Yesterday, someone called Sean McElwee had enough of a sense of humor to post in the “civil liberties” section of the website Alternet an ode to the censorship of free speech. McElwee’s “case for censoring hate speech” comes down to the novel idea that certain groups must be protected from verbally attacks on the Internet lest they come feel that they are unwelcome in society and struggle permanently to recover. If individual websites and social media services will not step in, McElwee pleads, then the state must.
In arguing that society isn’t capable of countering Bad Speech with Good Speech, McElwee set his essay up by contending that:
It’s interesting to note how closely this idea resembles free market fundamentalism: simply get rid of any coercive rules and the “marketplace of ideas” will naturally produce the best result
Generally speaking, I would suggest the claim that if one “simply gets rid of any coercive rules . . . the ‘marketplace of ideas’ will naturally produce the best result” is a reasonable one. At the very least, it is a better arrangement than all of the others. In this, I happily side with Thomas Jefferson, who reasoned in Notes on the State of Virginia that:
Truth can stand by itself. Subject opinion to coercion: whom will you make your inquisitors? Fallible men; men governed by bad passions, by private as well as public reasons. And why subject it to coercion? To produce uniformity. But is uniformity of opinion desirable? No more than of face and stature.
Fallible men are, of course, not to be trusted with the subjection of opinion to coercion. Nevertheless, even if they were, and even were McElwee is correct to argue that free speech doesn’t usually lead us to a good place, well, that still wouldn’t really be relevant. The efficacy of free speech is not the primary argument for its protection, and nor is that protection contingent upon it. The argument for free speech is that the state has no right to deprive of your unalienable rights in the first place, and that this is why those rights were recognized – no, not “invented” — in the Constitution. Liberty predated the American government and Americans were not expected to relinquish it in order to enter into the new social contract. Indeed, as McElwee himself correctly notes:
American free speech jurisprudence relies upon the assumption that speech is merely the extension of a thought, and not an action.
This is absolutely correct. This is why what you say has nothing to do with anybody else. Unfortunately, McElwee then goes off the rails:
If we consider it an action, then saying that we should combat hate speech with more positive speech is an absurd proposition; the speech has already done the harm, and no amount of support will defray the victim’s impression that they are not truly secure in this society
This is absurd. There is indeed a category of protected “speech” that involves only action and not words. It is called ”symbolic” speech. This includes things such as burning a flag, wearing certain clothes, or holding protest signs. It should be pretty obvious that writing something on the Internet does not come to close even to this, let alone to physical action. Why? Because action is not speech as a cat is not a bicycle. And, as we have learned from the British, European, and Canadian experiences, one can not allow the victims of hurtful speech the power to transmute one’s words into assault. That way lies Salem, witch trials, spectral evidence, and the replacement of objective legal judgement and the rule of law with subjective nonsense and special pleading.
As for the rest: Why will “no amount of support defray the victim’s impression that they are not truly secure in this society”? That is nothing other than an assertion. Are we seriously suggesting that if a neo-Nazi group says something horrific about Jewish people and the country reacts in horror, the Jews will conclude that the speaker was right to a man? I think not. Besides, how can one decide what is “too hurtful” and what is not?
In support of his case, McElwee gets specific:
On Reddit, for example, women have left or changed their usernames to be more male-sounding lest they face harassment and intimidation for speaking on Reddit about even the most gender-neutral topics.
So what? One has a right to “free assembly” and to “free speech.” But, morally and constitutionally, one absolutely does not have a “right to feel welcome at Reddit.” If Reddit is full of bigots or idiots — or you’re not welcome there — then, well, leave. What exactly does this have to do with American jurisprudence? One of the myriad reasons that I don’t hang out on, say, the Daily Kos is that it is full of people who think I’m the Devil. If you’re used to hanging out with libertarians and conservatives who you know are good people, it is pretty gross to see them so casually impugned. So I don’t go there. Naturally, this gets more tricky in a public square. But when was the last time you saw any of what McElwee goes on to cite being peddled without impediment in public?:
Reddit, for instance, has become a veritable potpourri of hate speech; consider Reddit threads like /r/nazi, /r/killawoman, /r/misogny, /r/killingwomen. My argument is not that these should be taken down because they are offensive, but rather because they amount to the degradation of a class that has been historically oppressed. Imagine a Reddit thread for /r/lynchingblacks or /r/assassinatingthepresident. We would not argue that we should sit back and wait for this kind of speech be “outspoken” by positive speech, but that it should be entirely banned.
For what it’s worth, I would actually argue that we should “sit back and wait.” On the question of “assassinatingthepresident,” at least, American law might not follow me that far. But I struggle to believe that I am alone in this. Either way, there is a pretty simple solution to this problem: Don’t go to those groups on Reddit.
Predictably, McElwee proceeds to pull out a version of the ”America is the only country in which . . .” card:
Canada, England, France, Germany, The Netherlands, South Africa, Australia and India all ban hate speech. Yet, none of these countries have slipped into totalitarianism. In many ways, such countries are more free when you weigh the negative liberty to express harmful thoughts against the positive liberty that is suppressed when you allow for the intimidation of minorities.
Those countries are not “totalitarian,”, no. But the notion that limiting the freedom of people is actually making them more free is downright Orwellian – literally Orwellian, in fact. Orwell, who famously lampooned such thinking as arguing that ”War is peace. Freedom is slavery. Ignorance is strength” put this pretty bluntly: “If liberty means anything at all,” he wrote, “it means the right to tell people what they do not want to hear.” Still, for McElwee, there are some thing that are just Too Bad:
in today’s reality, this issue has already been decided; impugning someone because of their race, gender or orientation is not acceptable in a civil society.
Sure, it’s not desirable in a civil society. But it has to be acceptable. The state, which is full of flawed men, cannot possibly conclude that “the issue has already been decided,” ossify truth, and set it in aspic. (Look at the record of the Confederacy on this, which made it illegal to criticize slavery or to advocate for abolition.) Ironically enough, what McElwee is effectively suggesting is that, in the name of protecting the sensibilities of minorities, we create a new set of minorities whose views fall outside of what “civil society” considers “acceptable” and then we persecute them. This is downright silly. If you were parodying this, you might have someone like me saying: ”but neo-Nazis are people and citizens, too!” In fact, this is precisely what I am arguing. I don’t want any groups created in order to abolish an individual right.
Of course, McElree views the First Amendment not as a neutral gurantees of a basic liberty but as something that explicitly protects certain groups at the expense of another:
As Jeremy Waldron argues, hate speech laws prevent bigots from, “trying to create the impression that the equal position of members of vulnerable minorities in a rights-respecting society is less secure than implied by the society’s actual foundational commitments.”
I’m afraid that this doesn’t make much sense. The “actual foundational commitment” of this country is a commitment to individual liberty. Free speech is explicitly mentioned and guaranteed in the Constitution; the right not to be made to feel unwelcome or to be hurt is not. McElwee complains that recent evidence “draws into question the notion that the ‘twittersphere’ can organically combat hate speech” and concludes that “hate speech is not going to disappear from twitter on its own.” So be it. Liberty is more important — and the truth shall set you free.
The one and only.