drwex: (Default)
[personal profile] drwex
Or, why I'm a First Amendment fundamentalist. [profile] jducouer pointed to this article from Yonatan Zunger. As often with Zunger, it's a bit long but very well thought-out and worth your time to read. It just happens to be wrong*.

"wrong*" is a shorthand I use for not factually incorrect but that does not hold up to detailed scrutiny. People can disagree whether something is wrong* while still agreeing on fundamental principles and factual bases. In this case I think Zunger is wrong* in part because he's avoiding the hard part of his argument and in part because he's not considering enough points of view.

Zunger starts off agreeing with ZoƩ Samudzi who made the claim that "...implicit incitement to violence via hate speech is protectable" and identifies this as a weakness. Zunger elaborates that the reason such things ought not to be protected is because hate speech, which he equates with harassment "silence[s] the weak and amplif[ies] the powerful." That's the first wrong* thing. Harassment, a specifically targeted attack, is not the same as hate speech.

I'm not even going to address defending harassment. I know people do defend it, but they're wrong (not even wrong*). Both in law and case precedent, harassment is not protected speech. So that leaves us with a discussion of hate speech. Zunger argues that hate speech amplifies existing social asymmetries - the targets of hate speech are most often people (women, people of color, people of different gender expressions and orientation) that already have unequal burdens just in daily living. "Talking while female" and "driving while black" are actual expressions of the systemic factors that disadvantage leads to. We want to counter that, so let's take seriously a point that a system (of free speech in this case) promotes that disadvantage.

Hate speech, Zunger argues, "has the particular ability to shut down speech by minority groups more than that by majority groups." True. The question is, what do you do about that? Zunger's answer is fuzzy and he doesn't really suggest a way to deal with the problem saying things like "Devising good speech policy is profoundly hard" and "the law must wrestle with this hard problem, and try to place a meaningful dividing line". Which, I'm arguing, is exactly what it does right now, where it comes down permitting a wide array of distasteful and offensive speech.

Having shied away from one hard question it's easy to see how Zunger has shied away from an even harder question, which is why I think his view is wrong*. Ask yourself:
What constitutes "hate speech"? What is "implicit incitement"?

My guess is that you, my mostly white mostly American mostly liberal readers will come up with answers similar to mine. It's no coincidence that Zunger illustrates his article with a comic of Captain America punching a Nazi. We all agree Nazis are bad and antisemitism (and its dual Islamophobia) are bad and that's it. Right? Easy. Done.

Except, what do you say to someone who believes that your insult to their religion is hate speech? What do you say to the person who believes their king is an incarnate god and any statement portraying that person or their family as less than divinely perfect is implicit incitement? What do you say to the person who honestly believes that the Bible is the literal word of G-d and any statement questioning that is an attack on par with saying that women are inferior creatures fit only to bear children? That latter is clearly hate speech so what allows us to restrict that and not restrict someone who questions whether Jesus literally rose from the dead?

Other people see things differently[1]. An attempt to define hate speech in a way that can be applied outside our (first world, white, etc.) preconception circle has to acknowledge that difference or we are simply imposing our views on everyone. Without a clear description of "implied incitement" you are left in a situation where no one can know if their speech is to be permitted, except perhaps if it's cleared by The Group Appointed To Check Speech for Hatred and Implied Incitement. Please tell me who gets to be part of that Group - I'm quite sure it won't be freaks like me but I'm curious to know your selection process. I'm also quite certain that any situation that requires speech to be pre-cleared is going to be far worse for the people who are unfairly targeted and harassed today. History shows that when you have to pre-clear things you get prohibited from stuff like publishing poems about gay love, or comics showing interracial kissing. And on and on. It's not like we're new at this.

Zunger says that the "marketplace of ideas" requires regulation. I agree; we have those. And for very good reasons our chosen regulations target harassment and not hate speech, prohibit actual incitement not implied. The US used to have sedition laws and other things that kept free expression down. We've spent the better part of the last century learning - often the hard way (sorry Eugene Debs) - that these restrictions are generally a bad idea.

So I think it's wrong* to equate harassment and hate speech. I think it's wrong* to slip "implied" in front of incitement while pretending they're the same thing. and most of all it's wrong to assume that everyone shares the same speech values and ideals as we do.

[1] If you have not already read it I highly recommend Bruce Sterling's short story titled We See Things Differently.

Date: 2017-05-24 01:58 pm (UTC)
dcltdw: (Default)
From: [personal profile] dcltdw
An attempt to define hate speech in a way that can be applied outside our (first world, white, etc.) preconception circle has to acknowledge that difference or we are simply imposing our views on everyone.

(Emphasis mine) I don't see a problem with that. "Well-behaved women rarely make history" is a bunch of people imposing their view on a lot of other people.

I see this as the evolution of free speech: when you don't have free speech, then sure, the concept of the 1st Amendment is great. Awesome, let's implement that.

So alright, now you can believe whatever you want and say it in public.
Later we clarified: you can believe whatever you want, but you can't yell "fire!" in a crowded theatre.
Now we're clarifying: you can believe whatever you want, but "it's my religion!" isn't an acceptable excuse anymore.

Basically, when the choice[1] of whether you protect $demographic or you protect the religion that says "will no one ride me of this troublesome $demographic?", I think that's a really easy choice. We do that already: you don't get to say "but it's my religion!" if you're abusing/neglecting your kids. Child Services comes in and takes away your kids -- that's totally Us imposing our views on Them.

[1] danger danger false dichotomy alert: probably bullshit rhetorical simplification of a complicated point into a binary choice.

Date: 2017-05-24 03:27 pm (UTC)
dcltdw: (Default)
From: [personal profile] dcltdw
Re: women's rights: I agree with your response, except I think you stopped too early: it was a majority of men that then decided to grant suffrage to women, I think. I haven't studied the suffrage movement, so I don't actually know, so I'm assuming it was only men who could vote granting the right to vote to women.

Re: "$demographic should die" -- my point is all demographics need protection from that. Right now, the (say) Irish don't need protection from that, but they did in the USA past. But just because there aren't people saying that doesn't mean that Irish descendants suddenly lose that protection.

Re: red herring -- nrrr true, I broadened the discussion scope. Mea culpa! I was trying to make the point that we already have a legal situation where "but it's my religion" is not a defense, so to me, I am okay extending that legal we-don't-recognize-that to other situations. I may be wrong* about that. :) Hmm, to clarify: I don't think any legal precedent automatically applies to any other legal situation. I do think that, if a legal precedent in one area exists, the bar is lowered (but not eliminated!) to applying that precedent to a new area.

So okay, I muddled things up, so let me try again.

1, to me, one good test of free speech is "do the Nazis get to have a rally?". I feel like that's an important test: yes, they should be allowed to have a rally in the first place. I suspect we agree on this.
2, so then, do they get to say anything they want? I think we agree on No: they don't get to say "kill all the $demographic" over and over, because that's incitement to violence.
3, thus, we have two endpoints: it's totally OK for them to stand there and say nothing. If I'm reading you correctly (not at all a given!), it's not okay for them to chant death threats. Great, so how do we resolve the grey area in between? I think that's what you're trying to resolve. To me, I think "will no one rid me of this troublesome speech" is legally actionable speech. So where this gets super complicated are dog whistles, to which you ask great questions:
3A, who gets to decide? The courts, of course. So I'm advocating after-the-fact remedies, because I agree with you that The Council That Does Pre-Judging is a bad way of doing things.
4, so then I say that if it's not the Nazis, but the Very Large Church With Many USA Followers (VLCWMUSAF) saying the exact same things, the same rules get applied.
5, likewise, if House Rabbit Society says "the VLCWMUSAF are terrible people", that's not legally actionable. "...and they should all die", okay, that's crossed the line.


This may be an irrelevant tangent -- you're responding to my possibly-derailing comment earlier, so you might decide "enhhh, let's not get distracted", which I'd totally thumbs-up. So with that caveat...

You wrote: The age of marital consent is in the low to mid teens in a lot of non-US countries; I balk at that, but I acknowledge it's a reality and we cannot simply impose the US "age 18" rule on everyone.

This makes me sprout question marks above my head, Wile E Coyote style. My thought process is something like:
1, yep, other countries do things differently.
2, okay, but what has that to do with USA laws? We're talking laws about what is and isn't okay here.
3, so sure, there are lots of great ideas from outside the US, bless them, that we adopt here. And there are ideas that we don't.
4, so okay, if you are living here (or even visiting here), you have to abide by the laws here.
5, which leads to a somewhat flippant "sure we can!" response to "we cannot simply impose the US 'age 18' rule on everyone". I don't mean to be flippant, though; on the contrary, I totally respect and value that you're starting this conversation!

Date: 2017-05-24 06:15 pm (UTC)
dcltdw: (Default)
From: [personal profile] dcltdw
That is a very cool story about your Geart-great aunt. <3

I think I can distill the core of that argument: at the time suffrage was granted, it was a body of men who voted to impose their views on society. In today's terms, it's a body of liberals who are attempting to impose their views on society.


"What demographics qualify for this protection, and who decides? [and followup questions]"

Hmm, are we talking past each other? I'm saying all demographics qualify for protection. I don't get to say "kill all the 10th generation Americans!" or whatever, in my view.

Oh, let me try this way: I think you said that harassment is defined by targeted speech. "Go kill Joe" is targeted, that's a no-no in your, bring forth the legal hot water. So if someone says "Go kill anyone who's first name starts with 'J'", I think you're saying "that's not specific enough, that's not hate speech, please try again", whereas I say "yep, hate speech, bring forth the legal hot water".

Which then leads to our disagreement in the bullet points. #2 is the crux of our difference, I think.

I agree that under Free Speech, that's allowed.
And I'm saying, it's time to move to the next level, where that's not.
And I think you're saying, that's not moving ahead, that's moving backwards... I think?

...which is thought-provoking. Hmm. (I don't have anything new to add, and I definitely don't want to dig into my position rather than sit with being challenged.)

Date: 2017-05-24 08:26 pm (UTC)
jducoeur: (Default)
From: [personal profile] jducoeur
I'm not even going to address defending harassment.

So I get that that's not what you're talking about -- but it *is* why I originally brought the topic up, and I think it's the heart of the problem here.

I mean, to me this isn't an abstract discussion. I do not give a good goddamn about some dude ranting about how bad the Jews are on his FB page. The problem comes when he slyly says, "Oh, look at that Jew who doesn't agree with me". On the surface, it's flatly factual and legally innocuous, but the reality is that it's a clear dog-whistle -- and it's one that often gets followed, with hundreds or thousands of alt-right assholes piling onto the target.

This isn't a little thing: peoples' lives are being destroyed by it. But it's a death of a thousand cuts, no one of which is a significant crime but which collectively are like being eaten by army ants.

The hate-speech thing is a complete red herring as far as I'm concerned -- this is all about *mass harassment*, using coded hate speech to *enact* it. "Hate speech" implies a particular sort of motive, and I don't *care* about the motive, I care about the harassment. Unfortunately, hate speech happens to be a particularly effective *weapon* for inciting harassment.

As far as I can tell (and IAverymuchNAL), this is a hole in our legal theory. It's related to conspiracy, it's related to incitement, it's related to harassment, but it is deliberately structured to keep the central perp's hands legally clean. I'd love to hear that people *are* being prosecuted for incitement and harassment for it, but I haven't heard of any cases where that has worked. (Seriously -- I'd be happy to be corrected on this, especially with solid caselaw that provides a good way forward.)

No, I'm not sure there is a practical way to fully address this issue without doing violence to the Constitution -- hence, I am focused on technical solutions to help the victims protect themselves. But I don't want to buy into the bad guys' lies here: this is *entirely* about harassment, not free speech, and about flouting the legal system...


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