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
November 21, 2013
A panopticon society, but only in one direction
For some reason, despite the recent revelations that Americans have almost literally no privacy thanks to government surveillance, some government employees think that they have a right to privacy that they actively push to deny to others:
From the ACLU of Massachusetts:
Boston Police Department bosses want to install GPS monitoring devices in every patrol car, to enable dispatch to more efficiently process 911 calls. But police officers and their union are outraged, saying that the ubiquitous tracking is too invasive of their personal privacy. Tracking the location of officers as they go about their days would reveal incredibly detailed information about their lives, the officers say.
It must be just awful to go about your daily life looking over your shoulder, conscious that your every movement and activity is being recorded and could be used against you. Oh, wait. That’s what the entire American public is already dealing with, in this age of mass electronic surveillance. But the way the police union is hissing’n’flapping about it, it’s almost as if there was something wrong with that. Don’t they know that you have nothing to fear, if you have nothing to hide?
The ACLU’s tack is that if the police don’t like the feeling of being followed, they shouldn’t be pushing for technologies like mass tracking of license plates or cellphone locations. That’s fair enough, but there’s a larger point here also.
November 17, 2013
The Anglosphere
In the Wall Street Journal, Daniel Hannan discusses exceptionalism and the Anglosphere:
We often use the word “Western” as a shorthand for liberal-democratic values, but we’re really being polite. What we mean is countries that have adopted the Anglo-American system of government. The spread of “Western” values was, in truth, a series of military victories by the Anglosphere.
I realize that all this might seem strange to American readers. Am I not diluting the uniqueness of the U.S., the world’s only propositional state, by lumping it in with the rest of the Anglosphere? Wasn’t the republic founded in a violent rejection of the British Empire? Didn’t Paul Revere rouse a nation with his cry of “the British are coming”?
Actually, no. That would have been a remarkably odd thing to yell at a Massachusetts population that had never considered itself anything other than British (what the plucky Boston silversmith actually shouted was “The regulars are coming out!”). The American Founders were arguing not for the rejection but for the assertion of what they took to be their birthright as Englishmen. They were revolutionaries in the 18th-century sense of the word, whereby a revolution was understood to be a complete turn of the wheel: a setting upright of that which had been placed on its head.
[…]
There was a fashion for florid prose in the 18th century, but the second American president, John Adams, wasn’t exaggerating when he identified the Anglosphere’s beautiful, anomalous legal system — which today covers most English-speaking countries plus Israel, almost an honorary member of the club, alongside the Netherlands and the Nordic countries — as the ultimate guarantor of freedom: “The liberty, the unalienable, indefeasible rights of men, the honor and dignity of human nature… and the universal happiness of individuals, were never so skillfully and successfully consulted as in that most excellent monument of human art, the common law of England.”
Freedom under the law is a portable commodity, passed on through intellectual exchange rather than gene flow. Anyone can benefit from constitutional liberty simply by adopting the right institutions and the cultural assumptions that go with them. The Anglosphere is why Bermuda is not Haiti, why Singapore is not Indonesia, why Hong Kong is not China — and, for that matter, not Macau. As the distinguished Indian writer Madhav Das Nalapat, holder of the Unesco Peace Chair, puts it, the Anglosphere is defined not by racial affinity but “by the blood of the mind.”
At a time when most countries defined citizenship by ancestry, Britain was unusual in developing a civil rather than an ethnic nationality. The U.S., as so often, distilled and intensified a tendency that had been present in Great Britain, explicitly defining itself as a creedal polity: Anyone can become American simply by signing up to the values inherent in the Constitution.
November 15, 2013
Nadine Strossen is against banning “dangerous” ideas
Brendan O’Neill talks to former ACLU president and ardent feminist Nadine Strossen about censorship and the demand to ban “rape porn”:
New York City doesn’t only have better buildings, bridges and burgers than London — it also has better feminists.
As British feminists agitate tooth-and-nail for the banning, or at least modesty-bagging, of lads’ mags, rape porn, Page 3 and pop vids, the NYC-based feminist and former president of the American Civil Liberties Union, Nadine Strossen, tells me she wouldn’t support the censoring or censure or even stigmatisation of any misogynistic material, including the most warped, woman-objectifying porn.
‘As a feminist, I vehemently disagree with the idea that women are sex objects, that women should be raped, that women should be discriminated against or treated unfavourably in any way’, she tells me in her offices at the New York Law School in downtown Manhattan, where she is professor of law. ‘And yet, to paraphrase Voltaire, I would defend to the death your right to say any of those things, and to say them explicitly, and to say them using sexual language.’
But what about the claim that porn, especially the disturbing rape-fantasy stuff, gives some men a skewed impression of women, implanting in their possibly dim-witted heads the idea that women are objects existing solely to satisfy male lust?
‘Well, if the “harm” [she asks for those quote marks] of a certain form of speech is that the idea it is promoting is one of which society disapproves, then that is the exact antithesis of a justification for censoring it’, she says. So far from dodging the cri de Coeur of our censorious age — which is that speech and film and porn and all the rest of it can affect individuals’ view of the world — Strossen turns it into an argument against censorship. ‘Any expression can potentially affect people’s attitudes. That is why speech is so important to protect — precisely because it can influence ideas’, she says.
November 13, 2013
The end of the ASBO … and the start of something worse
In sp!ked, Patrick Hayes talks about the new social control mechanism being introduced to replace the notorious ASBO, the Injunction to Prevent Nuisance and Annoyance:
It sounds like a joke, but IPNAs — introduced in Clause 1 of the Anti-Social Behaviour, Crime and Policing Bill, which received its second reading in the House of Lords last week — really do seem quite easy to enforce. Indeed, they make their predecessors, New Labour’s notorious Anti-Social Behaviour Orders (ASBOs), seem like a level-headed intervention into community life in comparison.
The bill says that in order for an IPNA to be granted, a court needs to be satisfied ‘on the balance of probabilities that the respondent has engaged or threatens to engage in conduct capable of causing nuisance or annoyance to any person’. Once satisfied, the court can issue an IPNA in order ‘to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour’.
It seems that for the Lib-Con coalition government, the problem with ASBOs was not that they circumvented the normal exercise of law by dishing out behaviour-controlling orders to people who hadn’t actually committed any crime, but rather that they only covered behaviour that might cause ‘harassment, alarm or distress’. So it has introduced IPNAs, which cover everyday nuisance and annoying behaviour, too. In fact, you don’t actually have to be annoying to get an IPNA — even the threat of behaving annoyingly can earn you one of these orders that do not require criminal-law standards of proof and can instead be handed out, to anyone over 10, at a court’s convenience. If you flout an IPNA, you face up to three months in prison.
November 12, 2013
Contacting the Boston Police public affairs office is now considered “intimidation”
At Popehat, Ken White discusses the fascinating case of the public affairs office of the Boston Police department as a “victim” of “intimidation” from callers:
The story begins typically for Photography Is Not A Crime with a story about a Boston Police Department sergeant thuggishly assaulting a photographer recording a traffic stop. A PINAC fan and journalism student named Taylor Hardy called the Boston PD’s Bureau of Public Information on its public line to ask about the story. Hardy spoke with Angelene Richardson, a spokesperson for the Boston Police Department who provides information to the media and public. When Hardy published a recording of that call, the Boston Police Department arranged for him to be charged with wiretapping. Hardy claims that he informed Richardson that he was recording the call (though he did not successfully record that part of the conversation), apparently Richardson claims that he did not.
Even assuming that Hardy didn’t disclose that he was recording (and it would be foolish to take the BPD’s word on that), it’s very dubious policy for the government to charge a citizen with a crime for recording a call with a police department’s public information officer on the phone line the department identifies as its public information line. Any such communication can’t possibly be regarded as private. There may be constitutional problems with a wiretapping statute that allows prosecution of a citizen under those circumstances. But the BPP wasn’t done doubling down yet.
When Carlos Miller wrote about the wiretapping charges against Hardy, he encouraged readers to contact Richardson at her BDP telephone number and email address, which the BPD published online:
Maybe we can call or email Richardson to persuade her to drop the charges against Hardy considering she should assume all her conversations with reporters are on the record unless otherwise stated.
In other words, Miller encouraged his readers to petition the government for a redress of grievances, as protected by the First Amendment.
The BPD has charged Miller with witness intimidation. The BPD also threatened any of Miller’s readers who contact the BPD:
Detective Nick Moore also assured me he would do the same to any PINAC readers if they continue to contact departmental spokeswoman Angelene Richardson as they have been doing since yesterday.
“I can go and get warrants for every person who called her,” he said during a telephone conversation earlier this evening. “It’s an annoyance. It’s an act of intimidation.”
Indeed — an act of intimidation is involved. But it’s an act of intimidation by the BPD, which is sending a clear message about how it will handle citizen dissent.
What a accomplishment: the Boston Police Department has discovered a way to make it a crime for citizens to contact the person it designates to talk to citizens.
November 7, 2013
Some guidelines on not getting arrested
In The Atlantic, Mike Riggs pulls some potentially useful advice from a book by a former FBI and police officer:
Dale Carson is a defense attorney in Jacksonville, Florida, as well as an alumnus of the Miami-Dade Police Department and the FBI. So he knows a thing or two about how cops determine who to hassle, and what all of us can do to not be one of those people. Carson has distilled his tips into a book titled Arrest-Proof Yourself, now in its second edition. It is a legitimately scary book — 369 pages of insight on the many ways police officers profile and harass the people on their beat in an effort to rack up as many arrests as possible.
“Law enforcement officers now are part of the revenue gathering system,” Carson tells me in a phone interview. “The ranks of cops are young and competitive, they’re in competition with one another and intra-departmentally. It becomes a game. Policing isn’t about keeping streets safe, it’s about statistical success. The question for them is, Who can put the most people in jail?”
Which would make the question for you and me, how can we stay out of jail? Carson’s book does a pretty good job of explaining — in frank language — how to beat a system that’s increasingly predatory.
[…]
If police want to hassle you, they’re going to, even if you’re following the above tips as closely as possible. What then? Every interaction with a police officer entails to contests: One for “psychological dominance” and one for “custody of your body.” Carson advises giving in on the first contest in order to win the second. Is that belittling? Of course. “Being questioned by police is insulting,” Carson writes. “It is, however, less insulting than being arrested. What I’m advising you to do when questioned by police is pocket the insult. This is difficult and emotionally painful.”
Winning the psychological battle requires you to be honest with cops, polite, respectful, and resistant to incitement. “If cops lean into your space and blast you with coffee-and-stale-donut breath, ignore it,” Carson writes. Same goes for if they poke you in the chest or use racial slurs. “If you react, you’ll get busted.” Make eye contact, but don’t smile. “Cops don’t like smiles.” Always tell the truth. “Lying is complicated, telling the truth is simple.”
November 4, 2013
Living in a Surveillance State: Mikko Hypponen at TEDxBrussels
October 30, 2013
The “Libertarian Moment” – or small government’s latest 15 minutes of fame
In Time, Nick Gillespie says that if “everyone from The Washington Post to NPR to The Atlantic are talking about some variation on ‘America’s Libertarian Moment,’ attention must be paid”.
The American Values Survey is based on responses gathered in late September and early October from a representative group of about 2,300 adults. The researchers used answers to questions about national security, economics, and “personal liberty” to create a “Libertarian Orientation Scale.” By such measures, 7 percent of Americans are “consistent libertarians” and another 15 percent “lean libertarian,” meaning they oppose increased government spending on things such as military operations and domestic surveillance, raising the minimum wage, and environmental regulations.
Such fiscal conservativism is matched by social liberalism, with libertarians in favor of legalizing marijuana, protecting abortion rights, allowing doctors to prescribe life-ending drugs, and keeping the Internet unregulated. Libertarians are much more likely than most Americans to be male, white, and under 50 years old. They are also far less likely than most Americans to be religious and to think that religion has a place in politics. This puts them at odds with “other key Republican base groups” such as the Tea Party movement and white evangelical Protestants.
As befits people who put a high value on individualism, libertarians don’t fit easily into existing political categories even as they are far more likely to pay close attention to politics than the average American (56 percent of libertarians versus just 38 percent) and to always vote in primary elections. “The Libertarian Orientation Scale and traditional measures of political ideology that run along a liberal-conservative axis are only weakly correlated,” according to the survey.
That means that the 22 percent of Americans who are consistent libertarians or lean libertarian are fully capable of throwing any election in their direction. That makes them the true wild cards of American politics. A majority of libertarians describe themselves as independent (35 percent), affiliated with a third party (15 percent), or as Democrats (5 percent), with the remaining 45 percent calling themselves Republicans.
October 28, 2013
Reason.tv – What We Saw At The Anti-NSA “Stop Watching Us” Rally
On October 26, 2013, protesters from across the political spectrum gathered in Washington, D.C. to take part in the Stop Watching Us rally, a demonstration against the National Security Agency’s domestic and international surveillance programs.
Reason TV spoke with protesters — including 2012 Libertarian Party presidential candidate Gary Johnson and former Congressman Dennis Kucinich — to discuss the rally, why people should worry about the erosion of privacy, and President Barack Obama’s role in the growth of the surveillance state.
Correction: Laura Murphy, Director of the ACLU Washington Legislative Office, was incorrectly identified as Susan N. Herman, ACLU President.
Produced by Joshua Swain, interviews by Todd Krainin.
October 27, 2013
Good news – we’re not in 1984; Bad news – we’re in Brave New World instead
I’ve already quoted from this week’s edition of Jonah Goldberg’s The Goldberg File email, but I quite liked this passage as well:
The bad news is that we don’t feel that way — anymore — about softer, more diffuse and bureaucratic forms of tyranny. Every American is taught from grade school up that they should fear living in the world of Orwell’s 1984. Few Americans can tell you why we shouldn’t live in Huxley’s Brave New World. We’ve got the dogmatic muscle and rhetorical sinew to repel militarism, but we’re intellectually flabby when it comes to rejecting statist maternalism. We hate hearing “Because I said so!” But we’re increasingly powerless against, “It’s for your own good!”
(Sadly, the surest route to the 1984-ification of America is to embrace Brave New Worldism. Once you’ve created a society of men without chests — in C. S. Lewis’s phrase — you’ve created a society ripe for a father-figure to make all of the decisions).
For instance, when the national-security types intrude on our privacy or civil liberties, even theoretically, all of the “responsible” voices in the media and academia wig out. But when Obamacare poses a vastly more intrusive and real threat to our privacy, the same people yawn and roll their eyes at anyone who complains. If the District of Columbia justified its omnipresent traffic cameras as an attempt to keep tabs on dissidents, they’d be torn down in a heartbeat by mobs of civil libertarians. But when justified on the grounds of public safety (or revenue for social services or as a way to make driving cars more difficult), well, that’s different.
And it is different. Motives matter. But at the same time, I do wish we looked a bit more like the America Edmund Burke once described:
In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; [In America] they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance; and snuff the approach of tyranny in every tainted breeze.
October 26, 2013
The costs of drug prohibition – “Molly”
Jacob Sullum on Frank Owen and Lera Gavin’s search for “Molly” (MDMA powder in capsule form):
Last year in Playboy, Frank Owen skillfully dissected the Legend of the Causeway Cannibal, explaining how people around the world came to believe that the synthetic stimulants known as “bath salts” caused one man to eat another’s face, even though it turned out that the assailant had not actually consumed any of those drugs. In a new Playboy article, Owen and his wife, Lera Gavin, go “Chasing Molly,” searching high and low for some decent MDMA sold under its latest brand name. Spoiler alert: They fail.
[…]
It looks like many people who report MDMA-like experiences of openness and connectedness after consuming molly are providing further evidence of the powerful impact that “set and setting” (expectations and environment) have on a drug’s perceived effects. Yet this interesting experiment drug warriors have set up has a cost: not just disappointment but potentially deadly hazards for consumers who get something different from what they thought they were buying, as tends to happen in a black market.
Prohibition not only makes drugs more dangerous by creating a situation where people are swallowing iffy pills and snorting mystery powders; it blocks attempts to ameliorate those hazards. Owen and Gavin note that music festivals such as Electric Zoo, which this year was cut short after two drug-related deaths, “refuse to allow organizations such as Dance-Safe to test molly on-site because organizers fear they will be accused of condoning drug use.” Such accusations can trigger serious legal consequences, including forfeiture and criminal prosecution.
October 11, 2013
Creating an “air gap” for computer security
Bruce Schneier explains why you’d want to do this … and how much of a pain it can be to set up and work with:
Since I started working with Snowden’s documents, I have been using a number of tools to try to stay secure from the NSA. The advice I shared included using Tor, preferring certain cryptography over others, and using public-domain encryption wherever possible.
I also recommended using an air gap, which physically isolates a computer or local network of computers from the Internet. (The name comes from the literal gap of air between the computer and the Internet; the word predates wireless networks.)
But this is more complicated than it sounds, and requires explanation.
Since we know that computers connected to the Internet are vulnerable to outside hacking, an air gap should protect against those attacks. There are a lot of systems that use — or should use — air gaps: classified military networks, nuclear power plant controls, medical equipment, avionics, and so on.
Osama Bin Laden used one. I hope human rights organizations in repressive countries are doing the same.
Air gaps might be conceptually simple, but they’re hard to maintain in practice. The truth is that nobody wants a computer that never receives files from the Internet and never sends files out into the Internet. What they want is a computer that’s not directly connected to the Internet, albeit with some secure way of moving files on and off.
He also provides a list of ten rules (or recommendations, I guess) you should follow if you want to set up an air-gapped machine of your own.
October 6, 2013
Reason.tv – Why More People Identify as Libertarian
“We’ve noticed in the last fifteen months an uptick in the number of people who are actually self identifying as libertarian,” says Freedomworks’ David Kirby.
Kirby sat down with Reason magazine’s Editor-in-Chief Matt Welch to talk about why more people describe themselves as libertarian, how politicians like Senator Rand Paul and Congressman Justin Amash have come to think of themselves as libertarian and whether Glenn Beck calling himself libertarian is a good thing.
