The limitations on “free speech”, as construed by the courts’ parsing of the First Amendment, are well known. No personal threats, no harassment in the workplace, no child pornography, defamation, or false advertising. And, of course, no calling for violence that will predictably lead to imminent violence. The Encyclopedia Brittanica describes the law.
. . . a few narrow categories of speech are not protected from government restrictions. The main such categories are incitement, defamation, fraud, obscenity, child pornography, fighting words, and threats. As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid “incitement”—speech “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack a nearby building). But speech urging action at some unspecified future time may not be forbidden.
I’ve been having a discussion of this with my Polish surrogate mother, Malgorzata, who feels that the law doesn’t go far enough: that any speech that calls for violence to people or groups of people should be banned, whether or not violence ensues. (I think she means “personal violence,” like killing or injuring, not damage to property.) (She is a staunch defender of free speech in general.)
First, what speech should be banned? Her response:
If somebody during Farrakhan speech goes outside and kills a Jew or a gay, the violence was imminent. But if he does it an hour later, or a day later, or a week later (like one of the synagogue shooters) it’s no longer imminent and it’s a protected speech. Will criminalizing all words calling for killing or maiming any other human or group of humans really be detrimental for society? It should not be so difficult to decide which words are calling directly to violence: “Go and kill”; “Go and maim”. X,Y,Z has no right to live”, “All X,Y,Z should be killed”. Are there many more variants of it?
About the time limit corresponding to “imminent,” I said, “It’s flexible. It’s meant to prevent people from inciting crowds to do immediate violence. And saying ‘go and kill’ is easier to criminalize than saying ‘the Jews are destroying humanity, we must do something about it,’ which could incite people just as much.”
She responded:
. . . Yes, it could, but with a very, very restrictive law “we must do something about it” would not be banned, but “they must be exterminated” would. It’s more than chilling to hear such blatant calls to murder, to know that people do act on these calls and that many already been murdered, and just do nothing.
When I said that a fuzzy time boundary would be bad for society, and how long after violence-inducing speech was the limit for saying that it violated the First Amendment, she responded this way (I also said that immediate violence, like lynching of blacks in the South), is easy to discern, but that this doesn’t happen any more, she responded:
If you look at Europe and the Middle East, there is an abundance of examples of killing after calls to kill. And I don’t care whether it’s an hour or 100 days. I would be for banning all calls to kill and maim.
Now I have to say that in principle Malgorzata’s point sounds good. What good is done by allowing speech that calls for the killing or maiming of others? Is it good for society to permit that?
But my response would be this. You must allow all speech, however odious and hateful, unless it makes violence happen immediately thereafter, and in a predictable and specific way. If you extend that limit to infinity, so that a lone gunman can write a manifesto citing, say Farrakhan’s hatred of the Jews as a reason he shot up a synagogue, the connection between the speech and the violence because more and more tenuous. Thus the connection must be near-immediate and obvious. And an infinite time limit is of course the same thing as saying that, as Malgorzata opines, no violence need ensue. The call for it alone should be illegal.
But why allow people to call for the extermination of others at all? My response would be that it accomplishes several things. First, it outs one’s opponents rather than having this kind of hatred fester underground. Second, it can inspire discussion. For example, if someone says in a speech, “We should exterminate all the Jews” (this is indeed illegal in several Western countries), then you can ask them “Why?” and answer with counterspeech. If no violence occurs from the statement, then one has a potentially teachable moment.
I don’t want to dwell on this at length; my purpose is to see if readers agree with the courts’ construal of the First Amendment, or with Malgorzata’s view that all calls to kill and maim should be illegal whether or not they lead to violence to people’s bodies.
Weigh in below, please. Malgorzata and I will be reading the comments to respond or clarify.
The line will always be fuzzy. “Immediate threat” doesn’t really resolve the issue, it just puts the goalpost closer to “no limits at all”. Three guys gather in a basement at one night and devise a plan to assassinate a leader. One of them executes the plan. Is the trigger-man the only culprit? I doubt many would say the others were just exercising free speech rights.
I think participating in devising a plan and saying so-and-so should be assassinated are quite different things.
You’ve pretty much nailed the problem here, but how immediate do think it should be before it is? I say 5 days. Prove me wrong.
Actually, all these people might be charged with conspiracy to commit murder — because they didn’t just discuss that murder should happen, but planned how to do it. Banning such speech just wouldn’t be a legal issue.
It’s already *not* protected by the 1st amendment.
Not only is “immediate” threat fuzzy, it’s looks fuzzier than just plain threat of bodily physical violence. But maybe not.
The potential downside of Malgorzata’s rule depends on how it is interpreted. Say someone advocates Marxist-Leninist Communism. Is that to be suppressed? If they persuade enough followers, violence will probably ensue. What if they say “Communism, but not of Lenin, Stalin, or Mao’s variety”? Etc.
“my purpose is to see if readers agree with the courts’ construal of the First Amendment, or with Malgorzata’s view that all calls to kill and maim should be illegal whether or not they lead to violence to people’s bodies.
Weigh in below, please.”
Hadn’t considered some of these points. I think it strongly depends on a number of definitions, including what the injury is. However, the injuring of people … and animals… itself should be “illegal” in such a case. Thus, threats and such are protected by the 1st amendment. However, that does not mean such threats do not merit precautionary measures.
Sub
Not that it matters to anyone what I think, but I agree with SCOTUS position on this – one cannot presume a link to an act from speech to far removed in time. There are too many things that go into what makes people do what they do to tie it to something someone said in the past, even if they then cite that for the reason.
I take your point but would argue that we should not be working backwards from the murderous act (which as you say may have a variety of contributory factors whatever the perpetrator says) but forwards from the words. Is there a likelihood that some people reading or hearing this will as a result become motivated to actually carry out the killing? If someone says ‘the Jews should be exterminated’ I would suggest there is plenty of evidence that some people will act on that even if not immediately. Even more so if they read/hear similar words over and again either from the same or different speakers.
Free speech is certainly a precious thing that should be restricted with extreme reluctance and then as minimally as possible but I think speech that exhorts violence against other groups in society represents a case where this is justified. It may mean the courts have to make some fine judgements as to which side of the line a given utterance lies and maybe they will not always get it right but that is a price I feel worth paying.
Bad ideas (memes) can infect human brains and can eventually contribute to bad behavior.
Banning bad ideas isn’t very practical.
Brings to mind Minority Report.
No, not very practical, but an explicit exhortation to violence is a very small subset of ‘bad ideas’. I don’t think the Minority Report comparison is very apt – I am not suggesting people should be punished for things they have not done but that a limited proscribing of free speech is justified to outlaw incitement to violence that is not limited to ‘imminent’ violence.
Well, you have your work cut out for you: Defining exactly what can be banned here (it will certainly be battled out in the courts).
What’s your time limit and what is the rationale for it?
People do not “know it when they see it”. In this case everyone sees it differently.
Not a disagreement, just a question, since specifics are important here:
Suppose a person, who happens not to be the President of the US because of one of the extraordinarily undemocratic practices there, advocates the ingestion of a certain swimming pool cleaner for a cure for something, and has all the scientific proof anyone could need to know that this is harmful.
Six months later Mr. X does this, it kills him, someone close says he did it because and only because of the advocacy above.
Is the advocator free and clear of any possible criminal charges based only on the free speech amendment?
If so, would that person also be if it was just 6 days or 6 hours, and he was a major shareholder in the only corporation selling that product? Or maybe just thought he’d win as a candidate in an upcoming mayor election if he got enough stupidos to think he was a great benefactor to the public by such advice-giving?
I feel quite accurate myself in referring to someone Mass Murderer donald, and would almost feel the same with respect to climate change, not just covid. And I realize full well that murder would not be the charge, it could only happen after next January, and won’t anyway. That is certainly related to free speech, both by me and by him.
“Is the advocator free and clear of any possible criminal charges based only on the free speech amendment?”
IMO, yes, absolutely. We are, all of us, responsible for our own stupidity. Such an advocate is a total shit, but he is not a criminal.
sub.
Hardly anyone supports free speech. Those that claim to are deceiving themselves. Every culture has guardrails on communication and punishes those that violate them. Different cultures have different limits on communication.
In the USA we disallow child pornagraphy, many kinds of deceptive financial communications, perjury, lying to law enforcement, etc.
Usually when people say they’re for free speech they’re only for the free exchange of information that they approve of, and they would never support unmitigated dispersion of child pornagrphy, Ponzi scheme deceptions, perjury, etc.
Nonsense and a deeply offense accusation. I’m a hard free speecher (I agree with Dr PCCe); except for narrow exceptions all speech should be allowed, not just the viewpoints I agree with.
I rest my case.
So your “case” is your own personal definition of free Speech? feh.
Humpty dumpty comes to mind.
You seem to be arguing for a purity test.
You accuse that any restiction invalidates a free speech stance. This looks pretty silly to me.
Sometimes even killing is permitted (for instance to prevent someone from killing innocent others).
Jerry (and most of us) are arguing for as liberal an interpretation of permitted speech as is compatible with civil society. The SCOTUS standards seem like a very good local maximum (making no claim to perfection) for this criterion.
Yes, if one’s speech (or communication) is restricted then to say they have “free speech” is deceptive. The claim that we (Americans) have free speech is one of the institutional American lies.
Yes, you want certain restrictions on communication – everyone does, but to varying degrees. Most people can explain how their desired restrictions are necessary. The desired restrictions vary across culture and across time.
Your definition of “free speech” is “absolute free speech”, while mine is “free speech as the First Amendment has been interpreted by the courts.
Yes, if you use your definition, which includes false advertising, defamation, etc., then nobody takes that view. But so what? I am a free speecher i the second sense, and I do NOT adhere to the ridiculous standard of “favoring free speech only of views of which I approve.” For instance, I don’t have a problem, legally, with speech that’s anti-Semitic.
I find your comment misguided and, frankly a bit insulting.
In pre-war Germany, speech about exterminating the jews was common. Of course it was encouraged by the Nazi government. My point is that it was dismissed then as rhetoric. And then it wasn’t.
In principle, I understand the desire for limits on speech that advocates the annihilation of any group or person. But there is that old problem, who gets to decide on whether the threat is serious enough? If some bigot, in the heat of a rally, says “You (fill in a group or person) should be killed”, is that enough? What if it is not a credible threat?
There is also the problem of driving such speech and those promulgating it under ground. Better they spread their poison in the open. I think we have to go with restricting just credible, imminent threats. But, perhaps, I could be convinced otherwise.
I believe that all of these laws only apply to public places. People are always free to say whatever they want in private. And they do.
The question is whether society is improved in any way by public calls for violence. Two of the criteria for what is a fighting word are:
“… fighting words were not protected because they did not contribute to the “exposition of ideas” and had little to no social value. ”
Difficult for me to see what societal value or beneficial ideas come from a call to murder.
In Germany, public espousal of Naziism is not considered a valuable “exposition of ideas” and you can be arrested for it. Yet Germany has not slid down a slippery slope to censorship, nor has it been overwhelmed by fascist Nazis speaking behind closed doors.
Some ideas and belief systems are pernicious – most of the civilized world rejects protection for hate speech. I find it completely ridiculous that calls for murder should be protected speech while the depiction of a woman’s breast on a magazine cover is so dangerous it must be disallowed.
Right now, you can’t say “You are a mother******” to someone because it might incite a punch, but if you say “Let’s kill all the mother****ing Jews” it deserves to be protected even if people get killed? That is less dangerous to society than the depiction of a breast?
please provide your definition of “hate speech”.
In general I would agree with you, however today this is much more complex primarily due to our internet platforms. In other words I see a difference between speaking at a venue and what it said on line. The on line part of this is where the biggest damage can and does happen. Currently we do not demand the platform owner do much of anything regarding what is said on the platform. It is all in a big mixed bag of unregulated firms. Now, on the radio or television there is much more regulation but for some reason the internet is still the wild west. We will eventually see more regulation of these platforms and I am in favor of that.
The issue is somewhat complicated by the existence of social media, which enable speech to reach the entire world in seconds. Radio and television of course did the same, but both were public forms of mass communication. Social media are public in the sense that they can reach anyone, but at the same time private in that their content can be very precisely targeted (for example in closed Facebook groups). It is somewhat reminiscent of discussions about the right to carry arms in the US. Those who are in favour of arms-control argue that the Second Amendment (regardless of how the question of the “militia” is interpreted) was not designed for an era of freely available automatic weapons, which enable individuals to perpetrate mass killings. Similarly, one could argue that the free speech component of the First Amendment was not designed for an era of instant mass private communication.
To take an example, a couple of years ago at a moment of heightened political tension in Ethiopia, photographs were posted on Facebook purporting to show mass killings carried out by a particular ethno-political group, and calling for revenge. The photographs were in fact fakes, transposed from a different country and a different moment in history, but the postings can be linked to a number of subsequent “tit-for-tat” killings. Never before in history has it been possible for individuals to exercise this kind of influence remotely and instantaneously…
I’m not sure of the answer, but I tend to favour Malgorzata’s position. Free speech is a fundamental principle, but so is the right to life. When the former infringes the latter, it seems to me that there is a good case for restricting its scope.
What puzzles me about the court’s construal is the fighting words exception – it sounds like a loophole you could drive a truck through. But is it applied?
It is. I refer you to this; https://www.thefire.org/fighting-words-overview/
The problem with any censorship is the censor. I do not trust anyone (myself included) to decide what someone should be allowed to say. We all have our biases and will use them to make bad decisions. In these times when everyone is looking through Trump colored glasses, it is particularly dangerous. Totally different decisions would be made in Texas and California.
To minimize the problem, we need to minimize the censorship. I do not see any overwhelming issue that demands a change to over 200 years of fairly successful policy.
That’s my problem with it too. People who favor censorship always seem to assume that it’s going to be applied as they would apply it.
Who is the decider? I think Hitchens would ask.
In any case, I am for veiled censorship. Like what Twitter does: I have no problems with social media putting warnings that one might be leaving their safe space if they view a particular tweet that is either threatening or offensive. They are not directing anyone to think that it is offensive or threatening only that the message might be offensive or threatening to someone, somewhere.
I’ve think it’s amusing that I’ve seen more people get offended by the fact that others consider what they are saying is offensive.
I think overall, free speech is doing well, despite the heartaches of deciding what has evil intent and, worse, linking that intent to real actions. If someone can do that then we will begin living in the Minority Report. And if you think that’s possible, then you can solve the P versus NP problem.
I’ve posted this point before a few times, so I apologise in advance:
I do think that calls for violence(this argument applies to hate speech in general but we’re talking about about calls for violence so I’ll focus on that) in the real world are constrained by social factors. If someone wants to go around threatening their neighbours with death they’re going to have a hard time of it – people don’t much like it when you say you’re going to kill them. they tell other people. Those people tell people. Your employer finds out. You’re shunned by society quite quickly and you’ll have trouble getting/keeping a job.
So those guardrails tamp down the human instinct to threaten violence against people we don’t like. We know there are consequences to our reputation even if it’s not strictly illegal. It might be a protected form of free-speech, but there are non-legal punishments that mean you’re going to be ostracised quite quickly if you go around threatening to lob a molotov cocktail through your boss’s window.
But all bets are off when we go online. None of those constraints apply. I can send hundreds, even thousands of death threats, descriptions of gruesome violence, against anyone I want, anonymously, under different accounts, every day and not only is it legally protected speech but I will suffer none of the reputational consequences that come with making threats face-to-face, in the real world. I can go along quietly with my peaceful, mundane life, chatting with neighbours and work colleagues, all while barraging people I don’t like with threats of violence. It’s consequence-free hatred.
The problem is that it’s unprecedented. And as such we haven’t really caught up with just how huge a change it is. There has never been a time when the human race had speech that was completely consequence-free. Never. There have always been consequences. …Until now.
So…I don’t know what to do about it. I’d like to see online anonymity mostly* phased out: if you’re going to make a controversial argument then you should at least put your real name to it. And if someone’s going to lay into you for making that argument…then they should put their name to their counter-argument too. Needless to say, this is not an entirely popular argument.
But mainly I’d like people to realise just how different the free speech argument is when it comes to online spaces where the majority of people are using faceless pseudonyms.
*NB: I understand that there would be a legitimate need for anonymous fora, where people could speak anonymously. But ideally if you make an argument you should stand by it.
Correction* “I can send hundreds, even thousands of death threats, descriptions of gruesome violence, against anyone I want, anonymously, under different accounts, every day and not only is it legally protected speech”
I should have omitted the last part. It’s not “legally protected” to threaten imminent violence online…but it’s still consequence free – the chances of the law chasing you down for making a death threat in a YouTube comment section is basically non-existent.
I have to say, that your point (others have made it too) is a significant fly in the ointment of my hard free speech position. None of this is easy.
Definitely not easy. Especially now. We haven’t really begun to deal with the way the internet has changed the shape of this argument.
I understand that people have addressed the anonymity issue, but my point is narrower and more specific: it’s a literally unprecedented situation we find ourselves in: not just a more extreme version of how things used to be, but a totally new social phenomenon…truly consequence-free speech.
And because the societal constraints on real world free-speech are invisible, or at least are unmentioned and implicit, when we switch to talking about free-speech online we often don’t realise that those constraints are missing. We never noticed the social guardrails on speech in the real world so we don’t notice their absence when we go online. And thus we end up talking about the two forms of free speech – online and offline – as thought they’re interchangeable when they aren’t.
I’m very much pro-free-speech and am constantly pissed off by how successfully and shamelessly conservatives have hijacked the free-speech argument, probably the single most fundamental liberal argument there is. It depresses me, the increasing contempt that some people on my side hold for those two words.
I don’t know how hard my position on free speech is by comparison with yours or PCC’s though. Probably harder than a pear but not as hard as a bowling ball. Let’s say…a Granny Smith apple. Hard on the outside, but with a certain amount of give as you probe deeper. Hard enough, but not so hard that you lose a tooth. Crunchy I suppose. I’m in favour of crunchy free speech.
“I’d like to see online anonymity mostly* phased out”
Interesting post. In principle I agree that anonymity is a big problem, but we live in a world of cancel culture where anonymity is sometimes needed.
“In principle I agree that anonymity is a big problem, but we live in a world of cancel culture where anonymity is sometimes needed.”
It seems to me that cancel culture properly includes the Harvards (sticking their long private arms into the off-campus private lives of students) and not a few corporations.
“Should we narrow the First Amendment to forbid speech urging violence?”
No.
“If someone tells me that I’ve hurt their feelings, I say ‘Well I’m still waiting to hear what your point is.’
“I’m very depressed, however, that in this country you can be told — ‘That’s offensive’ — as if those two words constitute an argument, or a comment. Not to me they don’t.”
-Hitch
I think the Hitchens quotes are useful here. I’m not a USian, but in the current woke context of US discourse, it’s common for progressives to categorize speech they disagree with as violence. I would not want such a person to be in charge of evaluating such speech to see whether it violates a narrowly-interpreted 1A definition of incitement of imminent violence. Creating such a narrowly-defined 1A definition of free speech would be one step down a slippery slope toward placing the woke red guards in charge of applying that definition. Remember many of the woke were in their teens and early 20s when so many of us dismissed the Critical Theory threat as a mere college campus fad. Now many of the woke are in their 30s and taking up administrative positions in the media, government, universities, and some industries (tech). In twenty years these people will be at the height of their powers, some will be political leaders, others will be judges and prosecutors and presidents of companies and universities. Handing them a free speech cudgel to bludgeon the rest of the culture with seems like a bad idea. But again I’m not USian, and possibly the sky is not actually falling in this case.
I tend to side with Malgorzata on this. If someone in a speech or written text promotes violence against or killing of another individual or group of people that should be illegal in my view whether or not they are saying ‘do it right now’. If someone urges the extermination of a particular ethnic group a high-minded person might well take that as a teaching opportunity and engage them in argument and may even succeed in changing the speakers views but meanwhile someone else may take them at their word and go and commit the act. I cannot see why it makes a difference if that happens within five minutes, five months or five years – if the words are clearly an exhortation to violence then the act is a consequence of the words.
However, we do not need to wait for the lone gunman to commit his murderous act and then cite the text that inspired him before declaring an utterance as an illegal exhortation to violence – the courts are surely capable of determining whether or not there is a call for violence.
Taking this line of thinking to it’s conclusion, the very first publication that should be eliminated is the Bible and, of course, the Koran. But let’s not stop there. There is a HUGE number of people and works we can erase. Just think of the possibilities! A brave new world!
That would be great! Haha
There is discussion about a new law in Brazil that regulates “Fake News”. The first thing I thought was, is religious stuff going to be considered “Fake News” too?
I think an immediate specific threat should fall under the banning of such statements rather than a generalized or longer-term threat. Should an agitator be prosecuted for rallying his followers against a certain leader who then later on could be assassinated? An authoritarian government could suppress dissent in this case.
The more limitations you put on free speech, the more ways people or governments can abuse them. It’s for the courts to decide whether an instance of speech constituted “incitement to violence.” It’s not for some cop to use his best judgement, or worst prejudice, to stop someone expressing an opinion.
I support the current interpretation. I’ll leave aside the more legal/historical question of whether it’s the “correct” construal of the first or not.
It is good for society to permit your speech that I might claim is calling for the killing or maiming of others, lest I claim that about any opinion I happen to not like, and thus prevent your ideas from ever being spoken. And vice versa. A generalized and broad ban on speech that “calls for violence” could be used to ban speech that denotes illegal violence but doesn’t connote it, as well as speech that doesn’t denote violence but which some onlooker claims connotes it.
IMO, the word action in ‘imminent, lawless action’ is critical. Just like the courts are deeply suspicious of prior restraint in the press, they should be deeply suspicious of prior restraint in personal speech too. Only those speeches the courts are very certain are going to lead to illegal actions should be regulated.
Having said all that, while I agree with the US’ very liberal first amendment, it doesn’t seem to me that Europe is too terribly off by not having it. Thus, while in principle I think greater prior constraint is bad for society, in practice, at least in western democracies, it doesn’t appear to have been too bad for society.
Especially these days, when the want to define speech as “violence”.
I think SCOTUS has correctly stated the best view, a narrow one. Because of the nature of speech itself – location, context, intention, inflection, word choice are all relevant factors – it is difficult to have a formula to evaluate or to define what would be unlawful in advance of the speech itself. Free speech is messy, but we are supposed to be competing in a marketplace of free ideas.
There’s no easy answer – the UK parliament got into trouble trying to fight (aargh!) the use of war-based and violence-themed speech in late 2019. And prior to that, even The Guardian‘s Letters page was divided on the issue: https://www.theguardian.com/politics/2018/oct/24/violent-threatening-and-unparliamentary-language
We do not determine the constitutionality of speech post hoc, by counting backward from a violent attack to determine how much earlier the speech that incited the attack occurred.
The constitutionality of speech is, and must be, determined prospectively, as of the time the speech is engaged in. Under our extant First Amendment standards, the question is whether speech both calls for imminent violence and is likely to result in such violence. If the answer is “no,” then, in a society that allows free and open speech, our working theory is that good speech will have time to counteract the bad such as to prevent the violence. The United States Supreme Court abandoned the “bad tendency” test — which asked whether speech could eventually bring about an evil end — nearly a century ago.
This is reflected not just in our First Amendment jurisprudence, but in our criminal laws as well. A threat (whether by word or by deed) to do violence to another, coupled with an apparent ability to carry it out, which creates a well-founded fear in the other person that such violence is imminent constitutes a criminal “assault” (which can be prosecuted consistent with the First Amendment). Where such threats are directed against a group of people — again with the apparent ability to carry the threatened acts out and where the threat gives rise to a well-founded fear in reasonable people — they run afoul of criminal statutes prohibiting “terroristic threats.” (These statutes are of more recent vintage and their constitutionality has yet to be challenged in SCOTUS — in part, I think, because such threats are rare — but I believe their constitutionality also would be upheld, so long as the statutes’ wording is sufficiently well-crafted.)
Also, I think that a test purporting to ban “speech that calls for violence to people or groups of people” seems much clearer in theory than it would prove in praxis. Would it be enough, for example, that the speaker refers to a person or persons as “vermin”? If those words are spoken by the light of a burning cross in front of a share-cropper’s house by a speaker in a Grand Dragon outfit to a rope-wielding mob, such words would not be protected by the First Amendment even under the most stringent interpretation of the “imminent incitement” standard of Brandenburg v. Ohio. But should the same criminal penalties apply to someone who declaims them from a soapbox in a public square?
Thanks Ken.
Just to clarify my position: what I mean is a very narrow ban of speech which calls for killing or maiming, only public speech (social media included) and only these two instances. Definitely not a very general “calls for violence”). It shouldn’t be too difficult to be precise. I’ve just checked the dictionary and there were 25 synonymes to “kill” (inclusive plenty of slang expressions). “Maim” is also rather straightforward: cut of their tongues, cut of their right hands or any part of their bodies. I can’t really see that this may be a beginning of “slippery slope” or that it may be used differently by people from opposing political sides.
What if the speaker says “these people are vermin, and you know what we do with vermin”?
There are many ways to suggest killing or maiming without using those precise terms or their synonyms. Would your proposal apply a bright-line test to distinguish them? Are such implied threats less dangerous per se?
Also, threats to “kill” or “maim” (or their synonyms) can be meant for rhetorical effect rather than as serious threats to carry such acts out. Would your proposal make that usage a crime as well? If not, can you suggest clear statutory language that would allow prosecutors and judges and juries readily to distinguish them?
I’m not a lawyer and on top of that English is my third language. So I can’t really answer your questions. So as a non-lawyer and a non-native English speaker I would say that calling anybody “vermin” should not count here, but the addition of “and you know what we do with vermin” would be for a judge to decide. He/she would have to take into account additional context. And I can’t think about a situation in which there is a necessity to use “kill” or “maim” for rhetorical effects. There are many words which would make a perfect rhetorical figure but we don’t use them in public speech. Why not add threats to kill or maim somebody to that list?
It may not be necessary, but it’s done.
Heck, just the other day — upon finding out that Russia has been putting bounties on the lives of American GIs while Donald Trump, despite being briefed on it, has done nothing about it — I suggested that Tammy Duckworth (the US senator who lost both her legs in combat in Iraq when the Black Hawk helicopter she was piloting was shot down by a rocket-propelled grenade) should pull off one of her mechanical legs and use it to beat Donald Trump to within an inch of his life. Would you make saying something like that a crime?
I think you’re imagining that this is much simpler and more straightforward than what it is, Malgorzata — falling prey to what the brilliant Israeli-American psychologists Amos Tversky and Daniel Kahneman called the “representativeness heuristic.” It’s easy to imagine particular cases where your proposal would make perfect sense; much more difficult to formulate a rule that would apply to cases as they arise according to the vicissitudes and vagaries and ambiguities of real life.
I don’t imagine that it’s simple and straightforward but I don’t think any law is simple and straightforward either. It’s not arithmetic. There are always borderline cases, there are always exceptional circumstances in every case. However I do not think it’s more complicated that the problem “what is defamation, obscenity, child pornography” etc. Somehow lawgivers, lawyers and judges have to manage cases and terms which are not simple.
In the case of your rhetorical statement: in case you would be prosecuted for “a call to maim” I would hope that a judge would dismiss the case as a rhetorical figure of speech but give you a strong rebuke for using such horrid language in public. In time, after a few such unpleasant encounters with a bit too eager followers of the law, you and others would hopefully learn that making rhetorical figures out of murder and mayhem is not the best way to convey your message and that murder and mayhem should be unequivocally and in every circumstances condemned in a civilized society.
“I would hope that a judge would dismiss the case as a rhetorical figure of speech but give you a strong rebuke for using such horrid language in public.”
That is punishment.
As Valentine Smith immortally said (in fiction; and I paraphrase, I don’t have the book in front of me): “These ‘jokes’, they all involve a badness for someone.”
The death of humor by regulation.
Do you really find anything funny in the proposition to bludgeon a human beeing almost to death?
You fail to see that he was not serious about that?
What other mold could that fall into, aside from humor?
Bludgeoning a real human being is rather strange subject for humor. Many years ago V.S. Naipoul, as a very young man went to the cinema. Before the proper film they used to show a newsreel. That day it was a footage from a recently liberated German death camp. The footage was of a bulldozer pushing almost skeletal corpses into a common grave. Naiupaul described the audience which was laughing uproariously. Somehow he didn’t want to live in a society with this type of humor. He moved to U.K. where such footage was met with mute horror. I, too, prefer horror than laughter in front of an image of people killed or maimed, even if it is only a proposition to do it.
“Bludgeoning a real human being is rather strange subject for humor.”
Precisely my thought.
There is a “joke” that C.S. Lewis and J.R.R. Tolkien should have strangled each other in order to save the world from ever having the accident of reading their writings. I’ll not name names.
We can joke about how their work might be infantile, juvenile, etc. without having to … whatever that “joke” says.
At best, the “joke” is a juvenile one, and immature – that doesn’t work beyond a narrow audience, and we’d hope that such audience will grow out of it.
Oh no
I spent five minutes writing that – patiently typing every character of my email – and it’s ruined by the new formatting.
Should Josh Clover have been fired or prosecuted?: https://quillette.com/2019/04/01/free-speech-for-me-but-not-for-thee/
He can’t be prosecuted because his speech is protected under the U.S. law. But I surely support the idea that he is unfit to teach at the university (or any other school). If Bannon, Yiannopoulos or any other person from the right talked in clear text about the need to kill their opponents, they shouldn’t get a platform at the university either. As far as I know that is not the case. These figures from the right expressed ideas abhorrent to some students but not one of them called for killing or maiming anybody, as Mr. Clover clearly did.
Which country was it where Naipoul went to that cinema?
It was one of the island in Trinidad and Tobago. I don’t remember which one.
In US society, “the best way to convey your message” is left up to the speaker — that is the very essence of free speech as protected by the First Amendment to the US constitution. A judge rebuking someone for engaging in constitutionally protected speech would be the apotheosis of paternalism.
Do you not see what a “chilling effect” it would have on people’s willingness to engage in protected free speech if one had to risk prosecution for making a joke (even a joke that you personally find to be in poor taste)?
I can hardly think of a better example for why speech must be constitutionally protected unless it constitutes an actual “incitement to imminent violence.”
I suspect I’m not in a minority who would welcome a chilling effect on speech calling for murdering and maiming people. Human language is so rich that everybody can convey her or his message without calling for things that are antithetical to the most fundamental right in a civilized society: the right to life.
So gallows humor is right out?
The whole point of the Free Speech clause of the First Amendment is to put such matters beyond the whim of the majority.
A majority of the US citizenry would no doubt also favor laws against blasphemy. The First Amendment would prohibit those, too.
In the United States we do not enact into law the majority’s sense of good taste and decorum. We leave those matters to the individual speaker.
I do not think it’s more complicated that the problem “what is defamation, obscenity, child pornography” etc.
In the US, defamation is strictly a civil cause of action; it cannot be prosecuted criminally.
As a quick perusal of the internet in the US would demonstrate, “obscenity” is all but never prosecuted. Child pornography can be prosecuted in the US only if it depicts a criminal sexual assault on an actual minor child — that is a very bright, easily applied legal line.
The prosecution of any call “to kill or maim” would be much more difficult to apply, many times over. Should someone who puts a sign in shop window during civil unrest saying “Looters will be shot” be subject to prosecution? Should the member of the audience at Trump rally who shouted out “shoot them,” when Trump asked what should be done about people crossing the US border illegally be subject to criminal prosecution? Should Donald Trump have been subject to criminal prosecution for laughing at the statement?
Technical note:
I used Safari to “Request Desktop Site” and the formatting is ok. I entered this comment using the resulting Desktop page.
‘Also, threats to “kill” or “maim” (or their synonyms) can be meant for rhetorical effect rather than as serious threats to carry such acts out.’
That seems a quite handy reply/rationalization, in most any domain of life, for a threat-maker to offer in response to anyone expressing concern about a perceived threat.
I wonder how much weight judges should give this in deciding whether to issue (sometimes lethally unsuccessful) restraining orders in domestic abuse cases. Or is (the potential for) domestic violence an exception?
(I have a particular interest in this. In one instance my brother and I – 10 and 11 at the time – cowered downstairs hearing our drunken step-father repeatedly slap our mother, and then heard him say, “Do you want me to whip those boys too?”)
Sorry to hear about that Filippo. Step-father/step-son relationships are…not easy.
How horrible. I am glad you survived that, Filippo. You are one of the most sensible and civil commenters on this site.
Someone who slaps a spouse is guilty of domestic battery; no free speech issue is implicated.
As to “threats to kill or maim,” see my initial comment in this thread at #21. If the person making the threat has the apparent ability to carry it out and the person to whom the threat is made is put in a well-founded fear by it will be, the threat constitutes a “criminal assault,” and should be prosecuted as such.
You have my sympathies for your childhood hardships.
I agree with you.
The problem with drawing lines is that lines are never self-interpreting or self-enforcing and, so, in order to have a line you also have to have someone who decides the “debatable” cases.
Suppose, for example, we make illegal to say “Kill the Xs,” and then somebody says “let’s get rid of the Xs.” Or a corporate executive says “we’re going to kill the competition.” Somebody’s got to decide, definitively, which of these fall within the prohibition. Who would that be? The government? Remember, the people do not always choose wise leaders.
Other than in the context of “criminal solicitation,” it’s hard to think of real-life examples where mere words were actually the but-for cause of a serious crime. And criminal solicitation already falls under an established exception to the First Amendment.
All of that is true but it already applies to the existing free speech law in the US and elsewhere, indeed to virtually all areas of law. We trust the courts to decide which side of the line a given case falls and SCOTUS has done exactly that in relation to the First Amendment. I don’t see why moving the line a little with respect to the imminence of violence necessarily creates intractable issues of deciding what is allowable and what isn’t. I think the courts should be capable of distinguishing between the genuinely threatening and throwaway expressions such the ‘we’ve got to kill the competition’ (which is but a step away from ‘I could murder a cold beer!).
With respect to your final question I would suggest there are certainly radicalised young moslem men (for example) who have committed acts of terror after having listened to/read repeated diatribes denouncing Jews, Americans and others as evil vermin etc, etc. These diatribes would fail the imminent violence test but undoubtedly have led to serious bloodshed and loss of innocent lives.
I agree with Jerry and SCOTUS.
Having reprehensible opinions and expressing them publicly is not (and should not be, in my opinion) illegal in a free society.
Publicize the idiocy and lambaste it in public.
The issues are:
Who decides?
How can you be sure The Decider™ will align with your views (or views strongly in conflict with your views)?
These are the pitfalls the woke left are falling into.
This discussion reminded me of a book I read some years ago by Richard Polenberg entitled Fighting Faiths: The Abrams Case, the Supreme Court and Free Speech. It’s been a number of years since I read the book so I won’t comment on it other than to note that it tells the story of some Russian Jewish anarchists who were convicted of distributing anti WW I literature. Their conviction was ultimately upheld by the United States Supreme Court. This morning I read the Court’s opinion found at 40 Sup.Ct. 17 (1919). In a dissenting opinion, Justice Holmes wrote:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to fraught with death, unless they do so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. *** Only the emergency that makes it immediately dangerous to leave the correction of evil counsel to time warrants making any exception to the sweeping command, “Congress shall make no law abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
If time allows, I recommend reading both Mr. Polenberg’s book and the entire opinion of the Court in Abrams v. United States.
Has speech to incite substantively changed from the time of William Randolph Hearst? Or is Facebook the face of yellow journalism for our times. I think one of the problems that the demographic who follows this site faces is that our view of journalism was formed by arguably the golden age of objective journalism that spanned from E R Murrow’s take down of McCarthy to Ted Koppel’s retirement. For most of the rest of our history, media had more in common with Fox than it does to Cronkite.
It’s not for me to decide when being a dick changes into violence by proxy. Not sure I trust anyone else to do it either.
This is a bad rule for the reasons others (and Jerry) have given, but also because anytime anyone proposes a law, they are concomitantly calling for enforcement of that law, i.e. for the state to use coercion and violence to anyone who might break the law that is being proposed. No matter how carefully and neutrally a law is drafted, enforcement of that law is going to fall disproportionately on some demographic group (age, race, gender, sexuality, wealth, educational attainment, parental status, or any other group capable of conceiving of and organizing itself as an interest group), so people will say that proposing that law is a call for violence against that group; note how the War on Drugs has now been revised in the record as an overtly white supremacist terror campaign (which would have been an insane idea to anyone in 1975). And suppose we have debate on a law on reparations for African-Americans; people will have to pay taxes to pay for it, and anyone who refuses will be punished by the law, backed up by the threat (or actual use) of violence, and the ones who actually lose something from it (non-black people) seem to be “a group.” Should proposing reparations be illegal then?
Your adoptive Polish mama’s idea is one that is innately appealing and makes intuitive sense (why should people be allowed to call for violence, especially against specific people or groups of people?), but the law is about practicalities and realities; to quote Justice Holmes, “the life of the law is experience”, and the experience of using a more restrictive approach to calls for violence (very much the norm throughout history, including at the time Justice Holmes said those words as violence wracked American streets over labor and racial issues) has demonstrated to judges in the Anglo-American tradition that a more relaxed approach should be used.
People seem to believe that creating a better law can make the world a better place. A good law can help, but I don’t think it’s that simple.
And I do think that simple laws are better. If the Supreme Court can’t agree about a law, why would an average citizen be able to follow it?
I think crimes should be actions, not thoughts or words. If you criminalize speech for causing violence, should you also criminalize poverty, income disparity, stress?
I don’t believe that laws stop crime; they allow punishment for crime. How many should we criminalize to create how perfect a world?
A healthy society can afford free speech.
America is not healthy anymore.
“A healthy society can afford free speech.”
“America is not healthy anymore.”
Your statements seem to be two which would be logical premises begging for a logical conclusion. I’m unable to find one.
Note that the assertions
‘P implies Q’
‘not P’
do not lead logically to the conclusion
‘not Q’
So I assume you are not expecting me to (logically falsely) conclude
“America cannot afford free speech.”
Please don’t fuss about me not accounting for the quantifier implicit in the 1st statement (i.e. “a” means “any” there).
And I won’t fuss about you misnaming (your?) country in typical USian geographical ignorance.
Perhaps you should re-write your first assertion as
‘A non-healthy society cannot afford free speech.’
I don’t agree with that, but the conclusion just above would follow logically with the same 2nd premise.
It hardly surprises me anymore how easy it is for Hannity, Carlson and Ingraham to mislead 10’s of millions.
Hi phoffman56, are you not overly pedantic?
I am simply depressed with the breakdown of civility, rising extremism and a slow descend into chaos in the US (and elsewhere).
This puts free speech under intense pressure.
“And I won’t fuss about you misnaming (your?) country in typical USian geographical ignorance.”
I am not a native English speaker nor am I a US citizen.
Are you taking offence with the term “American”?
You might be clever, but you do not appear to be a civil or nice individual.
How in hell is that “misnaming”? Were you confused which country Eric was referring to? There are few things less irritating than fatuous derision for referring the US as “America”. No one is confused by the term and the sneer comes only from the irredeemably pedantic. I’m surprised by your response.
Were I a Uraguyan, or a Chilean, or a Costa Rican,(Canadian actually), I myself would be somewhat insulted at being told that my country (as part of a continental mass known to geographers as America, not The Americas–can’t wait to hear ‘The Irelands’) is not healthy. I realize perfectly well that this implication was not intended by Eric (and I apologize for my “YOUR country”–but that only). I also realize that my frequent pointing the above out on a clearly international non-blog would be ridiculously unsuccessful in general (e.g. the BBC calls it America). But I’m also convinced that it has increased the sensitivity of more than one USian here on exactly this point. It does seem ironic to be accused of being “not nice” in pointing out one particular habit due to miseducation which itself exhibits a lack of sensitivity.
I’d suggest not for the first time that a perusal of the Monroe Doctrine (or perhaps a common misconstrual of that according to some) would be helpful on the educational matter.
However, maybe being “not nice” referred to me pointing out what looked like some common logical errors. Given the avoidance of these two critics of taking up the logical point at issue here, it is doubly ironic that the national unhealthiness of name-calling rather than issue-discussing is here glaringly illustrated. However, ‘non-niceness’ is easy to chortle at when one thinks of what awful stuff Mr. Drumpf, the leading public offender in this respect, customarily lies about people.
To un-nicely rub the illogic in, here’s another one:
Were I to USianize myself slightly and blurt ‘Every Usian is not male!’, both Obama and Drumpf might object in the infinitesmally low-probability case that they actually listened to me. Which one objected to “USian”, and which to the illogic, is pretty clear. The lawyer would undoubtedly have written “Not every American is male” if he had wanted not to get raked over the coals by the judge.
But logic’s quantifiers are in fact quite difficult to get correct.
Sometimes what looks like pedanticism might help a few people think more clearly by habitually speaking/writing more clearly. Or am I hopelessly naive on this?
I still think ‘A non-healthy society cannot afford free speech.’ is dangerously false. Admittedly I’m the one who suggested that was what was intended; nobody else said it.
Hi phoffman56, thanks for clarifying what you meant, I think I should also apologize for my over-reaction.
However what on earth does “USianize” mean?
Is it possible to just use normal language?
Being offended on trivia on behalf of other people does not seem to me be that constructive.
Hi phoffman56,
I am curious, from what you said you appear to be a Canadian academic?
I just wonder what your background and interests are.
To answer both just above:
I am pretty old (78), did 44 years as a math prof (UWaterloo), still called Emeritus there, with an office. I was pretty much equally interested in math and in physics way back, but opted for math. Had to spend almost all my time on it to achieve anything much in research, but now spend far more time reading stuff somewhere between journal papers and popularizations in physics, not much math except logic, where I taught a lot in later years and wrote a book (free online). Somehow collecting a generous salary, then additional from book publishing based on your salaried work never appealed to me.
As to the other, I use “USian” of course for people who much more commonly refer to themselves as American. So putting “..ize” on the end of it is even more of a silly non-word. I’m indirectly claiming there that in US you will almost never hear the negative placed before the universal quantifier (‘for all’ or ‘for every’) when that is intended. If you studied some calculus with some definitions and proofs, rather than only cookbook recipes, it seems for most, and was for me, difficult for a long time to understand the difference between “For all epsilon, there exists a delta, such that ….” versus when you reverse the two phrases between the commas. (People say it’s the Greek letters that confuses them, but I doubt it!) That’s harder than the matter above with the quantifier/negation order, and the latter gets really irritating to a proud pedant like me!
Hi phoffman56
Thanks for your answer.
Sounds like you had an interesting and good life.
However I do not think you should be invited to talk to swing voters on a campaign trail 🙂
Healthy societies are healthy because they have free speech. And a sure sign of an unhealthy society is a drive to restrict free speech.
“Healthy societies are healthy because they have free speech”
Yes, that is what makes the situation so sad and strange, the country that pioneered free speech with constitutional protections seems to be unraveling.
The only speech that should be legally punished is:
1) Selling/giving military secrets to enemies in time of war,
2) Directly inciting to crime, say, by giving orders (and money) to a hit-man,
3) Telling lies that cause measurable harm (loss of money, or assault) to other people.
And that’s it!
What about the charismatic leader who makes a speech to his followers that says “kill all Jews”?
You could make a credible argument that Trump has violated no. 3 on that list, and arguably no. 1. Possibly even 2. given the things he encouraged Russia and his “2nd Amendment people” to do to, respectively, the American electoral system and Hillary Clinton.
Not that I anticipate a reply, because you don’t seem to follow up any of your comments, but doesn’t that make the president a criminal?
Kiddie porn?
I kind of reluctantly agree with Dr. Coyne’s conclusion on this issue. Abhorrent speech which yet does not directly lead to violence does potentially provide useful information about the speaker and possibly a teachable moment and therefore should not be criminalized.
I completely agree with Malgorzata.
A piece on Quillette, which Jerry probably posted in the past:
https://quillette.com/2019/04/01/free-speech-for-me-but-not-for-thee/
And:
https://quillette.com/2020/07/06/free-speech-is-a-value-not-a-right/
To rehash what I said before, regulated human rights may oppose so that a balance has to be sought. Such balance could be made in courts, which sets precedents to avoid slippery slopes, e.g. hate speech laws.
And, to avoid theoretical discussions in matters of practical nature, the result should be checked against statistics, e.g. hate speech laws.