The pushback against free speech begins

A while back I predicted—though I’m not sure it was here—that, just as college students are questioning free speech, so the Left-wing media would also begin questioning it, eventually calling for an end to “hate speech” or “fake news.” After all, it’s not called the Authoritarian Left for nothing, and their goal is not to allow free discussion, but to force people to adhere to their own ideology. It’s natural, then, for “progressive” Leftists to kvetch about free speech, which allows people to say things they don’t like to hear. Free speech causes offense and harm and is even violence!

Today I’ll treat you to another prediction, at the bottom, and then ask you for yours. Also, I’d like readers to weigh in on the issue of whether we should restrict America’s First Amendment beyond the form it’s been construed by the courts. Should we go to the European system in which some speech, including “hate speech” is banned and can be subject to criminal prosecution? But I’m getting ahead of myself.

Within the last two days I’ve seen two articles in Woke sites (the New Yorker and the New York Times) implicitly and explicitly calling for more bans on speech. Granted, some of the bans would be legal, like those at Facebook described in the New Yorker, and it would be hard to alter the legal interpretation of the First Amendment given today’s conservative Supreme Court, but many of us free-speech absolutists find this media pushback a worrying trend.

Here’s an article from last week’s New York Times Magazine:

And one from the latest New Yorker, which I believe is free online:

 

Both articles refer to the kind of “hate speech” or “fake news” appearing on platforms like Facebook, and both suggest that perhaps the U.S. needs to modify what we think of as “free speech” to prevent these occurrences. Neither article, curiously, actually defines “hate speech,” and that’s perhaps because it’s a notoriously slippery term.  That in itself highlights the problem of censortship.

Here are a few statements suggesting that we need to rethink free speech in the U.S.

From the NYT:

It’s an article of faith in the United States that more speech is better and that the government should regulate it as little as possible. But increasingly, scholars of constitutional law, as well as social scientists, are beginning to question the way we have come to think about the First Amendment’s guarantee of free speech. They think our formulations are simplistic — and especially inadequate for our era. Censorship of external critics by the government remains a serious threat under authoritarian regimes. But in the United States and other democracies, there is a different kind of threat, which may be doing more damage to the discourse about politics, news and science. It encompasses the mass distortion of truth and overwhelming waves of speech from extremists that smear and distract.

. . . These scholars argue something that may seem unsettling to Americans: that perhaps our way of thinking about free speech is not the best way. At the very least, we should understand that it isn’t the only way. Other democracies, in Europe and elsewhere, have taken a different approach. Despite more regulations on speech, these countries remain democratic; in fact, they have created better conditions for their citizenry to sort what’s true from what’s not and to make informed decisions about what they want their societies to be. Here in the United States, meanwhile, we’re drowning in lies.

. . . In other words, good ideas do not necessarily triumph in the marketplace of ideas. “Free speech threatens democracy as much as it also provides for its flourishing,” the philosopher Jason Stanley and the linguist David Beaver argue in their forthcoming book, “The Politics of Language.”

And another system, that of many European countries:

The principle of free speech has a different shape and meaning in Europe. For the European Union, as well as democracies like Canada and New Zealand, free speech is not an absolute right from which all other freedoms flow. The European high courts have allowed states to punish incitements of racial hatred or denial of the Holocaust, for example. Germany and France have laws that are designed to prevent the widespread dissemination of hate speech and election-related disinformation.“Much of the recent authoritarian experience in Europe arose out of democracy itself,” explains Miguel Poiares Maduro, board chairman of the European Digital Media Observatory, a project on online disinformation at the European University Institute. “The Nazis and others were originally elected. In Europe, there is historically an understanding that democracy needs to protect itself from anti-democratic ideas. It’s because of the different democratic ethos of Europe that Europe has accepted more restrictions on speech.”

Finally, in the last paragraph:

As we hurtle toward the November election with a president who has trapped the country in a web of lies, with the sole purpose, it seems, of remaining in office, it’s time to ask whether the American way of protecting free speech is actually keeping us free.

As the title implies, the New Yorker article is about Facebook, and it’s quite absorbing to read about the ever-changing standards of that platform and its double standard when leaders and politicians like Trump violate its “community standards” versus when regular folks do. (Leaders get to post “hate speech.”) While the criticism of free speech is nowhere near as obvious as in the New York Times article, the fact that the magazine is quite concerned with how to restrict “hate speech”, as well as “fake news”, shows you that they think it’s a serious problem. And both articles don’t mount any extensive defenses of letting social media post whatever it wants; in other words, they are showing but one side of the free-speech debate.

To be fair, the NYT does suggest non-censorious ways of dealing with this problem, including fact-checking and labeling (as Facebook already does), the use of anti-trust laws, and so on. Too, it also faults the Supreme Court’s 2010 decision in Citizens United case saying that, for the purposes of political speech, corporations can be counted as individuals—a decision that I think was badly misguided and harmful.

Finally, the First Amendment applies only to speech in public or connected with the organs of government, not to corporations like Facebook. But I’ve argued that, as far as possible, platforms with that much reach and power should strive to abide by the First Amendment. That doesn’t mean, however, that I don’t favor monitoring and counterspeech, including labeling posts as misleading or false if there’s fact-checking. That’s just counter-speech, though it’s counter-speech by the authorities.

The term “hate speech,” too is slippery. If Holocaust Denial is hate speech, well, I don’t favor criminalizing or censoring it. People need to hear the arguments against the Holocaust, for how can you counter them (many sound quite convincing!) until you know what they are? Further, allowing “hate speech”, including stuff like praising Hitler, simply outs people who are bigots, letting you know where people stand. To ban such things implicitly assumes that Americans are stupid, and will be easily swayed by arguments that are false but sound good. And it drives the “hate” underground, but doesn’t do a thing to eliminate it. Free speech is what’s needed to get rid of bigotry, and was largely responsible for the decline of racism in America in the last 70 years.

And if you think that people can’t be trusted to suss out the truth, or consider all ideas, then somebody has to appoint A DECIDER to work out what speech people can read and what speech they are too credulous to be exposed to. Do you want Mark Zuckerberg to do that? Indeed, Facebook’s standards for taking down posts, as the New Yorker shows, are so confused and contradictory that the company won’t even make them public.

My prediction continues: in the next year we’ll see an increasing number of articles in Left-wing or liberal media questioning the need for “free speech” in America.

And here’s another prediction, which is mine. As Wokeness continues to seep into the fabric of America, we’ll see increasing calls to get rid of qualifications that support the meritocracy of colleges and other institutions, because meritocracy is considered racist. This has already started, with colleges getting rid of requirements for standardized tests like the SAT and ACT, even though those tests have palpable predictive power on how well students do in college (the University of California system is weeding out all standardized tests in the next few years). This erosion of meritocracy will continue, I predict, with calls to get rid of grades as well, perhaps replacing them with other criteria that don’t involve directly comparing students against each other.

At any rate, here’s my question. The NYT article implicitly argues that Europe is doing fine despite its hate speech laws (some of those, by the way, include blasphemy laws, specifying that it’s a crime to make fun of religion), so why can’t America be like Europe?  Shouldn’t it be illegal to deny the Holocaust or praise Hitler? Shouldn’t it be illegal to say that we should ban Muslims from immigrating to America? Shouldn’t it be illegal to say that the Jews are trying to take over the country?  After all, is our democracy really better than France or Germany? According to the New York Times, we’re “drowning in lies.”

Weigh in below, and if you have any predictions like the two I’ve given, let us hear them.

195 Comments

  1. ThyroidPlanet
    Posted October 19, 2020 at 10:12 am | Permalink

    Sub with one point:

    The location of speech matters.

    Voting locations restrict campaign materials beyond a certain point.

    Public schools have restrictions on faculty/staff speech as it pertains to elections – not that it makes sense to me.

  2. GBJames
    Posted October 19, 2020 at 10:22 am | Permalink

    sub

  3. Pierre Masson
    Posted October 19, 2020 at 10:23 am | Permalink

    typos:
    “I’ve seen two article in two Woke sites”
    “I’ve seen two articles…”

    “what speech they are too credible to be exposed to”
    did you perhaps intend “credulous”

    • Posted October 19, 2020 at 10:25 am | Permalink

      Yes, I’ll fix all these, thanks. Oy, how could I have written “credible”????

      I’d suggest emailing me, as nearly everyone does, when you see typos.

      • bill
        Posted October 19, 2020 at 10:37 am | Permalink

        blatant censortship, pierre. check your spellcheck privilege.

  4. Mike
    Posted October 19, 2020 at 10:25 am | Permalink

    Seems to me the problem is not really that people say false things online. The problem is that so many other people are willing to believe those false things. Stopping “hate speech” online is sort of like voting Trump out of office: the day after the election one still has 50 million Americans out there who want to MAGA. That’s the problem.

    Prediction: in <5 years we will see race- and gender-based affirmative action hiring of faculty members at universities.

    • Posted October 19, 2020 at 12:28 pm | Permalink

      I agree. I feel like so much dialogue going on nowadays fixates on how to deal with the symptoms of a problem, rather than the problem itself. Why deal with all the ripple effects poorly when you can just address the essential problem well? Rather than censoring people, figure out what’s making people believe in “hate speech” and the best course of action for dealing with it. Depends on how you define “best,” of course.

      In regards to your prediction, I point to California Proposition 16. It’s happening already.

    • Mike
      Posted October 19, 2020 at 1:33 pm | Permalink

      @WIK I share your concern. But the explanation of Prop16 is aimed directly at affirmative action in undergraduate student admissions. The language of Prop16 and its explanation focus on the difference between “discrimination” vs. “preferential treatment”, and emphasize “higher education admissions” and “educational diversity”. So I think faculty hiring is not directly affected.

      But it’s true that the language of Prop16 itself (not the explanation of the ballot initiative) is general and I guess could be applied to other race-based decision making, like Black-only job ads in an Africana Studies department, or trans-only job ads in a Women and Gender Studies department. I suspect that this type of affirmative action is already practiced on the sly, and the difference would be making that practice an actual policy. That would only be one small step beyond current policy (like requiring diversity statements and evidence of promoting diversity by applicants to University of California faculty jobs).

  5. Randall Schenck
    Posted October 19, 2020 at 10:30 am | Permalink

    I have no problem with free speech as it is found in the first amendment and someone mouthing off his hate speech in public is fine with me. However, it is time to make the distinction between what you can say and what you can or cannot do on a platform such as Facebook. The power of the network, such as facebook, titter and others means that they should be subject to regulation just as other media forms are, such as television and radio. The reach of this internet platforms is worldwide and the damage they can do is great. So yes, the ability to put whatever made up crap you want on the internet must be controlled. The platform must be obligated to step in and stop nonsense and conspiracies that have no evidence to them. I believe Europe is way ahead of us in regulating the platforms and we need to catch up. You see it happening already in this election with some minimal control over the junk being thrown out on line. It must be stopped.

    • DrBrydon
      Posted October 19, 2020 at 11:21 am | Permalink

      I think there are a lot of challenges with social media and censorship. Some of them are commercial. If I use a social media platform, I should know what will and won’t be allowed. (Tumblr for instance prohibits “female presenting nipples”.) That way I can choose whether or not to commit to it. There should not be purely aribitrary flagging or deletion of content or accounts, as there is now. We are overdue for adjustment of the Uniform Commercial Code to cover End-User License Agreements, and provide consumer protection online. Until the social media giants can be trusted, they should not be allowed to censor.

      • Randall Schenck
        Posted October 19, 2020 at 12:15 pm | Permalink

        I do not mean to imply the platforms should do the censoring or deciding on this. The regulation must come from the government so whatever is established applies to all. There have already been some very knowledgeable people write books about this and put forward many of the regulations that should be included. All that is needed is for a government, a congress to act.

        One thing I think we all can agree with. Regulations made 230 years ago do not apply very well today. The first amendment was made when we had about 4 million people in this country. No electricity, no computers, no phones, and nothing to get around on but a horse. Surely it is pass time to do a little updating.

        • DrBrydon
          Posted October 19, 2020 at 1:24 pm | Permalink

          I DO disagree about that. I don’t see how the right changes because of the scope of usage. If one man can own a newspaper, and say what he wants, then all men can. We democratized the media (god help us). Unfortunately, most of us humans haven’t received the education that allows us to cope with other people’s freedom.

          • Randall Schenck
            Posted October 19, 2020 at 1:35 pm | Permalink

            I would think republicans get very tired here at this web site. Tell us Doctor, how many years ago did they write the rules that guide you today in your work. I would not dare to go to a dentist today that went though school in the 1930s. As far as using your newspaper to write crap because you own it – that will sell if the name is National Inquirer.

    • Patrick
      Posted October 19, 2020 at 12:23 pm | Permalink

      Who decides? You? No thank you.

      First, the government should not be in the business of regulating speech. We have the First Amendment for very good reasons (read Mill).

      Second, these are private companies. There is no justification for the use of government coercion to force them to censor certain viewpoints.

      Third, Biden might win this election, but it won’t always be your preferred party in power. It is beyond stupid to give them the tools to control what you can say and hear.

      • Posted October 19, 2020 at 12:26 pm | Permalink

        So your “solution” is to stand back and do nothing? Let the 1st Amendment do its thing but nothing more?

        • Patrick
          Posted October 19, 2020 at 1:21 pm | Permalink

          My solution is to answer bad speech with good speech, not with force.

          • Posted October 19, 2020 at 1:36 pm | Permalink

            So do we counter QAnon with “good speech”? How well are we doing?

            • Patrick
              Posted October 19, 2020 at 1:52 pm | Permalink

              We’re doing pretty well. Anyone who does the research is able to find out the truth.

              That may not fulfill your personal urge to use government force to silence the people who believe in that particular conspiracy theory, but your character flaws aren’t a good basis for public policy.

              Please at least be honest about what you’re asking. You want to use force to silence other people. You can decorate it up with all the euphemisms you want, but at the end of the day you are supporting an authoritarian position. If that makes you uncomfortable, it should.

              • Posted October 19, 2020 at 2:08 pm | Permalink

                Your the one misrepresenting. I have no interest in “using government force to silence the people who believe in that particular conspiracy theory”. I only want to challenge those that originate it. There has to be price for deliberately distributing misinformation.

                I’ll admit that it isn’t an easy problem. It would indeed be draconian if we threw people in jail for carrying around a QAnon sign or repeating their conspiracy theories. The only forcing that should occur is to make QAnon back up their theories with facts. Instead, you want to make that 100% the hearer’s job. I just don’t think that’s practical in the modern digital age.

                A somewhat gentle move in the right direction is currently being practiced on social media sites that now label COVID misinformation. Do you have a problem with that? If you do, then I can’t help you and we’re done. If you are ok with it then how far can that idea be taken? There’s broadening the categories of misinformation, establishing authorities that decide what’s true and what isn’t, and possibly increasing the punishment. As to the latter, we could imagine that someone that continues to post misinformation might have their account cancelled. There might also be an appeal process. No authority is right all the time.

      • Randall Schenck
        Posted October 19, 2020 at 1:04 pm | Permalink

        That almost sounds as bad as the old guy who said – Keep the government out of my medicare. Do you not realize who the government is and what they do. Oh, I understand, you must be a republican…say no more.

        • Patrick
          Posted October 19, 2020 at 1:24 pm | Permalink

          I don’t think you could have made a less substantive response, including not replying at all.

          Name calling in lieu of rational argument is a defining characteristic of the Woke. That doesn’t make it any more effective.

          Now, would you care to try to address the flaws in your position or do you want to continue to embarrass yourself with your baseless and incorrect insults?

  6. bill
    Posted October 19, 2020 at 10:31 am | Permalink

    no bounds on speech coupled with anonymity and the reach of social media allow faceless persons to shout fire in our crowded theater with no recourse.

    allowing hate speech in such situations outs no one who doesn’t wish to be outed.

    as to your question, it should be legal to praise hitler; on your own dime. it should be legal for me to say leave my premises when you do so.

  7. Posted October 19, 2020 at 10:39 am | Permalink

    I find the two articles referenced above hateful and threatening, and they make me feel unsafe. I would even go so far as to say that they constitute violence. They should be censored.

    • EdwardM
      Posted October 19, 2020 at 10:49 am | Permalink

      No. I’m the decider!* Half of the NYT article should be censored and the authors jailed. The NY article can stay…but I’m watching them. They better be careful what they say.

      *we get to take turns…right?

      • Posted October 19, 2020 at 11:05 am | Permalink

        Yes, it’s my turn now. I say when my turn is over and nobody else.

        Furthermore questioning of the preceding paragraph is hate speech, after all it will offend me to the core.

    • ThyroidPlanet
      Posted October 19, 2020 at 10:51 am | Permalink

      Oh absolutely. Furthermore, any bad things that happen now must be, ipso facto, blamed on them, being bad-things-adjacent/associated, and the fear of being called bad names in public.

  8. Posted October 19, 2020 at 10:46 am | Permalink

    We should hardly be surprised to find any legal architecture laid out in the 18th century ill-equipped to handle the sociopolitical woes of the 21st. I’m almost dogmatically suspicious of any attempt to regulate speech and expression, but social media platforms represent an unprecedented shift in the way humans relate to one another. The consequences have been demonstrably corrosive, both psychologically for individuals and for society writ large. Probably censorship isn’t the best route forward, but clearly much more needs to be done if we’re going to preserve a functional representative government and a free and open society—-and it seems abundantly clear that Facebook, Twitter, Google etc. aren’t going to take the initiative.

    • savage
      Posted October 19, 2020 at 11:30 am | Permalink

      Belief in conspiracy theories has been in decline for decades. It is simply not true that before the internet there was a Golden Age where everybody did well by blindly trusting their local paper.

      I suspect the internet has been harmful to conspiracy theories, in the same way it has harmed Christian fundamentalism: Everyone who is unsure can google things now and no longer has to trust in others doing the thinking. A great development for the enlightenment.

      • EdwardM
        Posted October 19, 2020 at 11:38 am | Permalink

        True, the intertubes was harmful to older conspiracy theories and other crackpot ideas in the olden days but it is perfectly capable of inventing whole swaths of new ones.

      • Greg Geisler
        Posted October 19, 2020 at 11:55 am | Permalink

        The anti-vaxxer movement has grown exponentially thanks to the internet. And it becomes a much greater threat during a pandemic.

        https://www.theguardian.com/us-news/2020/apr/27/us-warning-pandemic-anti-vaxxers

      • Posted October 19, 2020 at 1:44 pm | Permalink

        Taken as a whole, the merits of the internet are harder to evaluate. Certainly its advent has been a boon to swarms of worthwhile enterprises, in large part by simply democratizing access to knowledge and information.

        But speaking specifically of social media, the balance is far more strikingly negative. Social media effectively exports all the basic foibles of human thinking–the pyschological biases and predispositions that make people susceptible to infectious nonsense in the first place–into an evolutionarily unprecedented digital landscape.

        On social media, everyone with a mild taste for harebrained nonsense can find every other simiiarly disposed crackpot and together build a new, impermeable, mutually-reinforcing factory. And they won’t have to work very hard to do it–a conscientious algorithm will likely make the necessary introductions for them. Meanwhile, people earn plaudits from strangers off wrecking the lives of other strangers while charismatic blowhards and hucksters get rich by plugging into existing networks of “friends” and convincing them that the parents of massacred children are puppets in some nefarious deep state conspiracy.

        Those specific claims cannot be made of the internet writ large, nor can the many benefits of the internet excuse the harms caused by social media.

      • Posted October 19, 2020 at 7:41 pm | Permalink

        I think when it comes to the WWW and it’s ramifications in this context, it’s a psychological arms race of ideas. It can ramp up and spread either way, for or against.
        The problem starts when counterspeech with/or evidence against any given claim is not acted on. Who wants that job? Journalist? editors? broadcasters? well yes all subject to counterspeech and all obligated to my mind to publish both sides, that ain’t happening.
        Down the rabbit hole I go… critical thinking, reasoning, when in short supply allows a ballooning of cognitive cabbage to propagate. One thing it does tell us (WWW) is where we are at as a species looking for truths, commitment to better ourselves in all facets of human-hood.
        This man, our host is doing his darndist, we play the crew and bench to back it up with the rules of free speech simply by engaging with this site.
        I make the assumption that that’s what we want, sometimes though (sorry ProfE) a little humour can nullify an insult and we get a good laugh.
        I saved a fat furry bush fly today by opening a door.

  9. Posted October 19, 2020 at 10:48 am | Permalink

    I’ve never visited America but am an admirer of the First Amendment from afar. I think the 1A is one of the most wonderful things politics and history have ever produced. In Scotland, as I’ve mentioned before, there is a new Hate Crime Bill going through parliament which has stirred up opposition from pretty much everyone because it is so vaguely worded that it could prove a harsh tool of censorship. So I don’t like our European way of doing things on this front, and it’s dispiriting to see some in America taking the anti-free speech line. America has disappointed in many other ways in recent years, of course. But I still admire it. As Hitch used to say, ‘Build up that wall, Mr Jefferson!’. Perhaps a new slogan is needed: ‘Protect that freedom, Mr Jefferson!’

    Incidentally, wouldn’t it be nice to have a state which combined the best of Europe with the best of America? Our ‘socialist’ healthcare with First Amendment freedoms. Glorious, that would be!

    • Jon Gallant
      Posted October 19, 2020 at 12:24 pm | Permalink

      Can’t something like that be found in a place called Denmark? Not Sweden, where the health care system may be the best in the world, but free speech is curtailed by a conformism that seems a hybrid of old style Lutheranism and Soc Dem nanny-stateism.

  10. Sastra
    Posted October 19, 2020 at 10:48 am | Permalink

    And once the laws banning “hate speech” are in place — and the term “hate speech” is defined with a lot of generalities and tautologies — the type of speech which specifically applies will change from administration to administration.

    The “woke” might ban statements like “Education and hard work can help people work their way out of poverty” and “there is a conflict between sex-based rights and transgender rights.” A Trump administration would consider “there is no God” and “Trump has tiny little hands” forms of hate speech which incite violence. It will become another political football, only one which brings the power of the State against dissidents.

    I understand the problem. But I see no realistic way to keep any such law realistic.

    • Posted October 19, 2020 at 10:51 am | Permalink

      Good point, one I’ve often made. Once you give up these freedoms to the state, they can be used by any ideological faction which holds power to suit their own ends. Give it up to wokery, and regret it when a right-wing government changes the bounds of hate speech and uses such laws against you…

    • DrBrydon
      Posted October 19, 2020 at 11:05 am | Permalink

      Yes, I agree. Short of not allowing people with different views to be elected, the rules for what should be censored would continually change. People who suggest some mild censorship assume that people with opinions like theirs will be the censors. And it’s not like we haven’t had this before, it just tended to be on a local level. Boston’s “Watch and Ward Society” (“Banned in Boston!”) is only the most familiar example.

    • Posted October 19, 2020 at 11:33 am | Permalink

      Oh don’t worry. Neil Gorsuch will just read the text of the law, which will clearly adjudicate such cases once and for all. By magic.

  11. jpwolff1
    Posted October 19, 2020 at 10:51 am | Permalink

    Europe is doing better these days only because we have sunk to new lows in many areas in the past four years.

  12. Posted October 19, 2020 at 10:58 am | Permalink

    After all, is our democracy really better than France or Germany?

    No it isn’t. But the reasons why it isn’t have nothing to do with your free speech protection.

    You only have to look at the man in charge of the USA to understand the dangers of forbidding certain types of speech. He regards practically every negative thing published about him as hate speech. Are you going to let him or his DoJ enforce the hate speech laws?

    Here in Britain we have hate speech laws and I don’t think any good has come out of them. There have been convictions of people for hate speech, mostly for making bad or badly judged jokes but all that does is bring the speech in question to the attention of more people and make a lot of people think “haven’t the police got better things to do” or “bloody woke snowflakes”.

    Hate speech laws don’t change people’s views, they entrench them. You aren’t going to persuade people who think trans women should not be allowed in women’s toilets that they are wrong by banning them from saying so. You can ban people from saying immigration from Muslim countries is bad, but they still get to vote and they won’t vote for you.

    • savage
      Posted October 19, 2020 at 11:40 am | Permalink

      I disagree. As Steve Sailer put it: What goes unsaid eventually goes unthought. Censorship is an effective tool to suppress opponents partly because it makes their coordination a lot harder. My impression from having lived in the UK is that islamists are not the least bit scared of hate speech laws, unlike their opponents. And that the existence of these laws is sheepishly accepted by the majority of the population.

      • Posted October 20, 2020 at 3:22 am | Permalink

        What exactly are you disagreeing with?

        • savage
          Posted October 20, 2020 at 4:05 am | Permalink

          Your claim that hate speech are ineffective, in that they do not change people’s views.

          • Posted October 20, 2020 at 5:51 am | Permalink

            Well the UK has new hate speech laws. How many homophobic people do you think will have had their minds changed by not being able to express their views in public forums? Do you think a law against Holocaust denial will reduce anti semitism?

  13. Posted October 19, 2020 at 11:01 am | Permalink

    I am not so much interested in suppressing hate speech as suppressing false speech. The concern over hate speech more reflects the ongoing battle between the far Left and far Right. Although the division is significant, it’s a sideshow compared to the problems due to misinformation. A recent poll says:

    Republicans, in particular, have been drawn to QAnon, with 38 percent of GOP adults who had heard of QAnon saying they believed the claims were at least somewhat accurate, compared to 18 percent of Democrats and 16 percent of independents.

    Obviously the people that believe this stuff deserve most of the blame. However, it proliferates mostly without anyone noting that the claims made by Q are baseless and can be dismissed easily by logical argument. We shouldn’t rule out all finger pointing at pedophiles but there needs to be some price paid by those that make such accusations falsely.

    I’m not saying this will be easy. A big problem is determining who people will trust to make decisions as to which messages are allowed, which are filtered out, and which will be accompanied by “fact check” notices. It certainly can’t be done by big tech companies like Facebook, Google, Amazon and the like. They have conflicts of interest since they make money off such communication. The process needs to be centralized so the companies can’t be played off each other. This likely means it needs to be a governmental process but it must be relatively out of reach from being politicized.

  14. KD
    Posted October 19, 2020 at 11:02 am | Permalink

    Abstract debates about free speech are all dandy, but the MSM consists of 5 corporations, and the social media monopolies are about 4 in number. You can have all the free speech protections against government restrictions in the world, but if you have a nine-legged octopus in control of the platforms, you might as well have a government bureau for woke neoliberal capitalism regulating speech.

    We need effective anti-trust enforcement in the media landscape in the first instance.

    “Hate Speech” is simply Lenin’s who/whom. Its not universal by definition, its inherently political. Criticism of whichever groups have the most political pokemon points will be “hate speech”, and you can call for the annihilation and the extermination of whatever groups fall into the cockroach category. “Hate speech” in Turkey is mentioning the Armenian genocide after all.

    • EdwardM
      Posted October 19, 2020 at 11:19 am | Permalink

      There is a place for hate speech codes though – as a multiplier in jail terms for violent offenses. This is the only appropriate use (IMO) of any definition of hate speech, whatever that may be. Though the speech itself should not be illegal (generally; the noted exceptions to the 1st aside), it speaks to the motive for the crime committed. If shown to be a factor, I think the courts should be able to consider that when determining punishment.

      • KD
        Posted October 19, 2020 at 11:29 am | Permalink

        Agreed.

      • Adam M.
        Posted October 19, 2020 at 11:46 am | Permalink

        It’d still be political, as in the cases where non-whites can punch white people in the face, or even shoot them, while yelling “I hate white people!” and have it ruled not a hate crime…

        • EdwardM
          Posted October 19, 2020 at 11:47 am | Permalink

          Do you have any evidence that this has happened?

          • KD
            Posted October 19, 2020 at 1:53 pm | Permalink

            This is the FBI:

            Racial/ethnicity/ancestry bias (Based on Table 1.)
            Among single-bias hate crime incidents in 2018, there were 5,155 victims of race/ethnicity/ancestry motivated hate crime.

            47.1 percent were victims of crimes motivated by offenders’ anti-Black or African American bias.
            20.1 percent were victims of anti-White bias.
            13.0 percent were victims of anti-Hispanic or Latino bias.
            4.1 percent were victims of anti-American Indian or Alaska Native bias.
            3.4 percent were victims of anti-Asian bias.
            3.4 percent were victims of bias against a group of individuals in which more than one race was represented (anti-multiple races, group).
            1.9 percent were victims of anti-Arab bias.
            0.5 percent (26 individuals) were victims of anti-Native Hawaiian or Other Pacific Islander bias.
            6.5 percent were victims of anti-Other Race/Ethnicity/Ancestry bias.

            https://ucr.fbi.gov/hate-crime/2018/topic-pages/victims

            Now you can question reporting as well as prosecutor’s decisions to pursue hate crimes, but officially in 2018, 20.1% of hate crimes prosecuted were anti-white hate crimes, and it would appear that the stats are pretty representative of all.

            • EdwardM
              Posted October 19, 2020 at 2:10 pm | Permalink

              So that would be; “No, there aren’t any examples of what Adam alleges”. On the contrary, based on FBI statistics it seems that Adam is, in fact, blowing smoke.

              • KD
                Posted October 19, 2020 at 3:51 pm | Permalink

                As I said, the problem with crime statistics is reporting rates (unreported incidents) and charging decisions. There may be far more incidents occurring than get prosecuted, and there may be racial disparities (although they could run in different directions from Adam’s concerns).

                But yes, its pretty clear that there have been a number of anti-white hate crimes committed and prosecuted at least in 2018.

          • Adam M.
            Posted October 20, 2020 at 2:55 pm | Permalink

            Sure, here’s a random one – the first web search result I got. https://www.washingtonpost.com/news/worldviews/wp/2016/07/07/canadian-judge-punching-a-caucasian-and-yelling-i-hate-white-people-isnt-a-hate-crime/

        • KD
          Posted October 19, 2020 at 1:35 pm | Permalink

          True, but motivations for committing a criminal offense have always been an aggravating or a mitigating factor in sentencing. A crime of violence motivated by an impersonal hatred of the group that a person belongs to–distinct from a personal grudge–is a particularly vicious act.

          • KD
            Posted October 19, 2020 at 1:46 pm | Permalink

            You can have politics operative in a case aside from hate speech. The penalty for assaulting a judge or a little old lady at the grocery store is probably different than the penalty that comes down for a Saturday night at a biker bar. Its a political judgment, not a purely analytical judgment.

        • Ken Kukec
          Posted October 19, 2020 at 3:55 pm | Permalink

          That’s not a thing.

          Jurisdictions that recognize hate crimes, don’t do so on the basis of protecting particular classes of people; they do so on the basis of the motive of the offender — which is to say, they enhance the penalties for underlying crimes that are committed “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person[.]” See e.g. 18 USC section 249. Accordingly, the exact same hate-crime laws apply to black on white crime as to white on black, and to gay on straight as to straight on gay, and to Jew on gentile as to gentile on Jew, and so on (providing, of course, the requisite animus can be proved).

          But if (as you claim) you’re aware of a hate-crime statute that privileges some groups over others, please post a link. I’d like to have a look at it.

    • Posted October 19, 2020 at 11:40 am | Permalink

      Ya beat me to it. It’s the anti-trust, and its consequence of a diverse media landscape, that is key. This will also encourage the abandonment of the false “he said, she said” version of “objectivity” that arose when media corporations tried and succeeded in achieving near-monopoly over large areas of readership/viewership.

      The “he said, she said” version of “reporting” sets up a race to the bottom. It’s no wonder we have rampant lies. The only wonder is why it took so long to get here.

  15. jezgrove
    Posted October 19, 2020 at 11:13 am | Permalink

    I’ve no idea what the solution is, but the ability to post blatant lies have real-world consequences that harm innocent people who have already endured tragedy beyond anything most of us can imagine: https://en.m.wikipedia.org/wiki/Sandy_Hook_Elementary_School_shooting_conspiracy_theories#Harassment_by_conspiracy_theorists

    If it wasn’t for nonsense like the Birther Movement you-know-who wouldn’t be where he is today. And doubtless on November 3, some people will be using their First (and Second) Amendment rights to intimidate as a means of voter suppression in order to keep him there.

    • jezgrove
      Posted October 19, 2020 at 11:16 am | Permalink

      Oops, clumsily worded. I don’t mean “rights to intimidate” but “rights in order to intimidate”.

  16. DrBrydon
    Posted October 19, 2020 at 11:13 am | Permalink

    Aside from the fact that we citizens of the United States have agreed to a compact that says we will NOT restrict one another’s speech, I think there is another issue, which I’ve not seen discussed. Restricting speech will only cause resentment among the individuals or groups that are censored. Those people will not feel that they are living in a democracy, and so we will create another group of disaffected people who will want to change the government, and have little love for our current institutions. I think as a rule, people nowaways have little appreciation of how valuable civil peace is, or what it’s opposite would mean.

    • bill
      Posted October 19, 2020 at 11:27 am | Permalink

      i don’t recall this compact. the closest i get is the first amendment, but that only applies to government control of speech.

      when a business limits speech on its premises or platform, that’s the business, not the government. not sure what that has to do with democracy.

      • DrByrdon
        Posted October 19, 2020 at 1:18 pm | Permalink

        Yes, the compact is the Constitution. What else do we mean when we say government cannot do something in a democracy, than to say that we cannot do it to one another?

        • bill
          Posted October 19, 2020 at 1:35 pm | Permalink

          our understanding of the manner in which the constitution works might differ. i see my rights as infinite, limited only by my capacities, and where they conflict with others rights.

          in contrast, i see the government’s rights as delineated and limited.

          this issue offers one example; the government can’t tell you not to wear an ‘eat at mcdonald’s’ sign.

          i can, and if you walk around my restaurant wearing one, might.

        • Ken Kukec
          Posted October 19, 2020 at 4:13 pm | Permalink

          The rights set out in the Bill Rights solely restrict governmental action. (After all, the First Amendment begins “Congress shall make no law …” (although the courts have extended the restrictions therein beyond congress to all governmental entities).

          The Bill of Rights has nothing to say about how private citizens (and private corporations) — viz., non-state-actors — treat one another.

  17. Posted October 19, 2020 at 11:30 am | Permalink

    “. . . In other words, good ideas do not necessarily triumph in the marketplace of ideas.”

    What this really means is “our ideas”—the ideas of those who agree with me—do not necessarily triumph in the marketplace of ideas. Which in turn means either that “our ideas” are not “good ideas” or that we have not expressed them forcefully enough.

    I would argue, with John Milton, that while the truth can be suppressed over the short term, it will eventually win out in “the marketplace of ideas.” I would go so far as to say that if it doesn’t win out, then it shouldn’t win out. Let false ideas be corrected over time by the truth or not at all.

    • EdwardM
      Posted October 19, 2020 at 11:40 am | Permalink

      “Let false ideas be corrected over time by the truth or not at all.”

      ..not at all? Really?

      I’ve got to say, I’m dumbfounded here.

    • Posted October 19, 2020 at 11:42 am | Permalink

      This is hopelessly naive. Do we all agree that QAnon’s vile conspiracy theories aren’t likely good ideas, even after historians have had the time to look at them. They are doing their damage right now. We need solutions that can help immediately. Arguably, misinformation of various kinds elected Trump as US President. Is it sufficient to just look back and say, “Yep, I guess so.”? I don’t think so.

      • Posted October 19, 2020 at 12:17 pm | Permalink

        “Do we all agree that QAnon’s vile conspiracy theories aren’t likely good ideas.”

        Obviously we don’t “all agree,” Paul, or QAnon’s vile conspiracy wouldn’t exist.

        I’m aware that my stand sounds naive and I appreciate EdwardM saying he’s “dumbfounded” rather than blasting me. The point, as always, is who gets to decide what’s a good or bad idea. To my mind, suppressing a “bad idea” rather than demonstrating why it’s bad is evidence that your own idea is a weak one.

        But ok, maybe “or not at all” is too extreme a position. I’ll think on it. In the meantime, is there anyone out there who agrees with me?

        • Posted October 19, 2020 at 12:57 pm | Permalink

          I should have defined my “we”. I meant all the smart commenters on this website.

          “The point, as always, is who gets to decide what’s a good or bad idea.”

          Yes! Free speech says we shouldn’t let anyone decide which ideas are good and which are bad. I certainly agree when it comes to the expression of honestly held opinion but not when it comes to the deliberate dissemination of lies.

        • EdwardM
          Posted October 19, 2020 at 1:00 pm | Permalink

          I do, actually. At least with this bit;

          To my mind, suppressing a “bad idea” rather than demonstrating why it’s bad is evidence that your own idea is a weak one.

          That’s spot on….and thanks for the classification on the comment; I am less amazed now.

          • EdwardM
            Posted October 19, 2020 at 1:00 pm | Permalink

            ^clarification

        • eric
          Posted October 19, 2020 at 2:08 pm | Permalink

          I mostly agree. That internet sources spread false and damaging rumors does not make me leap to demanding government censorship over speech, for at least two reasons. First, because not every social problem requires a legal or regulatory solution (and of all political types, us liberals should really not be reaching for that first). Secondly, because liberals calling for greater censorship seem to forget that the institutions they want to grant censorship power to may not – currently, or int the future – agree with them on what to censor.

          I find an exercise to be useful. It’s sort of like the ‘I cut the cake, you get first piece’ exercise. Let’s posit you want censorship. Very well, you play the legislator and I’ll play the executive. You tell me how expansive my power is to censor. Then I’ll decide who and what ideas to use it on. And oh, by the way, for purposes of the game, you can assume I really don’t like you. Then, once we’ve played that game, we can reverse roles and play it again. Though that second iteration might be boring, since in my role as legislator I’m not planning on giving you much power.

      • Patrick
        Posted October 19, 2020 at 12:45 pm | Permalink

        There are two choices. Respond to bad ideas peacefully with good ideas or respond with force to impose your ideas, good or bad. If you choose force, you can’t complain when others use force against you.

        I’m appalled at the number of people here begging for the government to restrict their freedoms, solely because they think it’s a good idea to restrict someone else’s freedom. You’re not liberals, you’re authoritarians.

        • Posted October 19, 2020 at 1:03 pm | Permalink

          Your phrase “restrict their freedoms” is disingenuous. As I’m sure you know, there are lots of possible freedoms that are restricted and for good reason. The intelligent discussion is on which freedoms are to be restricted.

          Should people have the freedom to knowingly spread lies? If we naively apply the free speech principle, the answer is “yes”. We expect the hearer to do research and find out if they believe the speaker. What if that’s not practical? Do we just say “free speech” and throw up our hands?

          • chrism
            Posted October 19, 2020 at 1:08 pm | Permalink

            “Should people have the freedom to knowingly spread lies? If we naively apply the free speech principle, the answer is “yes”.”

            I would argue with that being “naive”. It might be better than the results of the social engineering you seem to promote in your posts. I’m not smart enough to foresee all the consequences of such engineering, and thus I assume you are not either. On the other hand, if you want to make a law that forbids people to lie, well, who is actually being naive here?

          • Patrick
            Posted October 19, 2020 at 1:09 pm | Permalink

            If it offends you that I use the term “restrict their freedoms”, good. It shows that you can see that what you are proposing is authoritarian and against Enlightenment values. The next step is to stop supporting that approach.

            Yes, people should have the right to spread what you think are lies, just as you have the right to spread what you think is truth. The costs of prohibiting free expression are too high. None of the authoritarians here, including you, are considering those costs in your haste to silence those with whom you disagree.

            Again, you have the choice between reason and force. Force is the one that will come back to bite you.

            • Posted October 19, 2020 at 1:19 pm | Permalink

              Your worldview seems to embrace the idea that there’s no such thing as truth, just what each of us believes. If we don’t have completely free speech, then someone’s opinion must be being forced on others. That’s what we seem to have now. Republicans and Democrats all tell their “truth” and voters choose which they believe.

              I don’t subscribe to this worldview. I think there is such a thing as truth. Sure, there are opinions and beliefs, but there are also facts and lies. I’m not talking about suppressing anyone’s opinion. But I do want to make the spreading of lies cost the spreader more than it does now.

              • Patrick
                Posted October 19, 2020 at 1:58 pm | Permalink

                I definitely think there is such a thing as truth. I think the best way to discover it is in the marketplace of ideas, with robust debate. I don’t trust anyone, including myself, to control what other people say or can hear because I might be wrong.

                Just as you are wrong to promote authoritarian solutions.

              • Posted October 19, 2020 at 2:14 pm | Permalink

                Just as you are wrong to label someone an “authoritarian” just because you disagree with their ideas. You know people hate that label which is why you use it. It adds nothing to our conversation as every government is authoritarian by nature. What we should be discussing here is what authority governments should be given. You are trying your best to suppress my speech. Some believer in freedom you are!

          • eric
            Posted October 19, 2020 at 2:28 pm | Permalink

            Should people have the freedom to knowingly spread lies?

            Libel and slander are already crimes; you don’t need to modify US free speech law to criminalize them. Demonstrate someone is knowingly spreading lies for malicious intent, you can shut down their speech…and probably collect damages, too.

            So how do you want the law changed? Should we put the burden of proof on the accused to prove to the court or a jury that they didn’t commit a crime, rather than putting the burden on the accuser to show they did?

            • Ken Kukec
              Posted October 19, 2020 at 4:40 pm | Permalink

              Technically, libel and slander are actionable strictly in civil lawsuits, not criminally. (The US has had a couple of unhappy experiments with criminal seditious libel laws, regarding defamatory statements directed against the government, but those laws never applied to statements pertaining to private individuals.)

              Also, generally speaking, the only remedy for libel and slander is money damages. Blocking publication in the first instance is generally prohibited by the First Amendment’s “prior restraints” doctrine. (There is some mixed authority in the lower federal courts regarding whether a publication, having once been found to be defamatory and false in a post-publication lawsuit can be enjoined from further publication, but SCOTUS has yet to pass upon this issue definitively.)

            • Dragon
              Posted October 19, 2020 at 5:21 pm | Permalink

              @eric
              “Demonstrate someone is knowingly spreading lies for malicious intent, you can shut down their speech…and probably collect damages, too.”
              No, you can’t currently unless that lie with malicious intent is against an individual or corporation (libel/slander) or is in the very tailored laws against ‘fraud’. Homeopathy and some supplements are colloquially fraud, but the laws have specific exemptions for them (due to lobbying by rich fraudsters). US v Alvarez was colloquially fraud, but SCOTUS decided that law was unconstitutional. I can lie about whether covid-19 kills people, or whether HIV causes AIDS, or whether Sandy Hook was a scam, and there is no one who can collect damages, because those subjects are all things, not people (Alex Jones got on the hook for Sandy Hook lies when he specified the parents).

              The number of lies with malicious intent that you cannot shut down is far greater than you can.

              I have little problem with ‘hate crime laws’ and a big problem with ‘hate speech’ laws because I don’t trust the deciders.

              I think we could update laws to prosecute more fraud. But not hate speech. Eric, you weren’t quite going in that direction. I wanted to add that realm to the discussion. I agree with you that we should not change the burden of proof.

      • Posted October 19, 2020 at 2:32 pm | Permalink

        “They [QAnon] are doing their damage right now. We need solutions that can help immediately.”

        That’s exactly the kind of thinking that gets abortion doctors shot: “They’re killing babies right now. We need to stop them immediately.”

        The other route—to make the case in the “marketplace of ideas” that abortion is murder—is slower and more difficult, but (happily) it’s the only one consistent with a democratic society.

        Generally, Paul, I think the distinction between fact and opinion is less clear-cut than you suggest below.

        • Posted October 19, 2020 at 4:32 pm | Permalink

          So talking about stopping QAnon from telling lies is like calling for an abortion doctor to be shot? That’s ridiculous and insulting. Have you lost your way?

          • Posted October 19, 2020 at 6:23 pm | Permalink

            Paul Topping:
            “So talking about stopping QAnon from telling lies is like calling for an abortion doctor to be shot? That’s ridiculous and insulting.”

            To you, perhaps, but to a pro-lifer comparing the “damage” of spreading a conspiracy theory to the damage of murdering millions of unborn babies would be ridiculous and insulting. I’m surprised, Paul, that on this issue at least you can’t seem to project yourself into any view other than your own.

            • Posted October 19, 2020 at 7:13 pm | Permalink

              You seem to be measuring these two things solely on the level of emotion of the most rabid believers in each. Surely we can do better than that. With abortion, rational people on both sides agree that it is a tough issue. I don’t regard people who believe abortion should be illegal as insane though if they kill a doctor, they’re still committing murder and deserve to be punished accordingly. I’m willing to go with whatever the majority decides. On the other hand, many conspiracy theories are not based on any evidence. I believe that if Trump could be charged with making false statements without evidence, it would have likely prevented him from pursuing it. The fact that he had no fear of any punishment let him keep on saying it. He kept talking about evidence but never showed any. In a court, he would have had nothing to present in his defense and gone to jail. It might just be his “opinion” but it is something that can be adjudicated by looking at the evidence.

              • Posted October 19, 2020 at 7:30 pm | Permalink

                Paul Topping said,
                “I believe that if Trump could be charged with making false statements without evidence, it would have likely prevented him from pursuing it.”

                If politicians could be charged for making false statements without evidence, the entire US government would grind to a halt and the courts would be swamped for centuries. Thank you, Mr. Topping! Laughter is indeed the best medicine.

              • Posted October 20, 2020 at 12:37 am | Permalink

                Ha ha very funny.

  18. JP415
    Posted October 19, 2020 at 11:56 am | Permalink

    Part of the problem is that the First Amendment is designed to deal with speech but now days a lot of misinformation can be spread through doctored photographs or videos (misleadingly edited or digitally altered). Also, a lot of fake news stories on Facebook are visually designed to resemble legitimate newspapers or magazines. Social media misinformation is more akin to counterfeiting than actual speech. It has to be reined in somehow or democracy can’t function properly.

    • Patrick
      Posted October 19, 2020 at 12:45 pm | Permalink

      The founding fathers were quite aware of the printing press.

      • JP415
        Posted October 19, 2020 at 2:19 pm | Permalink

        That’s a nice bon mot, but not relevant to my point.

        Have you heard the term “deepfake”?

        • eric
          Posted October 19, 2020 at 2:36 pm | Permalink

          I think most people today are quite well aware of technology’s ability to create fake imagery that looks convincing. IMO people don’t believe Hilary Clinton set up a pedophile ring in the basement of a pizza parlor because the typeface on the article was just so darn legit. They believe it because they want to, because the thought of someone they despise doing that has such as strong pyschological/emotional appeal that their normal critical faculties just shut down. It’s not the quality of the fake, it’s the message they want to hear. Give them a you tube video of someone running on water or an equally high quality fake article about Trump starting a pedophile ring, they’ll have no problem at all telling you how easy it is for technology to produce fake stuff and how we should all know better than to believe everything we see on the internet.

          • JP415
            Posted October 19, 2020 at 2:51 pm | Permalink

            people don’t believe Hilary Clinton set up a pedophile ring in the basement of a pizza parlor because the typeface on the article was just so darn legit.

            True, but I’m more concerned about ordinary people—not public figures—who don’t have the means to defend themselves. Another commenter here brought up the families of the Sandy Hook victims, who have had to endure libel and harassment because of misinformation spread by Alex Jones. Sure, they can remedy the situation by going to court, but that’s a long arduous process that puts a financial strain on a lot of people—and often the damage to someone’s reputation is already done by that point. Social media companies should accept responsibility for the content that is being distributed on their platform. If Facebook et. al paid some kind of penalty, they would have an incentive to police their content better.

            • Ken Kukec
              Posted October 19, 2020 at 4:57 pm | Permalink

              If Facebook et. al paid some kind of penalty, they would have an incentive to police their content better.

              True enough, but such liability would also have a “chilling effect” on their willingness to publish entirely legitimate speech for fear of it coming anywhere near the verboten line. (If Facebook had to be as concerned over liability for libel as is, say, Random House, Facebook would probably end up putting up only so many posts each year as Random House publishes books.)

              There are no easy answers here, only potential solutions involving trade-offs, none of them entirely satisfactory.

              • Posted October 19, 2020 at 5:17 pm | Permalink

                I do think the parallel with the courts is a good one to look at. I remember reading long ago that a big problem with modern court systems is that they make it really difficult to settle small disputes. This was less of an issue in olden times because someone could just take their issue in front of a local judge and get a quick ruling. If it was easier to get quick and cheap adjudication, perhaps it would reduce violence. Might some sort of lightweight justice system work for clamping down on misinformation? There would have to be jurisdictional limits and the ability to appeal. I could even see AI involved in settling some misinformation issues. For example, if someone tried to pass a message via social media that was substantially similar to one that had already been judged false or dangerous, it could be automatically blocked. Its author would be notified and, if they disagreed, they might be able to appeal.

              • JP415
                Posted October 19, 2020 at 5:43 pm | Permalink

                If Facebook had to be as concerned over liability for libel as is, say, Random House, Facebook would probably end up putting up only so many posts each year as Random House publishes books.

                We can only hope!

          • Posted October 19, 2020 at 4:26 pm | Permalink

            Ok, they’re the easy cases. What are you going to do about the hard cases? What are you going to do when the fakes are impossible to detect or can only be detected by professionals who are in a position to spend days examining it?

  19. rickflick
    Posted October 19, 2020 at 12:03 pm | Permalink

    What is so disheartening is how suddenly enemies (foreign and domestic) have become so skillful at using misinformation against our cherished way of life. This must be driving the calls for making a fundamental change in our definition of free speech.

  20. Historian
    Posted October 19, 2020 at 12:05 pm | Permalink

    Professor Coyne writes regarding speech that praises Hitler and the like: “To ban such things implicitly assumes that Americans are stupid, and will be easily swayed by arguments that are false but sound good.”

    About 40% of the population or more believes whatever Trump says, or at least are not dissuaded from voting for him. Countervailing speech has done nothing to break his hold on his cult. Free speech is a good thing, but one must forever be vigilant that free speech can end free speech.

    • rickflick
      Posted October 19, 2020 at 2:04 pm | Permalink

      You’ve made an argument for rule by philosopher king. 🤫

    • KD
      Posted October 19, 2020 at 4:09 pm | Permalink

      People will support speech that serves their perceived interests, regardless of coherence or soundness of the underlying ideas.

      Trump outrages many elites who view themselves as gate keepers. Many supporters of Trump don’t so much believe Trump as they resent and distrust the gate keepers.

      “Fake News” and the rest is based on the idea that the MSM are legitimate authorities or somehow objective. Having spent the last 4 years snarking at Trump in a partisan manner:

      https://www.npr.org/2017/10/02/555092743/study-news-coverage-of-trump-more-negative-than-for-other-presidents

      . . . they are only fooling themselves.

      If you look at the mainstream left, you have a bunch of the pomo identity politics relativist cant, combined with a blatantly partisan MSM. Then CNN dresses up in an Eric Cartman outfit and cries “Respect My Authoritay!” A first rate clown act.

      Sure the MSM has blown it and is afraid of alternative media knocking them out, and the tech oligarchs just want to operate a private Chinese-style social credit system because they want to rule as overlords. They may all get away with implementing some kind of totalitarian censorship/social compliance regime, but it is going to be based on power, not legitimacy.

      • Posted October 19, 2020 at 5:02 pm | Permalink

        The problem with MSM’s negative coverage of Trump is that there’s so much he does that deserves negative coverage. We can have a discussion on whether a particular Trump act is worthy of negative coverage, of course, but his sheer number of outright lies justifies the quantity of negative coverage. That alone does not make the MSM biased against Trump, just biased against false politicians. I’m not saying there isn’t any bias, just that the massively negative coverage is more due to Trump’s actions than to negative bias.

        • KD
          Posted October 19, 2020 at 7:14 pm | Permalink

          Your taking this the wrong way. Watch David Brooks, he always does this on the one hand, blah, but on further reflection, blah.

          Its very effective, he comes across as if he is being fair and thoughtful even if its complete schlock.

          You can’t persuade people that you are some impartial, objective purveyor of truth and constantly run partisan attacks on the opposition.

          The media is trying to have it both ways and it isn’t going to work. The comment isn’t about Trump or his record or the coverage.

          There is nothing wrong with hyper-partisan coverage, and there is nothing wrong with manufacturing a veneer of objectivity and fairness. You look like a fool from the outside if try to do both at once. [I haven’t mentioned certain emails but in this case, the media cover up might do worse damage to the cause than actually letting it hit the news cycle for a couple of days.]

  21. eric
    Posted October 19, 2020 at 12:25 pm | Permalink

    I’ve argued that, as far as possible, platforms with that much reach and power should strive to abide by the First Amendment.

    I agree, but I think we need some additional legal structures to make that happen. As long as corporations think they can be successfully sued for their third person content, they’ll self-regulate it. What we need is a legal framework that codifies some sort of public-private forum, where a company that voluntarily chooses to create such a forum agrees to limit their regulation of content (i.e. to time place manner restrictions, and things the courts define as not free speech like threats or incitement), in exchange for protection from litigation for third party content.

    why can’t America be like Europe?

    We could, and it probably wouldn’t be the end of the world IMO. It’s just that I think our system is better.

    According to the New York Times, we’re “drowning in lies.”

    The solution to that is more critical readers, not censored sources. I’m not sure how to social engineer that, except that some of it may come naturally as our younger generations grow up in this “infinite news sources, most of them crap” environment which is, frankly, alien and harder to navigate for people over 30-40 or so.

    if you have any predictions like the two I’ve given, let us hear them.

    Well I’ve said this before, but since I seem to be in the minority on this issue, I’ll repeat it for the record: I think wokeism is a generational trend, not some completely new and/or unalterable change in society, and therefore I predict much of it’s excesses will go away the same way the satanic panic (80s, early 90s) did. This does not mean i think we should be passive about it; we should oppose it’s excesses and try to reduce the number of innocent victims just because that’s the right thing to do. But I don’t think it’ll be the end of classic liberalism that many people seem to think it will be.

    • Posted October 19, 2020 at 12:39 pm | Permalink

      “The solution to that is more critical readers, not censored sources. I’m not sure how to social engineer that, except that some of it may come naturally as our younger generations grow up in this “infinite news sources, most of them crap” environment …”

      That would be nice but the young people will have the same problem us older folk do. There’s simply no way one can research everything. Nor should all citizens have to do their own research on everything that matters. It isn’t practical and most people won’t do it.

      Even when people do their own research, they still have to depend on others. Some of these sources, Fox News comes to mind, are unreliable. How does someone who mostly listens to Fox News supposed to know that they aren’t getting the straight story when all their friends are doing the same and the President tells them that they are listening to the most truthful news source? I certainly don’t trust smart, supposedly computer-savvy, young people to figure it out.

      I don’t see any way out of this mess that doesn’t involve penalties for delivering false information. These penalties don’t have to involve jail time or fines. Perhaps they’ll be forced to have their content annotated. The downside is that we would have to trust an authority. This is unavoidable as their is no source of absolute truth. It really isn’t any different from the court system. At some point, society needs to make decisions about what is true and what isn’t.

      • eric
        Posted October 19, 2020 at 1:22 pm | Permalink

        That would be nice but the young people will have the same problem us older folk do. There’s simply no way one can research everything.

        I wasn’t claiming they’ll do more research. I think rather that they’re going to be less trusting of internet sources, given that they’ll grow up with faked videos etc. and russian bots as a standard form of infotainment. Very much like phishing attacks, it’s us folk who didn’t grow up with it who are most likely to assume some anonymous content is legit.

        • Posted October 19, 2020 at 1:37 pm | Permalink

          In my experience, young people are more comfortable with computers than their parents but not better at judging the truth.

  22. Randall Schenck
    Posted October 19, 2020 at 12:27 pm | Permalink

    One of the oddest things I have seen about my reading of American history are these originalists within the republican party, these lawyers who think they can interpret the constitution by figuring out the original meaning. Not only are they wrong most of the time, as they were with the 2nd amendment but they also forget how stupid it even is to try such a thing. Instead look at today and figure out what is needed now, not what they may have tried to say 230 years ago. Do they really want to have old James Madison telling us how to regulate the weapons available today? Only an idiot would think this is so. Well, we have lots of idiots today.

    • Posted October 19, 2020 at 12:43 pm | Permalink

      I agree. Originalism is a trick that allows them to justify whatever position they’d like, especially ones involving doing nothing.

    • Adam M.
      Posted October 20, 2020 at 3:16 pm | Permalink

      Is that a job for unelected judges, though? I’d think that if our law or Constitution need updating, it’s the job of Congress to make the relevant changes, not the job of the Supreme Court to conjure up new and creative reinterpretations.

  23. Ken Kukec
    Posted October 19, 2020 at 12:28 pm | Permalink

    … it would be hard to alter the legal interpretation of the First Amendment given today’s conservative Supreme Court …

    Sure, given today’s conservative Supreme Court, it would be hard to alter the legal interpretation of the First Amendment in the way the woke want. But I can imagine today’s right-wing Supreme Court constricting the First Amendment’s interpretation in other ways, such as regards obscenity or blasphemy or libel laws (including possibly even seditious libel) or symbolic speech such as flag-burning or compelled speech such as loyalty oaths or the pledge of allegiance.

    Let us not fall into the trap of imagining that the American rightwing is now, or has ever been, a bastion of unrestricted free speech.

    • eric
      Posted October 19, 2020 at 1:27 pm | Permalink

      Yes, it’s a crazy head-scratcher. The far left is calling for more expansive governmental power to regulate our lives just as their political opponents are controlling all three branches of government.

      It constantly surprises me, but it seems to me there are a fair number of liberal/leftists who seem to think something along the lines of: “Of course everyone will agree with me about what to censor, how could they not? I’m right, aren’t I?”

      • Patrick
        Posted October 19, 2020 at 2:00 pm | Permalink

        “The best lack all conviction, while the worst
        Are full of passionate intensity.”

    • revelator60
      Posted October 19, 2020 at 1:59 pm | Permalink

      Furthermore, it’s only the incompetence and disorganization within the Trump administration that has prevented it from infringing upon free speech to persecute its enemies. If a much smarter right-wing demagogue eventually wins the presidency, and has influence with the Supreme Court, I shudder to think what will happen.

  24. Dean Reimer
    Posted October 19, 2020 at 12:29 pm | Permalink

    I firmly believe that social media is the confounding factor here.

    There used to be a cost to speech and spreading ideas. You’d have to write letters to the editor, or print and hand out leaflets, or write a book, or publish a newspaper, or take time to stand on a soapbox in a public square. In such a milieu, ideas spread slowly, and bad ones can rarely get enough traction to become widespread. You’d have to be really invested in your idea, and be of firm belief that others ought to be invested, too, to spend that time and money.

    TV and radio made dissemination easier, but networks were costly and gatekeepers controlled access. Contrary ideas would be aired, but completely bonkers ideas would generally not make the cut.

    The internet has made speech low cost. For the price of an internet connection you can comment on news sites, blogs, you can create a blog. Now any fringe idea can be expressed with almost no effort. The cost of speech is zero, but before social media the reach was still low. A handful of people might see your words.

    Social media has changed the game. Not only does speech have no cost, it is in the networks’ interest to have the most controversial ideas spread. In a sense, they “pay” you for your bad ideas. It has completely distorted the “marketplace of ideas” by subsidizing the worst of them.

    The answer is not to restrict allowable speech. The answer is to bring back a cost to ideas. I think the only way to do that is to either ban algorithmic means of surfacing posts on social media (you only see posts from people/orgs you’ve specifically followed) or force social media companies to expose those algorithms to public scrutiny.

    Either of those will ultimately destroy the profitability of social media companies, so my prediction is that social media as we know it today has less than a decade left to exist.

    • Posted October 19, 2020 at 12:52 pm | Permalink

      Yes, but it’s not just social media. Talk radio and outlets like Fox News and OANN are at least as bad. Social media makes distribution of ideas easier but that’s generally a good thing. It’s the breakdown of the trust network that is at the center of the problem. There are virtually no penalties for distributing misinformation.

      Social media companies are often portrayed as bad guys these days. I think this is mostly unfair. They have a built-in conflict of interest as they are in business to make money. If they clamped down heavily on lies, the liars would simply go elsewhere. This is how business works. We should not rely on companies to be arbiters of truth. They must be truthful about their own products and actions, of course, but not other people’s speech. I’m sure the CEOs of these companies hate the position they’re in and would love for someone to take it off their hands.

      • Dean Reimer
        Posted October 19, 2020 at 1:22 pm | Permalink

        I agree talk radio, OANN, Fox is bad, but you have to “subscribe” (that is, tune in specifically) to be exposed to it. On social media, you can be looking for things related to your hobby (knitting, say) and Facebook will surface some anti-vax or Qanon nonsense into your feed because someone you follow liked it, or follows someone who liked it (who knows how these algorithms surface this crap?).

        To your last point, I agree. I’m sure Jack Dorsey spends a good portion of every day trying to figure out how to put the lid back on the Pandora’s box he opened with Twitter. We can all hope that Zuckerberg does the same. Ultimately I see no solutions that do not destroy shareholder value. There is no misinformation prevention system that can scale for billions of users. It’s an intractable problem.

        • Posted October 19, 2020 at 1:34 pm | Permalink

          I am less worried about myself but more for other people being led astray. The current QAnon phenomenon is a good example. I would never believe their conspiracy theories, though I suppose I could theoretically be taken in by one if I didn’t know it was QAnon and didn’t verify the source. I remember a year ago, reposting some item on Facebook and then being told that it was false. Everyone can be taken in at some point.

          While I am not directly impacted by QAnon, I’m certainly indirectly impacted by it. It is not simply a matter of ignoring bad information. We even have politicians that support QAnon. If idiot voters believe them and they get elected, we all suffer. Their freedom to believe whatever they want is hurting society. The stories QAnon is telling are not honestly held opinions but weaponized misinformation. I would like to believe that most voters taken in by QAnon would change their minds if they knew the stories were made-up lies.

          • davelenny
            Posted October 19, 2020 at 2:48 pm | Permalink

            I am less worried about myself than other people being led astray.

            And thus have noble censors with their superior minds righteously protected us little people from harm.

            • Posted October 19, 2020 at 4:34 pm | Permalink

              Again, I’m not talking about stopping people from expressing opinions. You can pretend that I’m saying that all you want but it doesn’t make it true.

              • eric
                Posted October 19, 2020 at 5:52 pm | Permalink

                Okay so if you’re not talking about stopping the QAnon people expressing their opinion, what are you suggesting?

                Paul you keep implying you want some additional regulation on speech, then when someone calls you on it, you back away.

                What’s your suggested change from current speech law?

              • Posted October 19, 2020 at 6:01 pm | Permalink

                By “someone calls you on it”, I’m sure you meant “someone makes up stuff you didn’t say and then calls you on it.” We’re done.

  25. pablo
    Posted October 19, 2020 at 12:30 pm | Permalink

    The Trump campaign and its lunatic brigade are pushing this bizarre Russian disinfo about Hunter Biden. FB and Twatter have blocked it, but that was not only unnecessary but counter productive in killing the story. No one except Trump’s true believers are buying it, and they look like chumps when the talk about it.

  26. Jon Gallant
    Posted October 19, 2020 at 12:38 pm | Permalink

    I wonder if there are mechanisms to restrict fraudulent (as opposed to “hate”) speech. Are there legal prohibitions on fraud? Can civil action be brought against the perpetrators of fraud? If there are any such mechanisms, they could be used against everything from the Birther garbage, Q-anon, and holocaust denial to false claims in advertising. Oops, I just realized that the latter danger to advertising explains why such mechanisms, even if they exist in law, will never be brought to bear in the USA.

    • EdwardM
      Posted October 19, 2020 at 1:09 pm | Permalink

      I don’t understand. Surely you know that fraud is illegal in the U.S. – it is one of the notable exceptions to the 1st.

      I think I am not understanding the gist of your post.

  27. Paul
    Posted October 19, 2020 at 12:52 pm | Permalink

    I wonder if part of the problem is that in years gone by people expounding very unpleasant opinions would have been surrounded by more conventional ones. Now with the internet it is much easier for groups spanning continents to form around ideas. Also, perhaps worse, it’s easier to limit your exposure to people who disagree with you than ever.

  28. Roo
    Posted October 19, 2020 at 12:52 pm | Permalink

    I feel like Europe comparisons are picking up speed on the water skis and approaching the shark rapidly, meaning shark-jump moment is imminent. When I hear people say “But in Euuur-ope they…”, I am beginning to feel the way I do when people say “But when this other kid I know was your son’s age, he…”. What some other kid you know was doing at his age is not a guidebook for his life, he is an entirely different person with his own unique profile and trajectory, and goddammit, I don’t care if your neighbor’s kid ate table food with perfect manners and a napkin in his lap at 8 months, sometimes I am going to shovel puree into my kid’s mouth while he is momentarily hypnotized by the obnoxious stylings of Blippi so that we don’t both lose our damn minds. Ahem. Anyways. What Europe does is not what the United States has to do. We are a unique country with our own unique economy, culture, demographics, political system, etc., etc. We have no reason to think that what works in Europe is always going to work here, and who decided Europe was the be-all end-all way of doing things anyways? Why don’t we hear that comparison about literally any other country or continent? Why does no one ever say “Well in Egypt they…” or “In Japan they…” Is Europe the only continent that has produced something worth emulating ever?

    Anyways, I feel the Left will continue to call for an end to ‘hate speech’, but I doubt anything will come of it other than increased self-censoring of their own publications. I really don’t think they are going to get the government to pass something that says Fox News must censor itself to their liking, and if they did the backlash would be so huge it would likely be reversed by a Republican majority after a couple of election cycles (and with the internet, those messages would still get spread around anyways.) What I think the Left should reasonably aim for, and what might actually be helpful, is creating a strong delineation between ‘hate speech’ and ‘misinformation’ instead of lumping them together as if they are the same thing. I think they do have a leg to stand on if they focus entirely on limits on information that is factually wrong, and might make some progress on that front. (That could lead to a ‘slippery slope’ issue, of course, so that is something to watch for. For example, where do you draw the line between valid but competing scientific theories and pseudoscience.)

    As for the dismantling of meritocracy – I think this is absolutely ladder-pulling and gatekeeping for the upper classes, and honestly, it’s gross. It’s an attempt to go back to the days of ‘knowing one’s station’, where those at the top of the heap can judge others and decide who’s in or out based on their arbitrary codes of in-group etiquette. Fortunately I think they will only succeed in doing this to some extent, as our economy and capitalist model (which, also because of the upper classes, ain’t going anywhere,) does rely on having high performers and high achievers in top positions, and getting them into those positions will mean sussing out who they are one way or the other. So I think we will see one set of standards for the opera patron set, to ensure that their little darlings have a place in polite society even if they happen to be born without any particular talent, and another for those who do well but earned this in a more pragmatic way. To which I say – whatever, I guess. If the bourgeoisie wanna cordon off some section of society for their country-club aspirations, let them, I guess, as long as they’re not bothering anyone else (assuming, as I’m predicting, that some replacement for meritocratic standards is in fact found due to the pragmatic necessity of meritocracy for the rest of us.) Country club exclusivity is only cruel if you have any desire to join said club, and as I’ll happily take a pass on that way of being, they’re welcome to it. There can be those ‘certain’ schools that everyone knows you have to be uber-Woke to get into, and others that everyone knows you have to be uber-smart to get into.

  29. chrism
    Posted October 19, 2020 at 1:01 pm | Permalink

    I suspect most commenters here will agree that ‘free speech’ is meaningless when there are caveats and restrictions. Speech should be utterly free. That does not mean anyone has to host it on the internet, nor publish it in print, nor even provide real world space for a speaker to utter it. It means there are no legal consequences for anyone, to say whatever they want, in whatever way, by whatever means, in whatever space they find they can say it.
    Equally obvious to all should be the concept that no one has to tolerate any of it except for a government. I don’t have to publish your nonsense in my newspaper, magazine or website. Find someone who will, and have fun. Nobody other than the government is obliged to stand back and tolerate it (actually, any member of any government is entitled to reply how they want, but just not with criminal charges). There will always be lots of people to reply to incorrect ideas.
    As for “hate speech” and such unlikely concepts, I will say only this. We have laws about ‘incitement’ that apply. I’m not a lawyer, but my understanding is that it isn’t the speech that is illegal – given the intent of the law, but the mindset of the utterer. If you intend to cause imminent harm to an individual or a group with your speech, it isn’t the words that are illegal, it is the intent behind them that constitutes a crime. Mens rea as well as actus reus.

    I have no more interest than anyone else in listening to or tolerating stupid ideas and incorrect nonsense. I see it as my civic duty to argue against them with better ideas, sarcasm, irony, synecdoche or any other technique recommended by Monty Python or other authorities.

    In a self-interested way, I do want the opportunity to evaluate all ideas advanced by anyone, no matter how lunatic. History has shown us over and again that correct ideas may go against the grain for the age when they were first expressed. Shall we all continue to make the same mistakes and provide more fodder for future humourists, or shall we be smarter and get it right?

    • GBJames
      Posted October 19, 2020 at 1:05 pm | Permalink

      “Speech should be utterly free.”

      Should a democratic (small “d”) government be prohibited from blocking propaganda emanating from a foreign adversary?

      • chrism
        Posted October 19, 2020 at 1:13 pm | Permalink

        Yes, if it does a somewhat decent job of informing and educating citizens they will assess such propaganda and make of it what they will.
        The alternative you suggest might let a government – and just for the sake of argument let’s make it Trump’s – block all foreign criticism. Would a US citizen today be better or worse off if he or she would be forbidden to read the articles in The Times, Le Monde, The Globe & Mail etc that pointed out that Trump was not, perhaps, perfect? You get my drift, maybe?

        • GBJames
          Posted October 19, 2020 at 1:26 pm | Permalink

          You fail to distinguish programs of misinformation from security forces at a foreign adversary from news produced by foreign press. This is not helpful.

          • chrism
            Posted October 19, 2020 at 1:34 pm | Permalink

            The question for you is this: “Is it more helpful for my government to let me decide what I shall see or read, and to make up my own mind about it, or shall I let them decide for me whether I may see such things and tell me what I must think?”

            Certainly, there are disinformation efforts from foreign sources. But once again, I must ask if you are completely content to let a government make that choice for you – what if it is the Trump administration, or a Biden administration?

            • GBJames
              Posted October 19, 2020 at 1:40 pm | Permalink

              I’m asking you to answer whether governments are allowed to protect themselves from foreign adversaries. You are not answering that question. You keep acting as if I’ve asked you whether you or I have a right to choose what I want to read. You are not addressing the question I’m asking.

              If you mean to say “No, governments do not have the right to defend themselves from misinformation from foreign adversaries”, then just say so.

              • chrism
                Posted October 19, 2020 at 1:54 pm | Permalink

                Here goes some of that free speech reply that I mentioned. You are a loony. Bugg off.

              • GBJames
                Posted October 19, 2020 at 2:02 pm | Permalink

                Well, we’ve apparently reached the limit of your ability to converse sensibly if not the limit of your ability to avoid direct answers.

            • Posted October 19, 2020 at 1:49 pm | Permalink

              You try to scare people with government controlling our speech but the government does control our behavior in all kinds of ways. Just think about the criminal justice system. Sure it has flaws but it is still a case of the government controlling us. In some kind of utopia we wouldn’t need it but, human nature being what it is, we know that’s never going to work.

              I look at what’s happening now as social media and politics enabling “speech” to be used to commit crime. I’m not talking about differences of opinion here or what political party one prefers, but the dissemination of outright lies. Modern technology has made it possible to inflict huge amounts of damage with such lies. The perpetrators are committing crimes against society. It wasn’t a problem in the old days but it is now.

              • chrism
                Posted October 19, 2020 at 1:54 pm | Permalink

                Here goes some of that free speech reply that I mentioned. You are a loony. Bugg off.

              • chrism
                Posted October 19, 2020 at 2:00 pm | Permalink

                And yes, my reply is simply practice for you at dealing with actual free speech! Good luck.

      • Randall Schenck
        Posted October 19, 2020 at 1:16 pm | Permalink

        Hey, don’t confuse anyone with facts.

        • chrism
          Posted October 19, 2020 at 1:28 pm | Permalink

          Sorry. Always a weakness of mine.

          • Randall Schenck
            Posted October 19, 2020 at 2:12 pm | Permalink

            Sorry if you thought my comments were for you. I was commenting to GBJames. You are the one not answering any of his questions.

    • Posted October 19, 2020 at 1:49 pm | Permalink

      The U.S. courts have carved out exceptions to the First Amendment, including false advertising of products, defamation, speech that constitutes workplace harassment, speech that leads to predictable imminent violence, and so on. Surely you agree that some of these are reasonable.

      • ThyroidPlanet
        Posted October 19, 2020 at 2:56 pm | Permalink

        “… false advertising of products, defamation, speech that constitutes workplace harassment, speech that leads to predictable imminent violence, and so on.“

        This just occurred to me:

        How does the law discriminate those cited examples from being used for, say, comedic effect?

        Bill Maher successfully defended himself and a comedy routine of his from getting sued – or something – by Trump.

        So what is keeping such a defendant from the classic “oh I was only kidding!”

        • KD
          Posted October 19, 2020 at 4:16 pm | Permalink

          Sure:

          https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell

        • Posted October 19, 2020 at 4:39 pm | Permalink

          Mostly it is done by judges and juries. The rule is that if it has a good chance of tricking the public, then it shouldn’t be protected. Companies that sell competing products may use comedy in their ads but if they make false claims about their competition, no matter how funny, they’ll be in trouble.

        • eric
          Posted October 19, 2020 at 6:03 pm | Permalink

          In part the courts assess intent.

          However, Jerry’s note that the US is pretty liberal about letting speech slide by that other countries would likely deem illegal applies not just to hate speech but to things like false advertising too. My favorite example is Papa John’s defending their use of the phrase “Better Ingredients, Better Pizza” when Pizza Hut sued them saying the ingredients weren’t better, they were basically the same. Papa John’s defense? It was “puffery.” So, basically their defense was that they were lying, but should be allowed to lie because a bit of exaggeration in advertising is totally acceptable. Why, the public practically expects it! IIRC they lost the initial case, appealed, and won on appeal.

    • Ken Kukec
      Posted October 19, 2020 at 5:24 pm | Permalink

      Speech should be utterly free. That does not mean anyone has to host it on the internet, nor publish it in print, nor even provide real world space for a speaker to utter it. It means there are no legal consequences for anyone, to say whatever they want, in whatever way, by whatever means, in whatever space they find they can say it.

      “Utterly free,” really? So kiddie porn and snuff films, fraudulent advertising and defamation, incitements to imminent lawless action — all must be tolerated without any potential consequence, much less potential criminal penalties?

      This is why I call myself a free-speech near absolutist (pace the position of some extreme libertarian free-speech absolutists).

  30. ladyatheist
    Posted October 19, 2020 at 1:08 pm | Permalink

    I don’t see how you can make a leap from private organization banning hate speech to elimination of all meritocracy in education.

    My prediction is that the platforms that were designed to promote friendliness and connection will tighten up on divisive disinformation. Sites like 4chan will continue to be cesspools of ugly nonsense, and people will continue to hold rallies and marches promoting unpopular, hateful ideas.

    There’s so much horrible crap out there that if Facebook & Twitter return to being innocuous friend-sites it won’t really matter except that some of the less savvy internet users will be less likely to be brainwashed by trash.

    • eric
      Posted October 19, 2020 at 1:52 pm | Permalink

      I don’t think this is a case of A (hate speech bans) -> B (no SAT scores); it’s more a case that the far left is supporting both using the same justification, i.e. that such things harm some minority group of people, or that the open marketplace of society owes it to individuals not to upset them.

      Though as other people have commented before, the ‘no SAT’ opposition is really hard to understand, since for decades making the College acceptance system more objectively meritocratic and less reliant on things like legacy admissions has been something liberals have supported as benefitting minorities and the poor, not a detriment.

      • ladyatheist
        Posted October 19, 2020 at 2:09 pm | Permalink

        Neither of those has anything to do with fear of giving offense. The conspiracy theories perpetrated on Facebook have damaged people, and generated a complex terroristic plot to kidnap and kill an elected official.

        Taking the ACT & SAT out of college acceptance has nothing to do with giving offense – it’s due to both being poor predictors of college success. Most students are not going to Harvard or the University of Chicago. They’re going to their in-state university or a 2-year program. Most probably won’t even buy textbooks for 100- level courses — their professors share powerpoint slides with them.

        • EdwardM
          Posted October 19, 2020 at 2:28 pm | Permalink

          “Taking the ACT & SAT out of college acceptance has nothing to do with giving offense – it’s due to both being poor predictors of college success.

          This is not true. High school GPA is sometimes a better predictor of college success (it depends on the academic cohort) but standardized tests also predict success both in college and after. Claims about standardized tests are complicated by the fact that academic paths through college are not equal – some are more rigorous than others, which may have an effect on the prediction.

          There are many studies on this topic and, of course, because this issue is about politics not academic success, they are cherry picked as needed. But here’s one study that shows that the arguments about predictability are largely specious (there my be other reasons to reject standardized tests).

          https://files.eric.ed.gov/fulltext/ED562836.pdf

  31. Posted October 19, 2020 at 2:19 pm | Permalink

    I’m reminded of the old saying that “A censor is someone who reads what he thinks you should not.” Put another way: are people who encounter “hate speech” instantly converted into drooling fascisti thereby? The people advocating control of speech they don’t like do not seem to be thus converted by said despised speech; so why do they believe that this speech must be censored?
    My suspicion is that these persons have such contempt for others that they believe that while THEY may read speech they do not like, all others must be prevented from encountering such offensive verbiage. Censorious people are by nature contemptuous of others, which is why they seek that peculiar power.

    • Posted October 19, 2020 at 2:27 pm | Permalink

      The problem is that you can call it all censure, but many here are making no distinction between lies and differences of opinion. Most of us here do not want to see censured opinions with which we simply don’t agree. That’s very different from the deliberate telling of lies. It can be tricky to tell the difference but it’s done all the time in libel cases.

      • Posted October 19, 2020 at 2:36 pm | Permalink

        We have existing laws against libel and slander, I think. I rather doubt that people who wish to see, say, “hate speech” censored are referring to libel and slander. They wish instead to have speech with which they disagree censored; they wish to prevent the expression of opinions that they consider politically blasphemous.

        • Posted October 19, 2020 at 4:28 pm | Permalink

          You aren’t seriously suggesting that libel and slander laws are practical for fighting the avalanche of misinformation that is out there these days, are you? Why don’t you start making practical suggestions?

          • eric
            Posted October 19, 2020 at 6:07 pm | Permalink

            What is your practical approach to fighting this avalanche then, Paul? I hear a lot of criticism of the current system but no offered solutions.

            Who’s going to read all these statements and decide which is lies and which is opinion? The government? The corporation hosting the site? The latter IS the current system, while the former is an expanded government censorship.

            • Posted October 19, 2020 at 7:02 pm | Permalink

              Review my comments on this post. I gave lots of ideas. They aren’t refined and ready to be implemented but I think they are worth looking at.

              “Who’s going to read all these statements and decide which is lies and which is opinion? The government? The corporation hosting the site?”

              The government would administer it but not in the simplistic way suggested by a “Ministry of Truth”. Something parallel to the court system. It could even be the court system at the upper levels though at the lower levels it would need to be way more efficient. An AI system would be the very first level and it would simply reject statements similar to ones already rejected. Something that couldn’t be judged by the AI would have to be judged by a human. This would be something like a professional juror. Someone trained but their judgement could be appealed. The cost of all this could at least partly be borne by the social media companies. I suspect they wouldn’t object as long as alleviates their burden and allows them to operate with less public backlash.

  32. Randall Schenck
    Posted October 19, 2020 at 2:24 pm | Permalink

    Does anyone read comments this far from the original? I doubt it.

    To think freedom of speech is under attack in America today would mean you have no connection to any media or TV tube. The president of this country lies out-loud all the time, everyday for the last 4 or 5 years, non stop. If he says anything near the truth, who would know it? So free speech is alive and disgustingly real in this country.

    • EdwardM
      Posted October 19, 2020 at 2:40 pm | Permalink

      Frankly Randall, because you are sometimes rude to people here, I usually ignore your comments. This one I didn’t because you think no one reads this far down the page. How bizarre.

      • Randall Schenck
        Posted October 19, 2020 at 3:03 pm | Permalink

        Would have read your comment but too far down the page. My excuse for any rude behavior is 4 years of dealing with Trump and his cult. Sorry about that, maybe it soon will change.

        • EdwardM
          Posted October 19, 2020 at 4:01 pm | Permalink

          I surely understand the feeling, brother.

      • Posted October 19, 2020 at 4:29 pm | Permalink

        I may have misunderstood his comment but I took it as thinking to himself that there were so many comments on this post that no one was still reading them. I don’t see why that would be insulting to anyone.

  33. Posted October 19, 2020 at 2:47 pm | Permalink

    “if you think that people can’t be trusted to suss out the truth, or consider all ideas, then somebody has to appoint A DECIDER to work out what speech people can read and what speech they are too credulous to be exposed to.”

    This gets decided politically, hopefully in a way that preserves an open society. There have to be shared epistemic norms about what counts as good evidence – thus what counts as a lie – if we’re to agree about keeping lies and disinformation in check. Since ideas about what counts as good evidence are driven by competing worldviews, religions, and ideologies, this means that policy on suppressing disinformation is a political matter. The German policy on prohibiting Holocaust denial exists because the current regime is reasonably liberal, that is, anti-fascist. Obviously that policy could change if fascists gain power. But arguably it’s harder for them to gain power if fascist speech (e.g., lies about the Holocaust) is prohibited. This is liberal democracy protecting itself by limiting the spread of disinformation. As the NYT article suggests, “…it’s time to ask whether the American way of protecting free speech is actually keeping us free.”

    Not everyone will agree that Holocaust denial and other fascist (e.g. White supremacist) claims are disinformation, which is why it’s important to keep fascists very much in the minority, politically and otherwise. One way to do that is to statutorily enforce anti-fascist, liberal norms about what constitutes good evidence, norms which non-coincidentally happen to align with science – our most reliable guide to reality. Climate change denial on the part of policy makers and elected officials, for example, could be criminalized. It’s encouraging that social media platforms are increasingly flagging and removing posts that, according to our best epistemology, are simply promulgating falsehoods. Media companies are being called biased by the right for undertaking such measures, which is what one would expect since epistemic norms will always be contested.

    • Posted October 19, 2020 at 4:47 pm | Permalink

      Climate change is a good example of how hard it would be to police misinformation on such subjects. People that don’t believe in climate change can produce their experts too. Still, there is a wide range of possibilities. It could be required that every claim about climate change be backed up by references. Obviously a link to a reference, or a page containing a list of references, would do the trick. The link could be high-tech, allowing the reader to click on the ad or send it to an image search process that connects it to the reference. It could also be embedded as metadata in the image file and browsers and other apps could give the user access to it. Of course scammers would fake references but perhaps reference sources need to be qualified somehow. This might take an entire industry but it would be worth it, IMHO.

  34. Doug Knauer
    Posted October 19, 2020 at 2:54 pm | Permalink

    Don’t let our benevolent government ring fence what is allowable free speech, BUT do consider eliminating the ability to post anonymously on social media. It won’t solve all the problems of spewed vitriol, but if you know who I am, I may just think twice about spewing.

    • Posted October 19, 2020 at 4:37 pm | Permalink

      Yes, that’s another thing to try. Policing the internet is not going to be easy but that’s no reason not to try. I imagine it will take years of trying different policies before we find the sweet spot between freedom and restriction. Perhaps we never will but I think we can get much closer than we are right now.

  35. ThyroidPlanet
    Posted October 19, 2020 at 2:59 pm | Permalink

    Isn’t there an assumption that the speech is meant seriously, and the speech being taken seriously? How is such a thing shown?

  36. Jay Baldwin
    Posted October 19, 2020 at 3:09 pm | Permalink

    The idea that we must sacrifice free speech to save democracy is absurdly ironic when expressed in print.

    • GBJames
      Posted October 19, 2020 at 3:11 pm | Permalink

      Ironic, surely. Absurd, not so much.

      We seek to maximize freedom. But we prohibit the freedom to deny others’ freedoms. There’s irony there, too. But no absurdity.

      • Posted October 19, 2020 at 4:49 pm | Permalink

        Yes. It is also quite a bit over the top to talk about sacrificing free speech. Surely not all of it or even most of it.

  37. Curtis
    Posted October 19, 2020 at 4:52 pm | Permalink

    Free speech restriction are put in place by people in power to restrict the rights of the people they do not like. The power of free speech was vital in the civil rights movement when local government banned protests or required absurd bonds be posted before the protests.

    Here is a good podcast that features Ira Glasser who was the head of the ACLU from 1978 to 2001. He is famous for his defense of the Nazis marching in Skokie.
    https://reason.com/podcast/ira-glasser-would-todays-aclu-defend-the-speech-rights-of-nazis/

    • Posted October 19, 2020 at 5:08 pm | Permalink

      “Free speech restrictions are put in place by people in power to restrict the rights of the people they do not like.”

      SOME free speech restrictions are put in place by people in power to restrict the rights of the people they do not like. No one here would suggest doing that.

      • Curtis
        Posted October 19, 2020 at 5:53 pm | Permalink

        By definition they are in power or else they would not be able to enact the restrictions.

  38. KD33
    Posted October 19, 2020 at 5:46 pm | Permalink

    My prediction is the argument over free speech, and its regulation, will only skirt a much larger problem. In the US at least, the belief in obvious falsehoods and conspiracy theories is going through the roof. In many cases there is no nuance at the level of arguing that sunspots cause global warming. It’s that Democrats are for pedophelia. It’s looking at a blue sky and saying it’s green, with a straight face, and 10,000 people behind you saying the same thing. It’s our leaders giving those 10,000 people a wink, to let them know it’s fine to be batshit crazy (Trump: “I’m very much against pedophelia.”) Fact checking has no meaning for them. It is chilling to talk to people like this. Whether or not they are allowed to say these things is putting quite a fine point on a huge problem.

    • Posted October 19, 2020 at 6:10 pm | Permalink

      I’m sure you’re right about some of them. Not much we can do about people who really want to believe stuff like that. Still, they shouldn’t have the luxury of thinking that they are offering facts. When presented with facts, some of those people my stop believing in these conspiracy theories. Right now they are being given cover by their neighbors, the GOP, and even Trump. We can’t stop them believing but we can make it more embarrassing and harder to support. If we could make QAnon’s theories about as accepted and acceptable as flat-earth theories, it would be good enough. As far as I know, no flat earthers have threatened anyone with assault weapons and no presidential candidates are running on a flat-earth platform.

  39. Posted October 19, 2020 at 6:06 pm | Permalink

    I have serious concerns about any government attempt to determine the truthfulness of speech, apart from the existing remedies for libel and defamation. There are too many gray areas, and what we think is true now is sometimes provisional. I would hate to open the door to a “Ministry of Truth”. I don’t have an alternative. We simply must challenge lies with truth in the free speech market place.

  40. Ken Kukec
    Posted October 19, 2020 at 6:17 pm | Permalink

    Social media, I think, presents a particularized problem in terms of the rampant spread of disinformation (and, to a lesser extent, to the rampant spread of general nastiness).

    Part of the problem, I think, stems from the same source as the problem of “dark money” in politics: anonymity, and the resulting lack of personal responsibility.

    Now, I understand there may be entirely legitimate reasons for people wishing to post anonymously on social media. Hell, there may even be noble reasons for doing so — the person posting may want to have their ideas adjudged entirely on the merits of what they have to say, rather than on any claim of personal authority. (After all, the three authors of the Federalist Papers all wrote under the pen name “Publius.”)

    One path out of the social-media thicket in which we find ourselves (though I’m not suggesting it’s a panacea) may be to give full First Amendment-style protections to postings publicly attributable to the verified identity of a particular person or persons, while allotting a lesser standard to postings not so attributable, so that the usual social checks and balances of spreading arrant bullshit apply.

    “Free speech” doesn’t mean speech that’s free from all social consequence. Therein lies the difference between the “free” in “free speech” and the “free” in “free beer.”

    • darrelle
      Posted October 20, 2020 at 6:53 am | Permalink

      I am generally ambivalent about the concept of a Great Filter, but given the past few years it’s looking more plausible. Social media looks to be a likely candidate.

  41. Jon Gallant
    Posted October 19, 2020 at 6:49 pm | Permalink

    The value of the European system in regard to “free speech” is about to be demonstrated in France. Samuel Paty, a teacher who dared to show his class some of the Charlie Hebdo cartoons, was beheaded last week at his school by an enthusiast of the soi disant Religion of Peace. Apparently, this religious exercise was preceded by on-line posts denouncing M. Paty for blasphemy,
    not to mention “Islamophobia”, which could be viewed as calls for action against him.
    French authorities are investigating these posts, as well as Islamist organizations from which such “speech” is regularly emitted.

    • pballabeni@bluewin.ch
      Posted October 20, 2020 at 2:18 am | Permalink

      I just heard on radio that the father of one of Paty’s muslim students, together with an imam, issued a fatwa against the teacher.

  42. Torbjörn Larsson
    Posted October 19, 2020 at 6:55 pm | Permalink

    And if you think that people can’t be trusted to suss out the truth, or consider all ideas, then somebody has to appoint A DECIDER to work out what speech people can read and what speech they are too credulous to be exposed to.

    Says who!? Philosophers?

    And pointedly here, as for once the global situation is used as context, that is not how the cited democratic nations handle free vs hate speech. It is regulated by law where intentions are framing them.

    Again, free speech and hate speech limitations are set out in the UHDR – it is not an invention of postmodernism. You can’t just abolish one or the other under UHDR, but you can balance them properly. Though if any of them contribute to a democratic society we don’t really know (well, maybe when free speech is too circumscribed) because we dearly lack statistics on the differences and their causality.

    • Torbjörn Larsson
      Posted October 19, 2020 at 7:02 pm | Permalink

      I forgot since I expected a poll as I was reading down while composing my response, though it was implicit in my comment, that yes – I think US should drop some of its aged constitution and start to adopt UHDR precepts more closely. I’m sure it was shiny at one time and that it helped unify a new nation as never before, but it has creaky and cranky and it has its problems (free speech absolutism; guns and violence not having the state/police/army as its sole proprietor; et cetera).

      • Torbjörn Larsson
        Posted October 19, 2020 at 7:03 pm | Permalink

        “has creaky” – has become creaky.

  43. Posted October 19, 2020 at 7:22 pm | Permalink

    Jon Gallant said:
    “Samuel Paty, a teacher who dared to show his class some of the Charlie Hebdo cartoons, was beheaded last week at his school by an enthusiast of the soi disant Religion of Peace.”
    There are many folk out there who would call this statement of opinion “Islamophobia” or some such, and would have Gallant and All His Works censored as an egregious example of the need to curb free speech. Furthermore, many of them would seek to have Gallant fired from his job, stripped of his Twitter access, and prohibited from approaching within 200 meters of any school or childcare facility. All this, of course, in absolute certitude of their own virtuous correctness.
    Whipley Snidelash says that Hillary Clinton eats only live baby pandas with her daily truffles. One suspects that this is not true, but should Whipley’s ability to express his opinion be interdicted by the virtuous simply because that opinion reflects a certain lack of cerebral dynamism? And if Whipley’s statement is believed by Winky Fobgabble, is Winky’s speech also to be interdicted? Who decides?
    Personally, I believe Whipley’s statement to be false (Hillary Clinton seems far too avaricious to spend vast sums on such exotic food), but it wouldn’t occur to me to let some Orwellian authority declare his words anathema and gag him. I prefer to let weirdos be weirdos, and sort it all out myself.

    • tjeales
      Posted October 19, 2020 at 7:37 pm | Permalink

      this kind of ignores the fact that all of the news you receive is filtered by Orwellian authorities called “editors”

      • Posted October 20, 2020 at 6:52 am | Permalink

        Oooo yeah. Good point.

      • GBJames
        Posted October 20, 2020 at 8:25 am | Permalink

        They still have editors?

  44. tjeales
    Posted October 19, 2020 at 7:35 pm | Permalink

    This is a hugely complicated issue and I think the attempts by the left or right to mess with the problem of social media will lead to very bad unintended consequences.

    Facebook’s problem is its size and reach. See this story for how things got out of hand https://www.wnycstudios.org/podcasts/radiolab/articles/post-no-evil

    With s230 protections they are immune from lawsuits stemming from what is posted on their site so one might say, “OK why should they be censoring anything?”

    Because if they didn’t it would, within a matter of days, completely devolve into something like 4chan /b/ or worse. See this article for just how bad light-touch moderation can get https://www.skeptic.org.uk/2020/10/monster-island-free-speech-experiment/?fbclid=IwAR0aIlUBahZ-c7LmWkRZt-IFQUuTqZ8fr5QxkVsudbRRTWaEc1D1WUZfAGY

    For Facebook or Twitter to survive as viable businesses, where advertisers want to be, they must moderate. This is a constant battle and the more they do it the more they can be accused of censorship, or worse “editorial decision making”.

    If it can be shown that they are making editorial decisions regarding the content of their sites then it’s hard to see how they can continue to be protected by s230. This would result in a business destroying avalanche of lawsuits.

    Damned if they do damned if they don’t

  45. dd
    Posted October 19, 2020 at 8:17 pm | Permalink

    Dr Coyne,

    Toward the end you make predictions about grades.

    Wish you would devote an entire thread to this because this seems to be, at least to me, a part of a much larger trend in society: the relentless dumbing-down of area after area.

    As example, NY Times music critic Anthony Tommasini’s recommendations on orchestra member audition…

    https://www.nytimes.com/2020/07/16/arts/music/blind-auditions-orchestras-race.html

    • darrelle
      Posted October 20, 2020 at 6:59 am | Permalink

      Earlier this year Jerry wrote a post here about that article that you might find interesting. You should be able to find it using the “Search” feature near the top left of the WEIT page.

  46. Posted October 19, 2020 at 8:24 pm | Permalink

    Well, the USA only formally a democracy, but not one in practice. Politicians are legally owned by corporations, people’s votes are gerrymandered. Probably most voters are locked into states that never swing, and both parties are mostly identical on most issues most of the time. To hide the fact, American politics is about wedge issues that are fought with passion and a number of other minor points. The one key difference is that one party, in addition, is kind of supervillain capitalist, war for oil, spreading cancer when it generates profits and so on. But on most issues, you can vote whatever you want with no difference. US democracy is about as real as a wrestling match. It’s an engrossing theatre play. It looks like Democrats are happy with four more years of Trump rather than risking a mildly social democratic politician becoming President. Also, Americans can die for a war somewhere, but can’t legally get drunk at the same age. So much freedom.

    Germany does have a kind of First Amendment, which is declared in the Grundgesetz (Basic Law) in Article 5. It specifically says that people can not only express themselves freely (“without hindrance”) but also inform themselves freely. Then, just like in the USA, there are some limitations (libel, child pornography etc) and their reasoning is similar in most respects. Law tradition places higher protection on reputation and privacy than the USA. Another difference is that people actually can sue without going bankrupt, the fees and sentences are supposed to be proportional to the damage and the process is not fundamentally unjust because of outrageous lawyer fees and the need to settle, or going bust or to jail.

    In Germany, the former Nazi regime is not merely a matter of opinion but is “verfassungsfeindlich” (hostile to the constitution, even though there is no actual constitution). That is, endorsement of Nazis is construed as treasonous. The upshot is that this comparison to Germany is a red herring.

    The timing of the article on Free Speech is interesting, because right now, US tech companies do censor and they are also deeply intertwined with the government. Yet more interesting, according to Matt Taibbi, someone who was associated with the Democratic party announced that Facebook would limit the spread of a story that is damaging to the democratic party.

  47. Posted October 19, 2020 at 9:33 pm | Permalink

    Slippery slope, indeed! One man’s hate speech is another’s righteous call to action. As far as the remedy of “fact-checking” goes, I was the national editor of a major national news and opinion magazine, and I know that the “fact checking” is largely a subjective exercise, largely subject to the biases of the fact checkers.

  48. lesliefish
    Posted October 20, 2020 at 7:00 am | Permalink

    I have a working definition for you: “Hate Speech is any speech or form of speech which any listener/recipient hates.” As such, it’s far too subjective to be enshrined in law. Abolish “hate speech” as a legal concept, and let people say whatever they like. Fact-checking, labeling, slander/libel lawsuits and counter-arguments are all we need.

    Yes, this includes “blasphemy” laws too. If you think your god has been insulted, then by all means tell your god about it and let him deal with the miscreant. Any god worth worshipping doesn’t need human help to deal with human insults. As for worshippers feeling insulted, let them sue and counter-argue like everybody else.

    –Leslie < Fish


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