150 years ago last week, on March 3rd, 1873, the Comstock Laws on obscenity, including birth control and abortion supplies or information, became part of the US Criminal Code. (Bill and Rachel.)
Links and notes for ep. 462 (PDF): http://arsenalfordemocracy.com/wp-content/uploads/2023/03/AFD-Ep-462-Links-and-Notes-March-1873_-Comstock-Laws.pdf
Theme music by Stunt Bird.
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Kent Greenfield adds his voice to the growing chorus challenging the currently prevailing conventional wisdom in the United States on unfettered hate speech and how to deal with it, in a new piece for The Atlantic:
The way we interpret the First Amendment need not be simplistic and empty of nuance, and was not always so. The Supreme Court unanimously held over eighty years ago that “those words which by their very utterance inflict injury … are no essential part of any exposition of ideas.” And in 1952 the Court upheld an Illinois statute punishing “false or malicious defamation of racial and religious groups.” These rulings, while never officially reversed, have shrunk to historical trinkets. But they mark a range of the possible, where one can be a staunch defender of full-throated discourse but still recognize the difference between dialogue and vomitus.
[…]
Counterspeech is exhausting and distracting, but if you are the target of hatred you have little choice. “Speak up! Remind us why you should not be lynched.” “Speak up! Remind us why you should not be raped.” You can stay silent, but that internalizes the taunt. The First Amendment tells us the government cannot force us either to remain silent or to speak, but its reliance on counterspeech effectively forces that very choice onto victims of hate speech.
[…]
The First Amendment tells us that threats are punishable, but only if they are targeted at specific individuals. Burning a cross on the front lawn of a family’s home can be a threat; burning one in a field outside of town is not. The latter is protected; the former is not. The secret of converting threats into protected speech, says the First Amendment, is to aim them at more people.
Turkey has long discouraged free speech that targets (“insults”) public officials, even relatively low-ranking ones. However, the laws also have specifically “protected” the country’s president from insults for nearly a century, extending additional penalties to offenders. Its enforcement, however, rises and falls with the times. It’s getting worse recently, with jokes and poems on social media landing various government opponents and celebrities in prison. The Associated Press reports on the escalation:
There’s no monarch in democratic Turkey — but you might not know it watching the news these days.
It has become as easy to get jailed for offending the country’s paramount leader, Recep Tayyip Erdogan, as it is in countries where lese majeste laws forbid insults to royals.
[…]
The law against insulting the president has been on the books for decades and is a legacy of the veneration reserved for Turkey’s founding father, Mustafa Kemal Ataturk. But before Erdogan became president, legal analysts say, the law was used far less aggressively. Kerem Altiparkmak, a lecturer on human rights issues at Ankara University’s political science faculty, shared with AP a spreadsheet documenting 43 known cases involving some 80 people in the half-year that Erdogan has been president. That compares to only a handful of cases that were filed during former President Abdullah Gul’s seven-year term.
The reaction to Brendan Eich’s firing at Mozilla shows U.S. conservatives learned little from the “Duck Dynasty” controversy.
If you missed it, the prominent computer programmer Brendan Eich recently became (very briefly) the CEO of the Mozilla Corporation (which makes the Firefox web browser among other things). After much protest — including, notably, within the company at both employee and upper management levels — he was fired due to his contributions to the extremely hateful 2008 California Proposition 8 campaign to ban same-sex marriage in the state, in line with a viewpoint he still holds today.
This immediately prompted outcry by many white, (mostly) male, cisgender, heterosexual Christian conservatives who are convinced that — after centuries of de facto rule over the United States — any time one of them faces consequences for expressing an objectionable opinion, the world is ending in a torrent of unendurable oppression against them (even though they still remain very powerful in a majority of states right now).
In this outcry defending Mr. Eich they were joined by a number of liberal apologists who seem to confuse market forces, both inside and outside the company, with “censorship.”
Of course, no one said he couldn’t express or hold the bigoted views that he holds. They just said there would be consequences to holding them as the CEO of that particular company.
Considering that, in many U.S. states right now, people can still be fired for being gay without legal recourse, it hardly seems unreasonable to apply pressure on a prominent executive who holds objectionable and damaging views.
But more importantly, as I said before with the Duck Dynasty blow-up — wherein the cable network (temporarily) suspended (before restoring) the show helmed by a raging racist and homophobe and his hateful legion fans cried foul — according to the American understanding of free-speech, this cycle is exactly how the system is supposed to work. Just as their beloved Founding Fathers and Constitutional Framers intended.
Let’s circle back to this excerpt from my popular December post “First Amendment refresher (Duck Dynasty edition)“:
In contrast [with Europe], the United States has developed a much more libertarian approach to freedom of speech, based on the 18th century ethos of the Framers. They believed in concepts like the marketplace of ideas, where viewpoints could be traded on a free exchange. Early concepts from Adam Smith’s late 18th century work on the study of economics and trade came to be seen as apt metaphors for how ideas circulate.
So just like competition allows some providers of goods & services to rise to the top in real markets, the libertarian view on speech says that the best solution to problems like hate speech is to let it compete freely with counter-speech — rather than government intervening as regulators — and the rationality and supremacy of less horrid counter-speech will prevail.
Thus, if the public responds angrily to some idiot’s hateful comments, this is not an infringement of free speech. It is the system “working” according to the American principles of how the intellectual free market is supposed to work.
So as you can see, Brendan Eich made a publicly reported political donation (free speech, according to the U.S. Supreme Court), and then his employees, board of directors, and customers expressed their “counter-speech.”
Their counter-speech prevailed in this instance, but it often doesn’t, which is actually why many communication theorists have suggested the American system of handling objectionable speech is pretty flawed in practice (especially compared to systems that intervene more aggressively against hate speech by members of the majority against those in the minority). Usually, the ruling group drowns out the objections of everyone else.
Funny how many conservative Republicans get up in arms when liberals use market pressure successfully to stop the expression of certain views…but it’s ok when they do it, for example, against the so-called “liberal media” when they don’t like a sit-com’s “agenda.”
As Markos Moulitsas put it, “Brandon Eich was a victim of market forces, conservatives should applaud”:
Of course this is intolerance. Would Sullivan rush to this guy’s defense if it turned out he was a Grand Wizard in the KKK? Of course not. We are allowed to be intolerant of people who operate outside the bounds of civil decency. This wasn’t governmental action infringing on any Constitutional rights. This was Mozilla developers saying they refused to do work with a bigot, private websites blocking access to the Firefox browser because they refused to do business with a bigot, and employees of the firm speaking up because they refused to work for a bigot.
In short, it was the free market expressing itself. Eich was perfectly within his rights to stay at Mozilla, but he would then face a hostile market and eventually faced the reality that he couldn’t do his job in that environment. The free market spoke, and a free market enterprise was forced to react.
Even these days, you don’t have to go far to find a Christian conservative telling you that it is their “right” to be “intolerant of immoral behavior” (an actual statement I’ve heard). So, apparently, it’s 100% acceptable for them to be avowedly “intolerant” of LGBT folks, but it’s in no way acceptable for other people to be intolerant of them in return?
It’s almost as if the “free market” and “free speech” were only awesome when they were able to keep the ethnic minorities, gays, and women from participating. The moment it actually starts to become genuinely freer and slightly more balanced, then they’re suddenly being oppressed.
I don’t really know what “Duck Dynasty” is or who the guy in question is, but that’s not really going to be the point of the post. Other people have already done more than enough to critique his highly problematic comments to GQ, which ran the gamut from revisionist racism to antisemitism to homophobia. I’ll leave it to those folks to tackle the content of the remarks.
I’m more interested in the crazed reaction by some U.S. conservatives to the man’s indefinite suspension from his TV show as a result of his bigoted statements.
In particular, comments from Republican Gov. Bobby Jindal of Louisiana — who seems far too eager to embrace this hateful man as a fellow Louisianan — caught my attention because of how wildly misguided they were. Jindal referred to the suspension as a “messed up situation.” He added:
“In fact, I remember when TV networks believed in the First Amendment. It is a messed up situation when Miley Cyrus gets a laugh, and Phil Robertson gets suspended.”
Setting aside the weirdly off-base comparison to tasteless (and appropriative) but not crazily bigoted performance by Cyrus earlier this year, we immediately arrive at the straw man claim implying that TV networks don’t support the First Amendment anymore, but once did.
Let’s cross that argument off right away: the networks are not suppressing someone’s right to be heard — he got heard already, in GQ — and this isn’t a news program breaking news that the powers that be might want held under wraps. It’s an entertainment program and his comments weren’t really in line with the show’s core mission which I presume involves hunting ducks on reality television (or establishing a heritable leadership system based on duck lineages?). So that’s a misdirected argument.
And now we arrive at the second argument, that the first amendment is being violated by suspending this man for his vile comments. This is, simply put, mind-bogglingly idiotic.
The First Amendment to the U.S. Constitution states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Curiously, it does not say, “Privately owned television companies must give everyone air time to say whatever they want to, without repercussions, and must not suspend any of their employees for expressing views the network disagrees with.”
Conservatives, Jindal among them, seem hell-bent on trying to convince everyone that “Freedom of Speech” under the Bill of Rights means anyone has the right to say anything, anywhere, at any time, with zero consequences or rebuttal.
Most frequently, of course, we hear this trotted out in opposition to “political correctness” — the closet bigot’s disparaging term for showing a modicum of sympathy toward others’ feelings and life experiences. Despite the extreme comments made by this Duck Dynasty guy, he’s getting the same defensive treatment, even though government is nowhere to be seen in the equation.
For whatever reason, conservatives are under the mistaken impression that if you say something, whether it be factually wrong or socially offensive, no one is allowed to correct you or dismiss you due to the First Amendment. In fact, as is quite obvious from the text of the amendment, the only party restricted from limiting your free speech is the government. Everyone else is free to respond and even punish you, if in a position to do so.
This is not a mistake or loophole. This is very intentional in the design of the amendment and its subsequent interpretation by many a Federal jurist.
There are essentially three factors to be balanced on the issue of freedom of expression in any scenario. It’s impossible to accommodate all three fully, and so we weigh them against each other, as a society, for both general purposes and specific cases. These factors are:
The first factor is always present. Usually only one of the other two is a major consideration at a time, in specific cases.
The second is pretty self-explanatory. It’s the one about whether government can restrict your expression/speech if it will endanger the public. We weigh that factor based on how immediate the threat is, what kind of danger would arise from it, etc.
While it’s not very common here in legal cases, other liberal democracies have placed great weight on the third point. Europe, for example, has many laws against hate speech. The premise is that hate speech does not occur in a vacuum, but rather within a cultural context, and is very damaging — mentally, emotionally, etc. — to the targeted population. Hate speech, by this reasoning, is thus an infringement of the rights of others to be left alone and not be psychologically abused by horrible bigots constantly.
Therefore, those societies have empowered their governments to restrict freedom of speech in the areas of hate speech and other inflammatory categories. They believe that government is the best vehicle for curbing such speech and maintaining social harmony.
In contrast, the United States has developed a much more libertarian approach to freedom of speech, based on the 18th century ethos of the Framers. They believed in concepts like the marketplace of ideas, where viewpoints could be traded on a free exchange. Early concepts from Adam Smith’s late 18th century work on the study of economics and trade came to be seen as apt metaphors for how ideas circulate.
So just like competition allows some providers of goods & services to rise to the top in real markets, the libertarian view on speech says that the best solution to problems like hate speech is to let it compete freely with counter-speech — rather than government intervening as regulators — and the rationality and supremacy of less horrid counter-speech will prevail.
Thus, if the public responds angrily to some idiot’s hateful comments, this is not an infringement of free speech. It is the system “working” according to the American principles of how the intellectual free market is supposed to work.
In pure free market economics, if people vote with their wallets against one company’s product, it’s meant to fail. Likewise, if people vote with their wallets against a TV network keeping someone on the air and the network pulls that person, it means that that person has failed. The free market has spoken.
Saying that a network shouldn’t pull someone for expressing hate speech because it’s counter to American ideals of freedom of expression is completely wrong. Saying it’s counter to the First Amendment is just totally irrelevant as well as being wrong.
We can and should have a debate at some point about whether our “marketplace of ideas” approach to hate speech is really the best course — it does take a pretty severe toll on the minority and disempowered populations who take the brunt of the hate, in contrast with the comfortable intellectual exchange between unoppressed white, straight, cis males — but for the moment, this is the system we have and, in this case at least, it more or less worked as intended.
But it only works if the public is allowed to do its job and shoot down and de-fund terrible hatemongers to punish them for their views. When someone gets suspended or fired by the private sector for expressing hateful views publicly, that’s the outcome we’re supposed to see. That’s not a “messed up situation.” That’s the enforcement mechanism.
Freedom of speech in the United States just means the government (usually) can’t tell you to be quiet. It has never meant freedom to say stupid things without consequences.
