Free speech theory explained


There's been a lot of talk this week on the nature of free speech. I'm a very strong defender of free speech, so I felt it would be worth laying out some of the reasons why "the first amendment is not just the law, it's a good idea." While I am not speaking for any particular organization, and am not a lawyer nor giving legal advice, my background includes things like:

  • Being the subject of the first big internet censorship battle, in 1987.
  • Being a plaintiff in ACLU v. Reno, which we won 9-0 in the supreme court, for which I was named a "Champion of Free Speech" by the ACLU.
  • 20 years with the Electronic Frontier Foundation, including 10 as chairman.

Two recent events has caused much debate. A viral video of somebody punching Richard B. Spencer, a man who gathers attention by promoting neo-nazi and whites-first rules has caused people to ask, "Isn't it OK to punch a Nazi?" You see Spencer declaring "Hail Trump" and people doing Nazi salutes in one famous video.

There have also been two attempts by Breitbart writer Milo Yiannopoulos to speak at UC Davis and UC Berkeley that have been met with protests, calls that he be banned from speaking, and cancellations of his talks due to fear of violence. At UCB, a large group of apparent "black bloc" anarchists invaded a peaceful protest with violent acts and resulted in chaos and cancellation of the talk.

For a free speech supporter, the situation is fairly clear. No, it's not OK to punch a Nazi (or in this case a wannabe neo-nazi) simply for what he says or what he is, even if it's so-called "hate speech." (In fact, that we don't punch people for what they say is one of the important things that makes us better than Nazis.) And universities should not distinguish among speakers who are legitimately invited by members of the university community because of the content of their messages, even if it is hugely unpopular, offensive and hateful.

Here's why:

Speech can be evil. But censorship is more evil.

It is a common mistake of those who say, "I am all in favour of free speech, but...." to imagine that we support free speech because speech is pure and can't cause harm. This is the "sticks and stones" philosophy, but if you follow it, then it follows that if you can show that some speech is, unlike most speech, actually harmful, it is then OK to ban it.

While some speech is indeed harmless, important speech is powerful. It evokes change in the world, for good or ill. Speech can do great good and great harm. Consider the book "The Communist Manifesto" which advocates that to bring about an ideal communist society, one must begin with armed revolution and a "dictatorship of the proletariat" that uses draconian methods to work towards the pure goal. That idea has been used to create such dictatorships, and they have all been horrors. These dictatorships (particularly Stalin and Mao) perverted the ideas but used the ideals to justify acts which killed many tens of millions -- leaving the Nazi holocaust in the dust. You can't get much more evil or more proven harm. Yet we don't ban that book.

Lots of speech is evil, but we have found no way to determine that reliably or in advance. As such, giving any entity the power to decide what speech is good and what is evil is a more dangerous proposition than just allowing all speech. For just as the idea in The Communist Manifesto have led to the death of millions, so much of the good in the world is also attributable to other ideas and books, including ones which were banned. We can't grant an agency the power to decide what is good or bad without having them stamp out too much of the good. Nobody has the crystal ball that can do this, and history shows the terrible record of censorship agencies in the places that allow them.

There is also a practical angle. Censorship is only moderately effective. It's probably slightly better at crushing good ideas than bad ones, but either way, for all the pain we get from censorship, it rarely actually stops the bad (or offensive or blasphemous) ideas from getting out. In fact, it is often of negative value, causing more publicity and support for the thing to be censored. (This worked for me when they tried to shut down my newsgroup, and later against Barbara Streisand to the extent that the principle was given her name.) In fact, I strongly suspect that the protests (even the peaceful ones) are doing precisely what Yiannopoulos wants. You think he cares that much about giving a talk to UC students? Or instead about the chance to be banned on the campus famous for the Free Speech movement of the 60s?

If we decide it's going to be OK to punch some people for what they say, but not others, you need an arbiter who decides which speech is evil enough to warrant punching. And having that arbiter is a worse idea than letting the offensive person speak.

We have other ways to deal with bad speech

While there is bad speech, there is some merit to the "sticks and stones" argument in that people must be driven to action by the bad speech in order to get the harm. There, history shows that countering bad speech with good speech is a better, and certainly less dangerous counter-weapon than censorship. The answer to bad speech is more speech and more education.

There is a difference between speech and action

I will often hear people say that clearly some times of speech must be stopped -- "what about shouting 'fire!' in a crowded theatre?"

That example is wrong for two important reasons. First, it's fairly clear that shouting fire like this is not merely speech, but an action. It is the setting of a false fire alarm. It is like pulling the lever on the electronic fire alarm, which is easily seen as an action, and we can regulate actions. It is illegal to do a false fire alarm, particularly if it could cause a stampede.

Secondly, it's a great demonstration of the evils of censorship. That argument became famous in the supreme court case Schenck v. United States. The case revolved around distributing leaflets which opposed the Draft in WWI. The court considered promoting resistance to the draft as akin to shouting fire in a crowded theatre. With our modern sensibility, we now see the debate about the merits of the draft to be an important one in a free society, one where all voices should be heard. Back then, they decided that the "incorrect" anti-draft position was so terrible it was like setting a false fire alarm. The reason why we can't trust any agency to decide what speech is good and what is bad becomes very clear if you examine this case.

Generally, free speech law has allowed actions to be regulated but not speech. So setting a false fire alarm can be regulated. In addition, restrictions on the time and manner of speech can be regulated. They can make a rule prohibiting megaphones, but they can't make a rule which ends up prohibiting megaphones based on what is said through them.

They can also make rules against conspiring to commit crimes. "Let's attack John Smith" is more than speech, it is conspiracy to commit assault. "John Smith deserves assault" is not necessarily conspiracy, and the courts examine the circumstances in the borderline cases to see if the speech was also a threat, incitement or conspiracy. And yes, saying "It is OK to punch a Nazi" is speech when it's an intellectual exercise, but more than speech when it turns into "let's go down to the rally and punch Richard Spencer." To count as incitement, the incited violent acts must be imminent, the path between the words and the violence must be clear and direct.

Hate speech is protected speech, at least in the USA

In many places, there have been efforts to define a special class of speech called "hate speech" and then to ban it. A number of countries, including Canada, have such laws. They are controversial and as predicted above, they have from time to time been used to attack political opponents of those in power rather than just shut down the Nazis and racists the way they are supposed to.

In the USA however, courts have consistently protected hate speech the same as any other speech.

Universities are held to an even higher standard

Many have been upset with universities allowing hate speakers to speak on campus. There are times when a student or professor wants to express an unpopular view, but more uproar comes when an outsider, like Yiannopoulos, is going to give an address.

Outsiders can't generally come to universities, but often they get invites from people who are insiders. Yiannopoulos was invited by student Republican clubs, for example.

In the USA, the 1st amendment stops the government from censoring. The University of California is a state school, but it's also a private institution, so there is debate on to what extent the 1st amendment governs it. (It does not govern totally private entities, such as a private club which can indeed decide what messages are allowed at club meetings.)

I'm not going to speak to that debate; rather I am going to invoke something much older than the 1st amendment, namely the traditions of academic freedom. For centuries, longer than any government or constitution has existed, universities have taken the principles of academic freedom as sacred. These principles declare an even higher bar. Universities are supposed to be the places that welcome controversial and dangerous views, views even the most enlightened governments of the world are afraid of. This has given us concepts like tenure, which assure faculty they will not be fired for expressing controversial views. History has taught us that so many of the most valuable ideas ever put forward began as controversial and banned thoughts in mainstream society.

As such, over and above any 1st amendment duties, universities, if they wish to honour their traditions, must set rules for who speaks based not at all on the message said by the speaker. They can limit locations and times. They can require external speakers to get an invitation from an accredited member of their community, but they must not treat a speaker of one message differently from another.

Indeed, there is an argument that if a speaker is so controversial, even within their own community, that there is fear of violence, that they should go the extra mile to provide extra protection rather than shy away in fear.

This does mean that a few dickheads will get to speak at universities to spout gibberish. That's better than the alternative.

So is it OK to punch a Nazi?

Usually those asking this question point out that had the world punched/fought the real Nazis early on, the great horrors of the 20th century might have been averted. It is important to realize that this is clearly only obvious in hindsight. The people of the day did not have that vision at all. The Nazis, of course, got violent quite early on, so there were plenty of reasons to meet them with force if people had the will do do so. It was not a lack of moral clarity about "punching" them.

Indeed, at the end of the war, when the allies had almost all the Nazis captive, they tried them, and those who could be proven involved in the war crimes were executed or jailed. The others, in spite of killing many allied soldiers and civilians in battle, were set free. Including many members of the Nazi party.

Even when we had actual Nazis to deal with, the answer was not to punch them for what they were or what they said. They were punished if they were involved in the atrocities. Not for talking about them. If the actual victims of the real Nazis could do that, it seems odd for people today to claim to be wiser about it.

While the real Nazis are best known for killing people for their ethnicity and religion, they were also ready to do it for ideology, politics or sexual orientation, and many communists or simple political opponents were persecuted, rounded up and executed for it. Punching people for their beliefs is what Nazis do, not us. Instead, counter their ideology with better ideology, and be wary; for if they take up arms in their cause, it is certainly appropriate to respond with force.


I'm not disagreeing with your points about free speech, but I do think that the space surrounding speech has become significantly more complicated of late, with politicians and other public figures saying things that are not just mistakes, or even lies, but outright and bald-faced falsehoods, and then repeating them so often that their complete lack of basis in reality disappears. And then there's fake news, which again just makes stuff up, but does so in such a way that it's not obviously fiction. Worse, human psychology seems to result in people believing anything that supports their worldview, regardless of whether or not it is even borderline true.

In some respects, this sort of speech is similar to a denial of service attack. The traffic looks legitimate and in some ways is legitimate, but is designed to clog the communication channel rather than anything else. Denial of service attacks can be mitigated through banning mechanisms, but that can't work with speech.

So I'm curious what you'd say about the best way to respond to such falsehoods.

And more to the point, it does seem to be a new issue which opens discussion on a few options. In Canada there is a "false news" law, but it is highly controversial. While few have a problem with its main target (holocaust denial) there are too many example from history of things that were "accepted facts" which only crazy people denied, and the crazy people ended up right.

My hope is that the internet which caused this has a solution. As I said, it's a young problem. Censorship is an old problem, we have centuries of practice to know that it's bad.

One concern is that there are people who sort of "don't mind" getting false news. They want news that confirms their biases. Even if we gave them a tool that makes their browser pop up a "false news" box on top of such sites, they might want to turn it off if they feel the tool has a bias they don't like. At best you might find tools that come from "your side" to warn you about the worst abuses on your own side. Highly political.

In some cases, fake news has led to death threats, perhaps even deaths. I'm thinking of things like Pizzagate and so on.

Just as there is a difference between having an open mind and a free head, there should be a difference between protected free speech when it is a matter of opinion and stuff like Pizzagate. I'm not arguing that all wrong stuff be suppressed (though I would like it if it weren't there), but rather that people could be prosecuted for fake news if it leads to violence or threats of violence (such as when someone has to move house to avoid very real death threats). Yes, the people doing the violence, or threatening it, should be prosecuted, but people who knowingly spread false information with the intent of creating violence shouldn't be able to play the free-speech card.

In Canada there was a false news law. It was quite controversial, aimed at a neo-nazi, and eventually struck down.

One issue is that you then have the government or courts deciding what is false news. Sometimes it's easy. But look at the head of the US government, constantly calling CNN and the NYT fake news.

"But look at the head of the US government, constantly calling CNN and the NYT fake news."

I would have no objection to some court sentencing The Donald for this sort of bullshit. :-)

Sure, courts have to decide, but they have to decide other things as well.

When is it that we stepped through the looking glass into this alternative reality where self described liberals are in favor of violently suppressing the speech of those with whom they disagree? Is faith in the strength of democratic ideals really so weak? Or is this one more example of social media and the 24 second news cycle finding the most contentious topic available and elevating it to an existential crisis?

If rights are not invested first in the individual, then you will always end up with one group forcing their will on other groups. For those that think that is okay, because they feel their group is right, don't forget that elections can result in your group getting voted out of office. Then you are at the mercy of those you hate.

And although individuals in the USA have this protection, it doesn't protect them from all consequences or enable them to speak in a way that causes imminent, real harm to others.

Like many American men (of certain years), I was brought up to never start a (physical) fight, but be prepared to finish it. There are many in this country who feel the same, and they generally speaking have not crossed the line of inflicting physical harm on others for having different opinions. But once you cross that line of laying hands on those you have a disagreement with, you open up a pandora's box of harm that nobody escapes unscathed.

I think your position is a bit extreme. I am in favor of hate speech law as I do not think the standard of proof for hate speech is problematic.
But there certainly are people even more extreme than you arguing that political donations by corporations to politicians is protected free speech.

I would like your opinion on a different kind of speech: massive coordinated disinformation campaigns. Do you think that legislating against these kinds of practices could be a problem for free speech ? I certainly see many reasons why giving propaganda free speech protections can lead to problems for free speech. These massive campaigns ca drown out legitimate free speech. They can also be used to undermine the legitimacy of platforms and media that offer free speech opportunities. One example: corporations financing bogus research institutes to produce false research papers to show that not everyone agrees on the health effects of tobacco and/or to undermine the legitimacy of scientific research in the minds of the public. We already have false advertisement laws in place although they could be seen as a violation of the free speech principle. Would you see a problem in extending those to non-commercial products and media as long as it can be proven that a party engaged in a massive and organized campaign to promote an objectively false fact ?

A number of jursidictions have attempted "false news" laws. They seem good on the surface, but it practice there is a surprising risk of abuse by the state. So one question is whether you can write them in a way that won't, with corruption on the part of the state, create a risk of more harm than good.

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