Trolling, Free Speech and the Law

In summary: "rights are already unequal and the government would use any changes to be a dictatorship". This after acknowledging that other democracies have more stringent hate speech rules and function perfectly fine. It's a sort of double-ended "America is special" argument.

From the artcle:

"...Many have asked in particular why the ACLU, of which I am national legal director, represented Jason Kessler, the organizer of the rally, in challenging Charlottesville’s last-minute effort to revoke his permit...

...As ACLU offices across the country have done for thousands of marchers for almost a century, the ACLU of Virginia gave Kessler legal help to preserve his permit. Should the fatal violence that followed prompt recalibration of the scope of free speech?

People who oppose the protection of racist speech make several arguments, all ultimately resting on a claim that speech rights conflict with equality, and that equality should prevail in the balance.* They contend that the “marketplace of ideas” assumes a mythical level playing field. If some speakers drown out or silence others, the marketplace cannot function in the interests of all. They argue that the history of mob and state violence targeting African-Americans makes racist speech directed at them especially indefensible. Tolerating such speech reinforces harms that this nation has done to African-Americans from slavery through Jim Crow to today’s de facto segregation, implicit bias, and structural discrimination. And still others argue that while it might have made sense to tolerate Nazis marching in Skokie in 1978, now, when white supremacists have a friend in the president himself, the power and influence they wield justify a different approach...

...The argument that free speech should not be protected in conditions of inequality is misguided. The right to free speech does not rest on the presumption of a level playing field. Virtually all rights—speech included—are enjoyed unequally, and can reinforce inequality. The right to property most obviously protects the billionaire more than it does the poor...

...But the marketplace is a metaphor; it describes not a scientific method for identifying truth but a choice among realistic options. It maintains only that it is better for the state to remain neutral than to dictate what is true and suppress the rest. One can be justifiably skeptical of a debate in which Charles Koch or George Soros has outsized advantages over everyone else, but still prefer it to one in which the Trump—or indeed Obama—administration can control what can be said...

...After all, if we were to authorize government officials to suppress speech they find contrary to American values, it would be Donald Trump—and his allies in state and local governments—who would use that power. Here is the ultimate contradiction in the argument for state suppression of speech in the name of equality: it demands protection of disadvantaged minorities’ interests, but in a democracy, the state acts in the name of the majority, not the minority. Why would disadvantaged minorities trust representatives of the majority to decide whose speech should be censored?

...As Frederick Douglass reminded us, “Power concedes nothing without a demand. It never did and it never will.” Throughout our history, disadvantaged minority groups have effectively used the First Amendment to speak, associate, and assemble for the purpose of demanding their rights—and the ACLU has defended their right to do so. Where would the movements for racial justice, women’s rights, and LGBT equality be without a muscular First Amendment?

...When white supremacists called a rally the following week in Boston, they mustered only a handful of supporters. They were vastly outnumbered by tens of thousands of counterprotesters who peacefully marched through the streets to condemn white supremacy, racism, and hate. Boston proved yet again that the most powerful response to speech that we hate is not suppression but more speech."

That's but a selection of quotes. I encourage you to read the full article, it's well written and makes excellent points.

I think it shot itself in the foot by acknowledging that other countries exist that have stricter laws, then continuing blithely on.

Consider Poland and Hungary; the European traditions of giving the state greater authority over speech have definitely had a negative impact there. Meanwhile Germany's military is still littered with crypto-neonazis, despite repeated attempts to completely remove the influence of the old Wehrmacht on the modern German military.

I'd also argue that it's bad practice to apply a single standard to every country; the political culture and traditions of the United States is different from those of Germany which is different from that of Russia and so on and so forth. Applying the same model to our system could and probably would have dramatically different effects. Chiefly because, when speech has been suppressed in the context of the United States, the crackdown has typically been directed against the left, going back to the Antebellum South and the McCarthy era.

edited 27th Aug '17 2:58:35 PM by CaptainCapsase

So we have two cases where you can say it's worse than the current US situation. And one where it's likely the case regardless of free speech nearly everywhere.

How many other countries are there that don't have that problem?

It's definitely worse practice to say "other places can do this" and then totally ignore that. It invalidates the whole argument when you've already admitted that it can work!

edited 27th Aug '17 2:59:21 PM by RainehDaze

Yes, but you have to consider what about the countries that don't have these problems makes it work, and what factors would cause it to turn out badly. In the United States, the institutions that would be given the task of arbitrating speech are most definitely inclined to sympathize with the right wing in the United States, especially when we're talking about the American police and criminal justice system, doubly so when it comes to Southern states.

Red states would absolutely use the precedent to target the speech of minorities and leftists, even if blue states enforced it equitably that would cause far more harm than good, due to the fact that many of the states with the most vulnerable minority populations are also solidly red thanks to various extensive voter suppression and gerrymandering.

edited 27th Aug '17 3:07:22 PM by CaptainCapsase

If the USA government truly cannot be trusted to ever have hate speech laws...then that just proves that the problem is not hate speech laws in and of themselves. It's as Ambar said in the past: if you have a bad and corrupt government, things are going to suck regardless of the laws on paper.

That article isn't really a defense of free speech or even a condemnation of hate speech laws. It's just arguing that America is too fucked up to handle hate speech regulation.

America is too decentralized to responsibly handle that sort of stuff responsibly (moreover, in the long term, I don't particularly trust the state in general to handle that responsibly), and our political culture enforces that decentralization.

You act like that would be a new thing, we're already seeing state sponcered supriesson of the right to free speech of minorities and leftists, that's already happening.

But fine, let's just introduce hate speech laws in the blue states, how about that?

Which just reinforces the idea that hate speech law isn't the problem. If a Red State's government is likely to abuse hate speech law to fuck minorities, the problem isn't the hate speech law. The problem is the Red State.

edited 27th Aug '17 4:24:51 PM by M84

What I'm saying is that creating that precedent at the federal level would likely make this long standing tradition of state sponsored suppression of speech directed at our society's more vulnerable members even worse than it already is. Note that such a law in blue states would get challenged in the supreme court, and were it to be upheld, it would carry the same consequences in red states as a law at the federal level.

Yes, and there's pretty much nothing that can be done to prevent the sort of people inclined to abuse this sort of state authority from coming to power every so often, particularly in the United States. What can be done is not to empower the state to carry out such abuses in the first place.

Incidentally, I am in agreement with people here that outright violent speech, ie calling for genocide in unambiguous terms shouldn't be tolerated. But in general, I believe, and I would argue that history strongly supports this opinion, that giving the state a power you aren't prepared to see used against you is extremely shortsighted. If you broaden your horizons beyond the present decade where authoritarianism in Europe is limited to the Eastern part of the continent, there are innumerable examples of Europe's weaker traditions of freedom of speech aiding the rise of oppressive regimes. While things are working right now, in the fullness of time, European countries that currently don't face such an issue will have to deal with leaders inclined to abuse the power of the state, much like the situation the United States is now.

Now, in most other regards, European traditions of democracy are as strong if not stronger than in the United States, so it's likely they'll manage to weather the storm when faced with that eventuality. But designing institutions on the assumption that the people holding power will always be at least somewhat trustworthy, rather than designing them around the assumption that the very nature of power results in its abuse is Tempting Fate in the long term.

edited 27th Aug '17 4:55:25 PM by CaptainCapsase

A bad government will throw people in jail. Should we eliminate prisons?

A bad government will abuse the tax code. Should we eliminate taxes?

A bad government will confiscate property. Should we eliminate eminent domain?

If you have an authoritarian government, the problem is that you have an authoritarian government. The problem is not the laws that are on the books because under a sufficiently authoritarian state the law is meaningless. If the act they want to perform isn't on the books they'll simply a) add it or b) do it extrajudicially.

Poland and Hungary have not become authoritarian states because they made it illegal to be a Nazi. Quite the opposite, in fact. To suggest a link between making it illegal to criticize the government and making it illegal to call for the murder of minorities is to make a facetious argument, at best.

Right. That's the source of Nazism--laws that made it illegal to express racial hatred and calls for genocide. Somehow I always forget that.

Good thing I don't plan to call for genocide any time soon then. Saying "we shouldn't make it illegal to be a Nazi because one day you might find it illegal to be a liberal" is like declaring that "we shouldn't make theft illegal because one day you might find it illegal to borrow from friends". It's a nonsense slippery slope argument.

edited 29th Aug '17 9:58:32 PM by AmbarSonofDeshar

Sshhh! You'll attract the lolbertarians!

I don't think we need to worry about that; the title of the thread would be irresistible bait in the first place.

@Ambar: The state should not have the power to arbitrarily imprison people, and prisons themselves should be heavily regulated, and used as a last resort over more rehabilitation focused options.

Taxes should be levied as much as possible with the consent of at least an approximate majority of those being taxed; preferably an electoral mandate but opinion polling is good enough for practical purposes.

As far as eminent domain goes, it's used for sports stadiums which decisionmakers have a financial interest in as often as its used for important infrastructure projects. The former is unacceptable (voluntary buyouts are of course fine), the latter is necessary but those being displaced are of course entitled to dispute it in court.

At the end of the day though, being unfairly taxed, or even be forced to sell my house (if I had one) at below market value for some politician's pet commercial development is an abuse of power I'm prepared to live with, and isn't something that aids in the further consolidation of power very much. Being able to limit speech outside of some very specific boundaries is, on the other hand, a significant aid to someone with dictatorial ambitions.

It doesn't matter in the slightest whether you're banning criticizing the government or banning "expressing hatred of a protected class." The people inclined to abuse power * don't care what the intention of these laws are, just how it can be used to justify consolidation of their own power. You can see the beginnings of this in the far right's appropriation of the (largely accurate in its original leftist context but patently absurd in its usage by the right) victimization narrative typically associated with the left, and sooner or later you'll have to deal with the eventuality of having that sort of person (or more accurately group of people) in power, at which point they'll promptly use false equivalences like the one you're pointing out as a justification to enact policies which are deeply harmful to those such laws were designed to protect, and/or to expand their own personal power and authority. That's already happening with the Trump administration in fact, and there's already attempts to criminalize certain kinds of speech by protesters being floated by GOP legislators that's clearly going to be used primarily against the left. Now, once the left ends up back in power from the inexorable progression of politics, it can promptly reverse policies established under a regressive government, but in all likelihood those policies will simply be enforced against the new government's political enemies, not eliminated entirely. It's very difficult to roll back expansions of state power, and very easy for each opposing government to escalate things further in the names of winning an increasingly desperate political struggle, so what I'm talking about isn't a slippery slope, it's a Positive Feedback loop, an extremely common system in both natural and sociological systems.

A well designed (from a public welfare perspective, which is tangential to the actual societal function of the state, which is to benefit the ruling clique, whoever that may be at a particular time) institution is not built around the assumption that it will be staffed by decent and honest people, because the reality is people are only as honest and decent as their surroundings allow them to be. Believing your own country is too enlightened to end up in precisely the sort of situation the United States is currently in demonstrates the very same sort of Hubris that blinded US policymakers to the crisis unfolding right under their noses. Both history and the state of the modern world demonstrate the reality that tyranny, authoritarianism, and illiberalism are the rule, not the exception, and it is all to easy for a well intentioned policy under one government to become an instrument of state terror under another.

* And the reality is, you're most likely one of them, along with me and about 85% or so of the people on the thread: tyranny and corruption are as institutional a problem as they come.

edited 30th Aug '17 4:43:36 AM by CaptainCapsase

I think you missed the point: anybody willing to take any country over for personal profit and gain... isn't going to care what rules are on the books. *points at Trump* Mostly because they won't know about most of them.

Bad government makes bad law, regardless of what was there before. Because they ignore it.

And Trump is facing serious pushback, because he's violating many deeply established norms. There's massive systemic problems with American institutions, particularly when it comes to issues of race, but in regards to speech restriction of the lack thereof, I'd argue America does just fine; far right groups are consistently outnumbered by huge margins by counter-protestors, and despite many of them falling back on claims of paid protestors, the impact of having your fellow citizens coming out to stop your hateful rallies rather than the police can be quite striking from what I've read from a few cases of reformed neo-nazis and the like. It's also one of the few areas where the civic engagement of the American public isn't horribly lacking.

I should also add, in regards to a point that went unaddressed in my last post, that differences in European and American traditions of free speech go beyond simply hate speech laws; defamation and libel are a hell of a lot easier to win from what I understand, and in the U.K. In particular that's led to some pretty high cases of private individuals bullying reporters with defamation threats in a way that simply isn't possible in the US. Western European countries haven't become totalitarian hellholes because of greater speech restriction, but neither has the United States: the Trump administration is failing across the board in its bid to consolidate executive power. There's very real concerns about the increasing role of the military in running what are supposed to be civilian institutions under Trump, but that's a completely separate concern from laws concern speech and expression.

Im entirely in agreement with you, Captain, well said.

@Euo: Saying, that the law and legal tradition cannot restrain officials inclined toward authoritarianism is an argument against restricting speech, not in favor of it.

edited 30th Aug '17 8:28:09 AM by DeMarquis

Honestly, the arguments in favor of free speech fundamentalism sound very similar to the arguments in favor of free market fundamentalism. And are about as nonsensical. The only thing that sets them apart is that free speech has a Constitutional amendment backing it, so we've come to see it as sacrosanct. Thus it becomes more difficult to objectively review it and consider if there is a need for at least some regulation. Like say, a ban on genocide speech.

You've missed the point entirely Cap.

The same thing applies to literally all other laws. The people inclined to abuse power don't care about the fact that they aren't supposed to imprison you arbitrarily. The people inclined to abuse power don't care about the fact that they aren't supposed to use the tax code as a weapon. The people inclined to abuse power don't care that eminent domain isn't supposed to be used to seize land from the desperately poor. The people inclined to abuse power will, as recently demonstrated, not care that the pardon system wasn't put in place to save people guilty of criminal misconduct. I guess we better throw out the pardon system.

Once you assume an intent to abuse power on the part of the government the law is irrelevant. An abusive government will simply manipulate the law to get what it wants, or in other cases, outright ignore it. Nothing you are suggesting will protect a single person from a dictatorial regime. So we might as well do what we can to protect ourselves from our fellow citizens.

No it isn't. Hate speech laws are directed at citizens, not the state.

Comes from the same deep rooted sense of privilege too.

edited 30th Aug '17 9:21:23 AM by AmbarSonofDeshar

Or abuse Freedom of Religion to discriminate against women and LGBT people. Which isn't an argument against freedom of religion.

Every law can go too far or be abused. If a law isn't already an abuse upon it's inception and intent, it's not bad. Possible abuse isn't an argument against it. Or you would need to scrap all laws.

So then, what makes hate speech laws qualitatively different from all the other laws ever? Because if there is nothing, then there's no argument against it.

It's by no means free speech fundamentalism if we already allow that explicit threats of violence shouldn't be legal, and implicit threats merit further investigation, and that's the position I hold. The issue arises when going beyond that, you find yourself in territory that is completely subjective (and thus fundamentally arbitrary) and hopelessly partisan.

Becauss the fundamental underlying principle behind the notion of freedom of speech in the first place there's a difference between words and actions, enough that we should try to avoid throwing people in prison for expressing thoughts when there's not a direct indication of illegal action in the wording. Establishing that as a norm makes it significantly harder for the opposition to, when inevitably the tables are turned, go ahead and start throwing you or I in jail for words. Norms like these are oftentimes far more consequential than the actual wording of laws when it comes to the functioning of institutions.

Hateful but nonviolent speech does however justify law enforcememt monitoring an individual and scrutinizing their actions for actual breaches of the law, as there is probable cause then to suspect that they might go on to commit a crime.

If you reject that notion, and argue that hurtful and hateful words should be regarded as literal violence, then you legitimize people retaliating against spoken words with physical violence, which swiftly escalates.

And finally, it's not at all clear to me that European style hate speech laws actually do anything to contain these groups. In no small part because they're seemingly unenforceable without using measures that legitimately could be hijscked to build an authoritarian power base, ie a China-esque online censorship system, which even in China itself is easy to bypass.

edited 30th Aug '17 11:22:52 AM by CaptainCapsase

There are no "free speech fundementslists" on this thread. No one here has reified the principle above all other legal or moral principles. Everyone here, including myself, have acknowledged the necessity of restrictions on free speech. We are just quibbling over what those should be.

edited 30th Aug '17 10:29:41 AM by DeMarquis

I don't believe that censorship will inevitably lead to an abuse of power by the government. I believe that censorship (when taken to sufficient extremes, such as outright banning entire topics or opinions) is an abuse of power.

edited 30th Aug '17 10:29:01 AM by Corvidae

Agreed