Free speech, hate speech
May. 23rd, 2017 01:02 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
drwexOr, why I'm a First Amendment fundamentalist. 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 Zoé 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:
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.
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 Zoé 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.
no subject
Date: 2017-05-24 01:58 pm (UTC)(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.
no subject
Date: 2017-05-24 02:56 pm (UTC)Boy howdy do we disagree. That, imo, is a bunch of people refusing to have others' views imposed on them. What happened was a bunch of people, almost all men, decided what constituted a well-behaved woman and promulgated that standard. Other people, mostly women, said "that's BS I can act this way and still be well-behaved."
Also, your view is contrary to history. As I illustrated, we started with much more restrictive notions of what it meant to have free speech and historically have been loosening them. Slowly at first, and then much more rapidly in the last century.
when the choice[1] of whether you protect $demographic or you protect the religion that says "will no one ride me of this troublesome $demographic?", I think that's a really easy choice
It's also a completely false choice. Unless you think that my saying "$demographic all should die" is a statement from which people need protection, in which case I would like you to tell me exactly which $demographic qualifies for that protection, what the criteria are for qualification, and who gets to make the decision.
Then you can explain what you tell people who are part of $demographic that you did not include on your list about why they aren't included. For example, does your list include Romany people? Here in the US it's really not an issue and the few Roma we have aren't singled out and abused the way they are in Europe. Over there it's really important and the fact that many (most?) Roma have white skins doesn't shelter them from violence and discrimination akin to, say, what Native Americans get over here.
you don't get to say "but it's my religion!" if you're abusing/neglecting your kids
That is also a terrible red herring because you've pulled child abuse out of thin air. But sure, I'll rise to it. Is corporal punishment abuse? Who gets to decide that? And what does any of this have to do with free speech?
Whether or not a parental act constitutes child abuse is a matter determined by law AND YOU ARE FREE TO DEBATE THAT. Which is precisely my point. We can get even more extreme: NAMBLA gets to have free speech, too. I personally think they're horrid advocates of child rape and that no child is mature enough to consent to adult sexual relations but that doesn't affect my views on whether or not someone gets to express a differing opinion. The age of marital consent is in the low to mid teens in a lot of non-US countries; I balk at that, but I acknowledge it's a reality and we cannot simply impose the US "age 18" rule on everyone.
no subject
Date: 2017-05-24 03:27 pm (UTC)Re: "$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.
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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!
no subject
Date: 2017-05-24 06:00 pm (UTC)US suffrage for women is complicated. Back in colonial days and subsequently, many (white) women could own property and vote. It wasn't until the start of the 19th century that the US saw an aggressive attempt to curtail womens' rights including property and voting. Remember that many non-land-owning (white) men were not permitted to vote either, as were many uneducated (white) men due to literacy tests and so on. Universal suffrage is a very modern concept.
Women's suffrage, as we think of it, started closely tied to antislavery movements. Those had large numbers of both men and women but after black people (men) won the vote it was the women who pointed out "hey, what about us?" and thus began what we think of as the suffragette movement. Like the abolition movement there were significant differences along the way between the local and national. Many frontier states gave women property and the vote in the post-Civil War era when westward expansion needed all the people it could get, and those states needed voting populations to get admitted to the union, and then Congress promptly overrode all that.
The National Women's party (of which my great-great-aunt was a member and then later a founding member of the PA chapter of the League of Women Voters) started in the early 20th century explicitly around the issue of getting women the vote. A number of historians credit protests by this group with getting then-President Wilson to flip his position on women's suffrage. He went to Congress with the idea that giving women the vote was a necessary war (WWI) measure and eventually Congress passed an amendment to do that, which eventually wound its way through the requisite state legislatures.
Whew. So when you say that it was "a majority of men" I disagree, but yes it was men in positions of power who were pressured to change the laws so women could get back their voting rights, which had been taken away by other men.
I'm not sure of the relevance of this, but thank you for causing me to recall some hours of taking tea with my great-great aunt Jenny at her house, which was called Robin Hill and was built by hand by herself and her husband. She was quite the woman; sadly, I never got to know her very well.
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.
I continue to think you're dodging the hard question. What demographics qualify for this protection, and who decides? Do we have some organization like the SPLC or the ADL that keep track of number of hate groups and number of acts and if you pass a certain threshold you qualify? If so, please tell me which groups this organization tracks, how that list is drawn up, and who defines the threshold needed for special protection.
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.
That entirely depends what you mean by "area". The vast majority of legal reasoning proceeds by analogy. Famously, law students are taught about 4th Amendment law being examined in the case of mobile homes. If a mobile home is (like a) a home then it qualifies for one kind of protection; if it's (like a) car then a wholly other set of rules applies. Judges very rarely craft decisions from first principles. They do so by building on foundations of previous precedent and reasoning about how those precedents apply in the current case.
For example, the current right to abortion rests on a foundation of a right to privacy which doesn't itself actually exist in the Constitution per se but has been reasoned to exist based on prior things and so on. This, by the way, is the kind of thing that drives judges like Scalia and Gorsuch nuts. A chain of reasoning A->B->C->D to them may be invalid unless you can also reason A->D.
This is why I thought that Chief Justice Roberts' "umpire" answer to Congress was utter bullshit, and he knew it. A judge's job - particularly that of a Supreme Court justice - is not to call balls and strikes; rather, it is to help us understand the meaning of phrases like "above the knee" and "over the plate." Those things are done by analogic reasoning, which is to say applying precedent from one area of law to another.
Onward...
1. Yes, we agree
2. Wait, stop, we seem to disagree. Nazis do get to say "All Jews should die" and it doesn't matter how often they say it. That's different from "Go kill Jews" or other statements that can lead to violence, such as "Joe Jew should die" which is a directed form of the same thing. Again, even a single utterance of an inciting statement is prohibited.
3. I'm unable to reconcile this statement with the earlier discussion about $demographic. Yes, I agree that there is a lot of gray area and it's some hard decision-making. My point in the original post is that when in a gray area I tend to lean very far toward permissive responses and I argue that socially we've been moving in that direction for the last century, to good ends.
5. Uh, no. "VLCWMUSAF are terrible people and they should all die" is still protected speech. At least, I hope it is.
On to the next list, where I jump to item 2:
what has that to do with USA laws? We're talking laws about what is and isn't okay here
Except that was exactly part of my argument against Zunger's piece was that it didn't adequately consider non-US perspectives. Nations we consider fine and generally civilized (Turkey, Thailand, and Japan leap immediately to mind) have laws restricting speech in ways I illustrated. My point is that Zunger's approach would bring us closer to the regimes in some of those countries but that would be wrong*.
no subject
Date: 2017-05-24 06:15 pm (UTC)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.
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"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.)
no subject
Date: 2017-05-25 03:15 am (UTC)I don't get that, either in the context of this conversation or in general.
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.
OK, then what's the difference between "all demographics" and "all persons"? And if it is equivalent then why are demographics even involved? It feels like you're arguing around to my position, which is that persons, regardless of their characteristics, are not to be subjected to harassment. And if all demographics then what, exactly, does "hate speech" mean such that it is forbidden?
I think you said that harassment is defined by targeted speech
That is one of its elements, yes.
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"
Not quite. That falls under incitement. Giving such an order, in any context in which a person might act on it, is verboten. Expressing the opinion that "people whose first name starts with J ought to die" is protected, except in circumstances where it can be understood to be a code for action. There was a Mafia case from, I believe, the 80s where the mob boss was heard on tape saying something like, "That So-and-So (naming the person) is a real troublemaker." Because the boss said it to his underlings the court agreed that it was not simple expression but rather was a code for expressing the desire that those underlings do something about Mr So-and-so, which they did. Boss was convicted of, iirc, conspiracy to murder despite claiming that their utterance was free speech.
This is the basis of the so-called "dog whistle" - the use of an encoded message in what looks like innocent speech but is instead understood by a specific audience in a specific way. Such things are not protected as free speech, provided one can show that they led, or would probably lead, to people acting on the basis of the implied command. I am in favor of being able to prosecute people for the use of these coded commands - what matters is not the words, but the intended effect on the target audience.
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?
Yes, exactly. I'm saying that we (Americans in particular) have a centuries-long experience with restricting speech on such grounds and it is almost always the underdogs (the gays, the Jews, the persons of color) who suffer most under such regimes.
no subject
Date: 2017-05-24 08:26 pm (UTC)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...
no subject
Date: 2017-05-25 03:21 am (UTC)But I think you are deeply, fundamentally, and dangerously wrong. As I said above, history shows that it is ALWAYS the disadvantaged who suffer most from such a protective regime. One simply has to look at the way British libel law is used by the rich and gentried to silence criticism to see it in action today. Or look at example after example from 20th century America.