Well here we have an intersectionalist article: the intersection of New York Times wokeness with the intersection of New Yorker wokeness. For Andrew Marantz, who wrote this NYT opinion piece (if you read it, it looks like a Sunday Magazine piece), is a New Yorker staff writer whose bailiwick, according to his profile, is “technology, social media, the alt-right, and the press [and] comedy and pop culture”.
I read the piece several times, and am not sure what he’s getting at. First he notes that speech can be damaging, then admits that forms of damaging speech are already prohibited by the courts, then adds that he’s not in favor of ditching the First Amendment. He then complicates matters by claiming that “hate speech” on social media should be regulated, and then ends by implying that yes, perhaps the First Amendment itself should be modified by taking into account the Fourteenth Amendment—the amendment that guarantees all citizens will receive equal protection of the laws. In other words, he’s calling for revisiting the courts’ construal of the First Amendment. If you don’t think so, look at the title of his piece, though that title may have been confected by an editor.
Marant’s op-ed what they call a “hot mess” (see photo below), and suffers severely from not specifying what counts as “hate speech”, as well as a slipperiness as he tries to avoid saying explicitly what I think he really means. Click on the screenshot to read it:
Marantz begins, as is usual with these pieces, by saying that words can be harmful.
Having spent the past few years embedding as a reporter with the trolls and bigots and propagandists who are experts at converting fanatical memes into national policy, I no longer have any doubt that the brutality that germinates on the internet can leap into the world of flesh and blood.
The question is where this leaves us. Noxious speech is causing tangible harm. Yet this fact implies a question so uncomfortable that many of us go to great lengths to avoid asking it. Namely, what should we — the government, private companies or individual citizens — be doing about it?
Yes, they can be harmful if you consider “tangible harm” to encompass someone being offended, but they can also be harmful if they inspire violence, foster child abuse via promulgating child pornography, spread lies that damage a reputation, constitute personal harassment, or make false claims, as in advertising.
Fortunately, the courts have considered all these forms of harm, and have taken them into account as limiting freedom of speech—save that the only abrogated speech that leads to violence should be speech “directed to inciting or producing imminent lawless action” that is “likely to incite or produce such action”. (See here for a list of First Amendment exceptions.) I see this list as pretty comprehensive, but extending it to cover “hate speech”, a slippery concept that has been seen as including all kids of speech that we see as debatable but permissible—affirmative action, immigration, abortion, the use of pronouns, how transgender people should be classified in sports competitions, whether Israel should exist, and so on—is not something I favor.
But Marantz doesn’t discuss any of that tangible stuff. He simply makes dark noises about how free speech should be balanced against other rights:
Free speech is a bedrock value in this country. But it isn’t the only one. Like all values, it must be held in tension with others, such as equality, safety and robust democratic participation. Speech should be protected, all things being equal. But what about speech that’s designed to drive a woman out of her workplace or to bully a teenager into suicide or to drive a democracy toward totalitarianism? Navigating these trade-offs is thorny, as trade-offs among core principles always are. But that doesn’t mean we can avoid navigating them at all.
Earth to Mr. Marantz: driving a woman out of her workplace or bullying a teenager into suicide have ALREADY been ruled by the courts as limitations of free speech that violate other rights. As far as “driving a democracy toward totalitarianism”, does Marantz seriously think we should place limits on that kind of discussion? When I was at Williams College two days ago, I was asked by a student why, as a determinist, I should favor democracy as the best form of government, as people’s wills (and, I presume, votes) are so easily manipulated by others, distorting their own “free will”. I could have said, “Well, yes, sometimes a benevolent despotism might be better”. And even though I don’t agree with that, for of all imperfect forms of government, democracy is the least imperfect, Marantz implies that such a statement might be construed as “driving a democracy toward totalitarianism”. You could also characterize people campaigning for Trump as falling in that class. Give me a break! If our democracy can’t stand criticism and calls for authoritarianism, what kind of democracy is that?
Then Marantz pulls back a bit:
I am not calling for repealing the First Amendment, or even for banning speech I find offensive on private platforms. What I’m arguing against is paralysis. We can protect unpopular speech from government interference while also admitting that unchecked speech can expose us to real risks. And we can take steps to mitigate those risks.
He then offers some modifications, like Facebook hiring more “content moderators” and paying them better. Yes, that sounds good, but what content should be moderated? Marantz alludes to white supremacists, Alex Jones, and Milo Yiannopoulos. But companies already have the right to ban such people. Who doesn’t is the government, for that’s what the First Amendment is all about. Granted, I think that all universities, whether private or public, should adhere to the courts’ construal of the First Amendment, but remember that the First Amendment says this:
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. . .
Congress shall make no law. That says nothing about Facebook, Instagram, or even this website. And if that is all that Marantz is calling for—judicious examination of the speech policies of private entities—well, fine. I think that people should be careful about restricting speech, but private corporations and establishments have a right to do that, by and large. I, for one, have no problem with Milo Yiannopoulos having a Facebook account. After all, he’s never called for violence against people, and what violence has resulted from his words, as occurred in Berkeley, has come from those who have rioted in opposition to his appearances. In other words, the violence came from people opposed to free speech.
At the end Marantz hints, without saying so directly, that maybe the First Amendment needs to be reined in a bit. For example, he seems to agree with John Powell, a law professor at the University of California:
[Powell] thinks that some aspects of our current First Amendment jurisprudence — blanket protections of hate speech, for example — will also seem ridiculous in retrospect. “It’s simpler to think only about the First Amendment and to ignore, say, the 14th Amendment, which guarantees full citizenship and equal protection to all Americans, including those who are harmed by hate speech,” he said. “It’s simpler, but it’s also wrong.”
Okay, if Powell thinks that “hate speech” should be prohibited, and if Marantz agrees, what forms of hate speech should be banned? Who shall do the banning? And what do they mean by “harm”? Psychological harm? Hogwash! Physical harm? That’s already something that the courts have ruled on.At the very end Marantz’s mask slips a bit more:
I should confess: I used to agree with the guy I met in the coffee shop, the one who saw the First Amendment as an all-or-nothing dictate. This allowed me to reach conclusions with swift, simple authority. It also allowed me to ignore a lot, to pretend that anything that was invisible to me either wasn’t happening or didn’t matter.
In one of our conversations, Mr. Powell compared harmful speech to carbon pollution: People are allowed to drive cars. But the government can regulate greenhouse emissions, the private sector can transition to renewable energy sources, civic groups can promote public transportation and cities can build sea walls to prepare for rising ocean levels. We could choose to reduce all of that to a simple dictate: Everyone should be allowed to drive a car, and that’s that. But doing so wouldn’t stop the waters from rising around us.
And there is the implied call for more government regulation of speech. Why? Because “the waters are rising around us”, i.e., free speech as construed by the courts is harming America.
You know, if Marantz would be more upfront about what he meant, he’d be easier to analyze. But because he pretends that he’s in favor of the First Amendment and yet the same time that’s he’s not in favor of the current construal of the First Amendment, his argument is slippery. But of course if you must use code words like “harmed by hate speech” to change the Constitution, you can’t afford to be more explicit.
h/t: Tom, Cate