So I don’t think it is a racist matter at but I can see the police’s point of view.”
Newport city councillor, Majid Rahman said: “I believe in freedom of speech and defend his rights to say what he wants, but once it starts offending people then it’s a police matter and it’s up to them whether they think it’s broken any laws.”
So, under this concept, you’re free to say anything you want, unless someone is offended and then the police have to get involved. I think someone misunderstands what “free” really means.
Sean Thomas outlines the notion of “checking your privilege” before discovering that he is the most underprivileged person in Britain:
The idea of Checking Your Privilege is that the opinions of “underprivileged” people, in any political debate, are deemed to be intrinsically more important and valuable than the beliefs of those who are luckier in life.
This is especially true if the debate relates to an area in which The Underprivileged Person is adjudged to be deprived. Extreme versions of Privilege Theory assert that, in especially sensitive arguments, the more privileged person should say nothing at all. e.g. white people are not allowed to express an opinion on racism.
[. . .]
It’s an impressive list of deprivations. Sometimes, when I look at my life, I wonder if I am [a] talented black saxophone player in the 1950s, or at least a meth dealer in central Baltimore – rather than a writer in north London. Certainly, I am THE most underprivileged person in the UK. And this means that my opinion is the most worthy and important of all, and everyone else must shut up, while I opine.
And my opinion is this: Privilege Checking is stupid. It is vacuous and diseased. It is a duet of moral vanity and bourgeois guilt which symptomizes the decadence and redundancy of what passes, today, for lefty “thinking”. Karl Marx (middle-class, well-travelled, disapproved of Engels’s plebby girlfriend) must be spinning on his Highgate pedestal when he sees what his great discourse has turned into.
I hope that clears things up. Now we can move on; IMHO, of course.
May 28, 2013
L. Neil Smith received one of the many email chain letters from a conservative acquaintance about “thanking a veteran” and indulged in a bit of fisking:
So with all that in mind, let’s consider the Memorial Day claims my friend sent to me, and I can only hope he’ll be my friend after this.
“It is the veteran, not the preacher, who has given us freedom of religion.”
The truth is that neither the veteran nor the preacher ever gave us such a right, it is ours, under natural law, the very moment we are born. It can certainly be suppressed, and has been other places in the world, and here, as well — ask any Mormon — but this government hasn’t fought a war to defend any American’s rights since the Revolution.
“It is the veteran, not the reporter, who has given us freedom of the press.”
Once again, not so. When the War of 1812 “broke out” — the U.S. was attempting to bestow the blessings of American life upon Canada whether Canada wanted them or not — and people objected (New England nearly seceded over it) people were accused of “sedition”, a charge that should be impossible under the First Amendment, and thrown in jail.
Later, Abraham Lincoln used the Army to smash the printing presses of his political opposition and intimidate voters during the 1864 election.
“It is the veteran, not the poet, who has given us freedom of speech.”
Freedom of speech and of the press are natural rights, as well, which governments in general, and the American government in particular, have always regarded as a threat. If any single individual can be thanked for it, that honor belongs to John Peter Zenger (look him up). At some point, the establishment press became so corrupt, concealing or excusing government atrocities, that they became a part of government, and a new press — the Internet — had to evolve in its place.
“It is the veteran, not the campus organizer, who has given us freedom to assemble.”
Having once been a “campus organizer” myself, I am well aware how little we had to do with defending the right to assemble, and how very badly it was done. But please, don’t be ridiculous. Two words: Kent State.
“It is the veteran, not the lawyer, who has given us the right to a fair trial.”
Actually, to the extent that any human institution is responsible for the right to a fair trial, it’s a thousand years of English Common Law.
“It is the veteran, not the politician, Who has given us the right to vote.”
A dubious gift, at best, but it didn’t come from any politicians or veterans. Thank the Greeks, and don’t forget the Basques, whose methods of self-government were consciously imitated by the Founding Fathers.
I like and admire veterans, My dad was a vet and his dad before him. But name any war the United States ever fought to defend American rights.
May 24, 2013
Jonah Goldberg on the bits of the first amendment that the mainstream media tends to forget about:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
That’s the full text of the First Amendment. But (with apologies to the old Far Side comic), this is what many in the press, academia, and government would hear if you read it aloud: “Congress shall make no law respecting an establishment of religion, blah blah blah, or abridging the freedom of the press, blah blah blah blah.”
[. . .]
The press can always be counted upon not just to speak up for itself, but to lavish attention on itself. “We can’t help that we’re so fascinating,” seems to be their unspoken mantra.
And that’s fine. What’s not fine is the way so many in the press talk about the First Amendment as if it’s their trade’s private license.
The problem is twofold. First, we all have a right to commit journalism under the First Amendment, whether it’s a New York Times reporter or some kid with an iPhone shooting video of a cop abusing someone.
I understand that professional journalists are on the front lines of the First Amendment’s free-press clause. But many elite outlets and journalism schools foster a guild mentality that sees journalism as a priestly caste deserving of special privileges. That’s why editorial boards love campaign-finance restrictions: They don’t like editorial competition from outside their ranks. Such elitism never made sense, but it’s particularly idiotic at a moment when technology — Twitter, Facebook, Tumblr, Vine, etc. — is democratizing political speech.
March 22, 2013
I have to confess, as an ignorant inhabitant of North America, that I don’t really understand the current press scandal in the U.K., and I was hoping that perhaps someone could enlighten me.
As I understand it, a number of members of the press committed crimes in the course of gathering material for stories — that is, they committed acts that were already illegal, and which already carried substantial penalties.
It would therefore seem that preventing such acts in the future would require nothing more than diligently enforcing existing law.
I’m therefore curious as to what purpose is articulated for ending freedom of expression in the U.K.
Is it claimed that the laws were not being enforced before on the powerful? Then surely the new restrictions on freedom will be selectively enforced as well, with only the weak being stifled. (That is, of course, universal — the powerful never need permission to do anything. Freedom is a protection for the weak, the strong need no protection.)
Is it claimed that performing criminal acts was somehow insufficiently illegal? Is it claimed that the existing laws against criminal conspiracies are not already broad, vague and all-encompassing?
Perry Metzger, “Doubly-illegal acts”, Samizdata, 2013-03-21
Explaining the title of this post:
Daffy Duck: “Batten down the hatches!”
Bugs: “We did batten ‘em down!”
Daffy: “Well, batten ‘em down again, we’ll teach those hatches!”
March 17, 2013
The EFF posted more information about the court decision that National Security Letters violate the constitution:
The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue administrative letters — on its own authority and without court approval — to telecommunications companies demanding information about their customers. The controversial provisions also permit the FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that a demand was made, which prevents providers from notifying either their customers or the public. The limited judicial review provisions essentially write the courts out of the process.
In today’s ruling, the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional. In addressing the concerns of the service provider, the court noted: “Petitioner was adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate.”
“The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power,” said EFF Legal Director Cindy Cohn. “The NSL statute has long been a concern of many Americans, and this small step should help restore balance between liberty and security.”
March 16, 2013
The “most transparent administration” may be forced to be a bit more transparent after a US federal judge declared National Security Letters to be unconstitutional:
Ultra-secret national security letters that come with a gag order on the recipient are an unconstitutional impingement on free speech, a federal judge in California ruled in a decision released Friday.
U.S. District Judge Susan Illston ordered the government to stop issuing so-called NSLs across the board, in a stunning defeat for the Obama administration’s surveillance practices. She also ordered the government to cease enforcing the gag provision in any other cases. However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals.
“We are very pleased that the Court recognized the fatal constitutional shortcomings of the NSL statute,” said Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed a challenge to NSLs on behalf of an unknown telecom that received an NSL in 2011. “The government’s gags have truncated the public debate on these controversial surveillance tools. Our client looks forward to the day when it can publicly discuss its experience.”
[. . .]
NSLs are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited and more.
NSLs are a powerful tool because they do not require court approval, and they come with a built-in gag order, preventing recipients from disclosing to anyone that they have even received an NSL. An FBI agent looking into a possible anti-terrorism case can self-issue an NSL to a credit bureau, ISP or phone company with only the sign-off of the Special Agent in Charge of their office. The FBI has to merely assert that the information is “relevant” to an investigation into international terrorism or clandestine intelligence activities.
March 14, 2013
Arnie Lemaire, who blogs at Blazing Cat Fur is becoming a bother to the great and the good at the Toronto District School Board. After a recent comment on his blog, the TDSB sent police officers to his door:
Can writing a sarcastic but clearly tame blog comment really land two cops at your doorstep?
It happened to Blazingcatfur blogger Arnie Lemaire Wednesday for musing “OISE and the TDSB need to be purged, or burnt to the ground whichever is more effective.”
He’s, quite rightfully, upset about it.
But, often critical of the Toronto District School Board and the Ontario Institute for Studies in Education, Lemaire said he will not back down from efforts to “intimidate” him.
“Dear TDSB, You Can’t Silence Me,” was a headline on the blazingcatfur.blogspot in response.
But, what they clearly can do, is bring in the police to investigate.
In what can be described as more TDSB theatre of the absurd, an obscure six-week-old blog comment resulted in police visiting his home like one might see back in the day of the Stasi in communist East Germany.
Update: As Mark Steyn puts it “Nobody Expects the Toronto District School Board Inquisition…“
It seems a wee bit over-sensitive for a school board that promotes murderous goons like Che Guevara and cop-killers like the Black Panthers as role models to its young charges to get its knickers in a twist over a blog post. But, of course, for leftie social engineers, the glamor of the revolutionary aesthetic is mostly a useful cover for inculcating a bovine, unquestioning statist compliance from which no deviation is permitted. There was barely any pretense by the cops that there was a legal justification for what happened yesterday; it was just a friendly warning: “Nice blog ya got there. Would be a real shame if something happened to it.“
One of the most disquieting trends in western Europe is the state’s increasingly open intimidation of those who dissent from the official ideology. Sad to see it on this side of the Atlantic.
March 6, 2013
Colby Cosh: “One sees what fine jokes result when the state tries to make one plus one equal fried chicken”
In Maclean’s, staff optimist and all-around-softy Colby Cosh tries to make lemonade out of the sour Whatcott ruling by the Supreme Court of Canada:
The ruling was appalling in a number of ways, most notably in its dismissal of any possibility of a truth defence against human rights commissions who hunt “hate speech.” The court specifically insists that true statements arranged in certain ways can be officially “hateful,” conceding a total lack of interest in truth and basically handing its banner over to the commissions’ targets. For liberals who share the goals of these commissions, this is a moral disaster that can only multiply Bill Whatcotts ad infinitum. People of the Whatcott type already believe themselves to be in special possession of suppressed facts, and now the court has said explicitly that spreading falsehoods is no part of their offence.
But since we columnists are in the business of telling truth, whatever a court thinks, it ought to be admitted that, dead or alive, free speech in Canada was never in such good shape. The Supreme Court’s decision is an elaborate partial rescue of standing precedent; the constitutionality of hate policing by provincial commissions was established many years ago, and the unpleasant surprise is only that it wasn’t killed on this occasion.
[. . .]
For those of us who make a living in creative or intellectual expression, it is worth something to have the laws limiting it defined as clearly as possible while being compacted into a minimum volume. The Supreme Court has made the rules clearer, and this is not to be sneered at, even if its logic sometimes is — especially since the overall authority of human rights commissions has undergone net diminution in the process. It is just possible the chief justice wasn’t entirely asleep at the switch.