Attacks On Free Speech

Political Philosophy
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PURPOSE. The issue of free speech is important to me for two reasons. First, it is the crucial issue in politics. Without free speech, I have only two choices left for making my social and political world better: passivity or armed revolution. Neither offers hope for improvement. Second, as part of my work, I have a historical interest in philosophical debate. Limits on freedom of speech affect the content and course of debate. Without free speech, there is no debate.

When I look at history and at my world today, I see many attacks on freedom of speech. The attacks occur in various forms. I would like to have a clearer understanding of them as a set. This post is a schematic laying out my understanding at this point in the spiral of learning. I make no attempt to document anything. The daily new reports – uncensored, one hopes – offer plenty of examples.

PHYSICAL ATTACKS – THREATENED OR COMPLETED. Only a physical attack against me can violate my right to speak freely. A physical attack need not make bodily contact. Physical attacks also include fines and imprisonment. Furthermore, a threat of attack is a form of attack. Threat is a form that Islamofascists favor. They threaten to destroy property or kill outspoken opponents. In some cases, the threats are sufficient to silence their opponents. In other cases, the Islamofascists carry out the attacks by smashing, burning, maiming, or killing.

Physical attacks to silence free speech can occur in various forms and circumstances:

  1. _ De Jure _ Censorship. The largest-scale, most-persistent attacks on freedom of speech come from governments that pass laws banning or limiting speech in one way or another. An example is a government banning the possession of certain books because they are politically dangerous to the state and its supporters. This is de jure (“from the law”) censorship. This is the kind of censorship Ayn Rand describes as the “old-fashioned” kind in “Censorship,” The Ayn Rand Lexicon, second excerpt, from “Have Gun, Will Nudge,” The Objectivist Newsletter, March 1962, p. 9. This is a direct form of de jure censorship. It is also public, that is, out in the open.

There are also hidden forms of de jure censorship. In the work already cited, Ayn Rand notes a hidden form in which a government officially regulates communication, supposedly with an even hand, and then bureaucrats unofficially use their power as a way of herding nonconformists back into conformity. The means of pressuring broadcasters, in this scenario, need not be spelled out in the legal code. A friend of the commissar of communications may merely speak privately to a friend of the president of a nonconformist broadcasting company, passing along a hint that certain programs are inappropriate politically. The broadcaster, fearing legal retribution at license-renewal time, avoids showing programs that might offend the bureaucrats.

De jure censorship may also be indirect. An example is taxation. Every dollar stolen from my pocket is a dollar that I might have spent on spreading my ideas. Further, in a socialist society, where the state owns the means of communication, the state indirectly imposes censorship by refusing to allow some individuals to use government communication facilities. Still another form of indirect de jure censorship is locking opponents in prisons, supposedly not for objectionable speech but for violations (real or imagined) of other laws selectively enforced. This is especially the case when those other laws are not objective and therefore are impossible for a rational man to follow consistently and still survive. The U. S. tax and anti-trust laws may be examples.

  1. _ De Facto _ Censorship. Censorship “from the fact” (de facto) occurs when a government tolerates or is unable to stop the violent efforts of criminals (ideologically motivated or not) who are silencing opponents. To some degree, this is happening in parts of Europe and the United States. Islamofascists make threats that silence their enemies, and the state does little or nothing.

Another form of de facto censorship occurs when individuals or whole departments in a government suppress free speech without having legal justification. An example would be “dirty tricks” played by rogue police officers – for example, burning mailing lists or burglarizing campaign headquarters of political opponents.

SUMMARY. Despite their many forms – de jure and de facto, public and hidden, direct and indirect – all attacks on freedom of speech are acts of aggression, that is, physical force.

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That’s a very thorough summary. I suppose the question that remains is this: is there ever a case for the use of force to stop speech? In other words, can some type of speech be the initiation of force, and could the government’s restriction be retaliatory?

The usual example would be: when it can be objectively demonstrated that particular speech leads to the violation of rights. Some plausible examples are: shouting “fire” in a theatre, leaking military secrets, slander, distribution of pornography to children. I say “plausible”, because some of these are clearer than others.

Considering the concrete examples listed above, one common aspect is their close tie to action. They can reasonably be believed to result in some type of action. Someone give me the right word, in the meanwhile, I’ll say certain types of speech are “reasonably presumed to be causal”.

Some (even Western) governments take it one step further and ban “hate speech”. I am not refering to speech which is close to shouting “fire”, but just a text like “Mein Kampf”. Advocates of such a ban, can point to history and show that the ideas in that text “caused” actions that resulted in many deaths and much destruction. Yet, we would not want it censored. I think the essential reason is that text has to be read and processed, the reader has enough opportunity to think it through and act thoughtfully. So, if someone reads a book like that, then goes and blows up a synagogue, we may place some moral blame on the author of the text he read, but we place legal blame solely on the actor.

I hope this does not take the discussion too far asunder; but, I think we need a principle that we can use to draw the line between what speech may be stopped and what may not.

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The usual example would be: when it can be objectively demonstrated that particular speech leads to the violation of rights. Some plausible examples are: shouting “fire” in a theatre, leaking military secrets, slander, distribution of pornography to children. I say “plausible”, because some of these are clearer than others.

We should reduce this to two, slander and fire, because child porn-sales and espionage fall under different categories of principle. The whole notion of freedom of speech only makes sense if understood as pertaining to expression of ideas. Leaking military secrets is not the expression of an idea, and may simply be instantiated as smuggling out a sample of a substance, to be replicated by a foreign terrorist lab. So the governing concept for espionage is that there is certain information owned by a government, which the government needs for the survival of those it protects, and that making that information available to an enemy is aiding and abetting the violation of individual rights. But this is not a matter of “expression”, any more than giving a crook a getaway car is a form of “expression”.

As for selling children porn, this falls under the principle that children are not fully rational agents, and that they do not have the right to act as they wish, so they cannot enter into a business contract or in general take responsibility for their lives. Some adult is the custodian of their rights, to the extent that they cannot exercise rational choice themselves. That leaves us with defamation and fire, and these are far from trivial cases, i.e. whereas I don’t have questions about espionage or child porn, the foundation for restricting rights in the other cases is very much in question.

Some (even Western) governments take it one step further and ban “hate speech”. I am not referring to speech which is close to shouting “fire”, but just a text like “Mein Kampf”.

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I think the essential reason is that text has to be read and processed, the reader has enough opportunity to think it through and act thoughtfully.

Your underlying idea here is absolutely right, but I want to point out a problem in making this be part of law. Now first, it’s important to be clear on what restrictions on expression should actually be proscribed – I proposes, hopefully non-controversially, that the canard of shouting “fire” in a crowded theater should not be acceptable form of expression. The reason is exactly that the rational person cannot calmly reflect on whether there is actually a fire: in the presumed (in reality totally bogus) context, theater-goers cannot rationally reflect. They must act immediately or die, and they must act without concern for the well-being of strangers.

This is clearly not the case with defamation or with a racial epithet. There is no metaphysical imperative to kill in response to being called a (____ insert ethnonym) or having been accused of being a thief. But the core idea behind hate-speech laws is that some negative evaluative statements short-circuit man’s free will, making the N-word or H-word be on a par with an emergency declaration that you are about to die.

Now obviously, I’ve come down on a particular side on the defamation debate – I still remain tabula obscura (not quite rasa but similar) as to whether defamation should be illegal in any sense. Given that, I think the basic principle is rather simple. If an expression would cause any temperate, reasonable man to act in a way that threatens their existence or prevents free choice, then that expression can properly be proscribed by law. Otherwise, not. Threats and shouting fire are thus out, defamation and “hate” speech are allowed.

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“Child porn,” as I have heard the phrase used, does not refer to sales of pornography to children. Rather it refers to the production, distribution, sale, and possession of photos of children forced to engage in sex with other children or adults. The evil of child porn, in this sense, is the aggression used against children. Distribution, through sales or otherwise, of such material is not an issue of free speech, as noted already.

Perhaps one of the functions of this topic-thread can be, as an aside, to identify issues which are not free-speech issues but which are mistakenly or maliciously packaged with free-speech issues. Examples mentioned earlier include libel, slander, and speech (such as shouting “Fire!” in a crowded theater) that falsely creates dangerous emergency situations.

Another pseudo-free-speech issue is the leftist argument that any property owner who refuses to allow leftists use of the owners’ property for demonstrations is “censoring” the leftists.

Other pseudo-free-speech issues?

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“Child porn,” as I have heard the phrase used, does not refer to sales of pornography to children.

That is correct. I didn’t mean to put it that way – that was a careless and misleading way of putting it on my part.

Perhaps one of the functions of this topic-thread can be, as an aside, to identify issues which are not free-speech issues but which are mistakenly or maliciously packaged with free-speech issues. Examples mentioned earlier include libel, slander, and speech (such as shouting “Fire!” in a crowded theater) that falsely creates dangerous emergency situations.

Creating panic actually is a free-speech issue, in that it is an example of how freedom of speech should not be thought of as an absolute. On the other hand, the question of whether defamation should be an exception to freedom of expression is not at all a secure conclusion, so before concluding that defamation is not a free-speech issue, we have to see the argument that defamation should be prohibited by law. Hence it would be quite wrong to consider defamation to be a psudo-free-speech issue.

When you are speaking of free-speech issues, are you only considering issues that arise in an essentially Objectivist society, or do you also include issues in modern America? There are many free-speech issues that arise because of improper involvement of the government in what should be the private sphere.

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The main purpose of this topic-thread is to identify and classify attacks on freedom of speech. Another, implied purpose is to help intellectual activists, including me and others in this forum, to prepare for public discussion of these issues. With that in mind, I would like to make two more suggestions. They are related.

  1. As a rough, provisional description, what I mean by free speech is communication between peaceful and honest individuals using their own resources at their own expense. Such a description, like any description of proper behavior within advanced society, stands on many assumptions. Following are three examples:

a. Example assumption: “Communication” here refers not only to the whole process of conveying ideas from one person to another, but also to any step in that process. If I print a flyer and store it in a warehouse, there has not yet been completed communication. If a government burns the flyer before I distribute it, the government has attacked the right of free speech (as well as the right to property, which is a basis of free speech).

b. Example assumption: The individuals involved in communication have not made any contrary, prior contractual commitments – such as a promise to keep secrets.

c. Example assumption: The individuals who are communicating at their own expense might be doing so with materials donated by others.

Many other assumptions might need to be made. Making a lot of assumptions is common when saying anything about the propriety of any particular action in society. Keeping in mind this need for always making and sometimes explicating assumptions, intellectual activists can more easily resist two enemies’ attempts to destroy free speech. The two enemies are:

a. Intrinsicists, especially religionists, who want to impose out-of-context absolutes as limitations on free speech – for instance, “Do not take the Lord’s name in vain.”

b. Subjectivists who hold that, for example, restrictions on freedom of speech are proper in any way the majority chooses to impose them and for whatever rationale – such as the belief that “sensitivity” to others requires limits on “hate speech.”

Both enemies attempt to destroy freedom of speech by either ignoring or attacking the objective, contextual nature of knowledge, including knowledge of when an individual has a right to speak freely and when he doesn’t.

  1. The right to free speech is an absolute, that is, it is a principle applicable without exception within a given context. Of course, the context has to be identified carefully, both at a philosophical level and at a legal level.

The Ayn Rand Lexicon, pp. 2-3, provides excerpts from Ayn Rand’s writings mentioning absolutes, in the metaphysical sense of absolute. Leonard Peikoff, Objectivism: The Philosophy of Ayn Rand, on pp. 23-26 discuss metaphysical absolutes, and on pp. 173-175 discusses epistemological absolutes. Ethical and political absolutes stand on the metaphysical and epistemological absolutes.

The issue of absolutes deserves further discussion, but in some other topic-thread (new or old), not this one.

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I am not a big fan of redefinition, so I disagree with your definition since I don’t think that is what “free speech” means. But since I think I understand your purpose, I will set that aside. One aspect of your account that should be changed is the “between” part in your definition as communication “between peaceful and honest individuals”. Given the nature of government and the conclusion that free speech (as you have defined it) is an absolute right, it also follows that the government should prohibit expression which isn’t free speech, i.e. any form of expression which you have no right to. As an honest and peaceful person, I have the right to speak to other honest and peaceful people (on my own dime, etc.) but because of your “between” characterization I would have no right to address a dishonest person and the government should prevent me from communicating with a dishonest person. The restrictions properly have to do with the expressor, that is, it is necessary for me to be peaceful and honest in order to have the right of expression, and it is not necessary for me to inquire into the character of my audience.

In addition, and historically very important, your definition of free speech may be antithetical to life in an unfree society. Recall the great significance of advocating unpeaceful means of political reform in North America, some 230+ years ago. Your redefinition of “free speech” would hold that the patriots who sought to remove The Crown from their lives and could not peacefully do so had no right to promote the Revolutionary War. I would hold that men have the right to live their lives according to their own values, and that when a dictator takes their lives from them and allows them no means of changing the nature of the government that rules them, then men have no rational alternative but to be unpeaceful. Your redefinition of free speech would not be properly applicable in the context of an unfree society; and yet, certain aspects of the concept are relevant even in an unfree society (for example prohibitions against fraud).

A second point regards your assumption c. about “own expense” including “at their own expense” including donations by others. A purchase is not a donation, and it would be wrong to exclude paid speech from the domain of free speech. This can be resolved by clarifying that “at one’s own expense” means "using property which one has the right to. A donation is given so it becomes rightfully the property of the recipient.

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Earlier I said that free speech means to me: “communication between peaceful and honest individuals using their own resources at their own expense.”

The function of a definition (in contrast to an exhaustive description or catalogue) is to say, in essentials, what the referents of an idea are. A definition for the use of intellectual activists involved in public, rapid-fire debates should be a brief, easy-to-remember and easy-to-state formulation.

If my definition of “free speech” is flawed, as it may very well be, then what would be a superior definition?

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If my definition of “free speech” is flawed, as it may very well be, then what would be a superior definition?

I don’t know at the moment. Relative to the goal of making “free speech” an absolute right, it may not be possible. One simple change would be to replace your ‘between’ with ‘by’, removing any implication that the character of the audience is relevant – the issue should be about the agent. The other question is whether free speech should be defined relative to the overall character of an individual, or with respect to the particular expression – in saying “peaceful and honest individuals” it seems that you are focusing on their character, meaning that an often dishonest person (who is thus not “an honest individual”) would have no right to speak honestly. If you redefine the concept in terms of the particular expression, rather than the moral nature of the speaker, then you disallow fraud and allow thieves to speak honestly (which I argue is the correct outcome). The most difficult part is the question of advocating use of force. In order to know how to redefine “free speech”, we have to know whether it is ever proper to advocate use of force.

One final point that I think you need to refine regards the standards for evaluating actions, which is important in deciding whether to use governmental force to stop a person from saying “You should kill all white men”. One approach to restricting speech is to concentrate on “effect on others”, under the theory that certain forms of expression violate the rights of others, so accordingly, such violent hate speech would be restricted by law. On the other hand, the statement might not be a serious and literal advocacy of genocide – that determination would have to be made contextually, and could not be judged absolutely in terms of the words themselves. Sarcasm and hyperbole are common tools of political rhetoric, so the question is whether the government should outlaw sarcasm – I vote no.

Obviously we can say that actually initiating force against others is not a form of “free speech”, so the question is whether urging the initiation of force is itself the initiation of force. In saying “initiation of force”, I meant that specifically, so it would be quite immoral of a government to prosecute someone for telling women that they have the right to forcibly resist rapists. Now, if the intent is to suppress expressions of The Nation of Islam, to use legal power to silence those who say “All white men should be killed”, you need to be careful in how you define “free speech” so that Farrakhan cannot simply say “I’m just advocating self-defensive use of force, the same way that the patriots who brought about the American Revolution did”.

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I should spell out something I was assuming. First, the context for my definition of “free speech” is a political context, as the first post makes clear. The context is not a general ethical context. Politics is, in part, an application of ethical principles to a certain type of situation, the actions of man within a society that has a government using laws to prohibit fraudulent and aggressive behavior.

So, in my definition when I say “peaceful” in that context, I am thinking of “not aggressive, that is, not initiating force against others.” When I say “honest,” I am thinking of “not committing fraud against others.” Another assumption is that “peaceful” and “honest” apply to the individuals as communicators. I was not implying anything about the general moral character of the communicators.

If there is a clearer, more concise, but more comprehensive definition of “free speech,” I welcome it. So far, nothing better has been offered. In the meantime, I will continue using mine because I know what it means and I can easily apply it to a variety of contexts as polemical challenges emerge in rapid-fire discussion or debate. A definition is not an exhaustive description, but a short-hand way of saying to oneself or others who share the same context – “this is what I mean.”

The main topic of this thread has been identifying various forms of attacks on free speech. That discussion appears to be complete. Discussing the meaning of free speech also has been helpful, but I have covered the key points I wanted to address, for now.

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If there is a clearer, more concise, but more comprehensive definition of “free speech,” I welcome it.

“Free speech” refers to the right of people to express themselves without restriction by the government.

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When I say “honest,” I am thinking of “not committing fraud against others.”

In a political arena, wouldn’t this necessarily result in the government becoming involved in the sphere of ideas by dictating what is and isn’t true? As I see it, your right to free speech entitles you to say things that aren’t true, unless by fraud you mean specifically a form of speech that resulted in an initiation of force.

“Free speech” refers to the right of people to express themselves without restriction by the government.

It’s the right of people to put their ideas into material form, as long as they aren’t violating anyone else’s rights, maybe? I think “restriction by the government” makes it seem like that whole “FIRE!” thing would be legal, because that would be a government restriction. It’s not that there’s no restriction, it’s just the same restriction that’s on all rights: applying it as an absolute means recognizing that other people have rights as well.

But you restricted the meaning of “express yourself” right?

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It’s the right of people to put their ideas into material form, as long as they aren’t violating anyone else’s rights, maybe? I think “restriction by the government” makes it seem like that whole “FIRE!” thing would be legal, because that would be a government restriction. It’s not that there’s no restriction, it’s just the same restriction that’s on all rights: applying it as an absolute means recognizing that other people have rights as well.

Seeing this right as an absolute means that nothing can trump that right, and that could mean my right to yell fire could not be abridged. (It would also allow fraud and treason an absolute rights, as forms of expression). That’s why I reject the idea of free speech, or any other right, as an absolute.

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Seeing this right as an absolute means that nothing can trump that right […]

Would you explain what you mean by “absolute” and “trump”?

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Would you explain what you mean by “absolute” and “trump”?

It means that no fact can lead to a contrary conclusion. This is explained if you see knowledge and values as hierarchical, so that something could be at the top of the hierarchy. If free speech is an absolute right, that means that in every circumstance, you have the right to free speech, and that right cannot be denied on the basis that a particular act of speaking violates someone’s rights. If one person’s right to free expression is subordinate to other rights and obligations – for example, subordinate to your contractual obligations of non-disclosure, or the obligation (which would have to be discussed separately) to not commit treason by revealing military secrets to the enemy during a war. The non-disclosure obligation trumps the right of free speech (I recognise that you’re trying to make this be part of the definition of “free speech”, so I am simply explaining the concepts of “absolute” and “trump”). Or, to put it in other terms, in the context where your speech violates nobody’s rights, then it is an absolute right (and the specification of those rights would make much reference to context such as the existence of contracts, etc), but it is subordinate to the need to respect other people’s rights.

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All rights are absolutes . . . in a particular context. If they aren’t, then you have no way of knowing when you have rights and when you don’t have rights. The only proper restriction on rights is the recognition that you have to respect the rights of others; there can be no such thing as a right to violate rights.

In the context of yelling “fire!” in a theater, you are violating the rights of, at the very least, the theater owner, and quite possibly a number of the patrons by causing a panic (and damages) on his private property, damages that he is now responsible for.

Really, I think free speech is just a derivative of the right to property and can pretty much be applied as such.