It was inevitable: the New Yorker, a liberal organ, has, like the liberal American Civil Liberties Union (ACLU), started waffling on free speech because it may be offensive and damaging to some groups. In other words, because the First Amendment conflicts with “social justice”, says the magazine, we must temper our advocacy of free speech. This is further evidence that the New Yorker has become an Authoritarian Leftist rag, and I’m not renewing my subscription when it lapses.
Click on the screenshot to see Andrew Marantz’s shameful and cowardly retreat from America’s freedom of speech.
The answer to the question posed in the subtitle is “Yes.”
In short, Marantz’s arguments are the same as those made by the ACLU in their secret memo described at the link above. Certain oppressed groups, he maintains, are damaged by free speech, either by creating psychological damage in their members after hearing criticisms of their group or its beliefs, or by directly increasing the degree of oppression of the group. In addition, the presence of speakers who promulgate this kind of damage (Marantz mentions Milo Yiannopoulos, Ann Coulter, David Horowitz, Heather MacDonald, Richard Spencer, and Charles Murray—a mixed bag if ever there was one) are “divisive”. (So was free speech advocating integration in the pre-Sixties South!) Further, when speaking on campus, speakers like thse cost colleges a lot of money for security.
Marantz argues that there are already legal restrictions on speech when it causes harm, like bans on sexual harassment in the workplace. Why, then, can’t we ban speech outside the workplace that also can cause harm?
Marantz makes his arguments largely through quotes from others, but it’s very clear that he agrees with them. Here are a few of those quotes. First, the new trend of saying we should temper the traditional interpretation of the First Amendment in light of social justice:
“No one is disputing how the courts have ruled on this,” john a. powell [JAC: yes, he’s pompously omitted the capital letters], a Berkeley law professor with joint appointments in the departments of African-American Studies and Ethnic Studies, told me. “What I’m saying is that courts are often wrong.” Powell is tall, with a relaxed sartorial style, and his manner of speaking is soft and serenely confident. Before he became an academic, he was the national legal director of the A.C.L.U. “I represented the Ku Klux Klan when I was in that job,” he said. “My family was not pleased with me, but I said, ‘Look, they have First Amendment rights, too.’ So it’s not that I don’t understand or care deeply about free speech. But what would it look like if we cared just as deeply about equality? What if we weighed the two as conflicting values, instead of this false formalism where the right to speech is recognized but the harm caused by that speech is not?”
and
Yiannopoulos and many of his defenders like to call themselves free-speech absolutists, but this is hyperbole. No one actually believes that all forms of expression are protected by the First Amendment. False advertising, child pornography, blackmail—all are speech, all are illegal. You’re not allowed to shout “Fire!” in a crowded theatre, make a “true threat,” or incite imminent violence. These are all exceptions to the First Amendment that the Supreme Court has made—made up, really—over time. The boundaries can and do shift. In 1940, a New Hampshire man was jailed for calling a city marshal “a damned Fascist.” The Supreme Court upheld the conviction, ruling that the words were not protected by the First Amendment, because they were “fighting words,” which “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
. . . In the nineteen-seventies, when women entered the workplace in large numbers, some male bosses made salacious comments, or hung pornographic images on the walls. “These days, we’d say, ‘That’s a hostile workplace, that’s sexual harassment,’ ” powell said. “But those weren’t recognized legal concepts yet. So the courts’ response was ‘Sorry, nothing we can do. Pornographic posters are speech. If women don’t like it, they can put up their own posters.’ ” He drew an analogy to today’s trolls and white supremacists. “The knee-jerk response is ‘Nothing we can do, it’s speech.’ ‘Well, hold on, what about the harm they’re causing?’ ‘What harm? It’s just words.’ That might sound intuitive to us now. But, if you know the history, you can imagine how our intuitions might look foolish, even immoral, a generation later.”
About the supposed harm caused by free speech:
I asked john powell what he thought about the rhetorical tactic of conflating speech with bodily harm. “Consider the classic liberal justification for free speech,” he said. “ ‘Your right to throw punches ends at the tip of my nose.’ This is taken to mean that speech can never cause any kind of injury. But we have learned a lot about the brain that John Stuart Mill didn’t know. So these students are asking, ‘Given what we now know about stereotype threat and trauma and P.T.S.D., where is the tip of our nose, exactly?’ ”
. . . As Mogulof [Dan Mouglof, UC Berkeley’s public affairs administrator] spoke to the reporters, an undergraduate sociology student walked by, holding an iced coffee and a Rice Krispies Treats wrapper. She shouted a question at Mogulof: “Students have a right to go to their classes and feel safe in their classrooms, and you’re ready to compromise that for, like, the First Amendment that you’re trying to uplift?”
“Your concerns are right on the money,” Mogulof said.
. . . Later that fall, Judith Butler, the cultural theorist and Berkeley professor, spoke at a forum sponsored by the Berkeley Academic Senate. “If free speech does take precedence over every other constitutional principle and every other community principle, then perhaps we should no longer claim to be weighing or balancing competing principles or values,” Butler said. “We should perhaps frankly admit that we have agreed in advance to have our community sundered, racial and sexual minorities demeaned, the dignity of trans people denied, that we are, in effect, willing to be wrecked by this principle of free speech.”
Butler’s partner, the political philosopher and Berkeley professor Wendy Brown, was teaching a course called Introduction to Political Theory. “It was an amazing experience to be discussing Mill while all this stuff was blowing up around us,” she said. “It’s one thing for a student to feel that, through the free exchange of ideas, ‘the truth will out.’ It’s another thing to defend that position while Milo is staging his political theatre outside your window.”
Finally, the monetary argument:
Carol Christ [the Chancellor of UC Berkeley] told me that the events of the past academic year hadn’t changed her faith in the First Amendment, but that they had made her wonder how an eighteenth-century text should be interpreted in the twenty-first century. “Speech is fundamentally different in the digital context,” she said. “I don’t think the law, or the country, has even started to catch up with that yet.” The University of California had done everything within its legal power to let Yiannopoulos speak without allowing him to hijack Berkeley’s campus. It was a qualified success that came at a steep price, in marred campus morale and in dollars—nearly three million, all told. “These aren’t easy problems,” Brown told me. “But I don’t think it’s beyond us to say, on the one hand, that everyone has a right to express their views, and, on the other hand, that a political provocateur may not use a university campus as his personal playground, especially if it bankrupts the university. At some point, when some enormous amount of money has been spent, it has to be possible to say, O.K. Enough.”
My rebuttals
1.) The monetary argument. To ban speakers because defending them costs money is ridiculous. Those responsible for the security (and those who cause the damage that makes security necessary) are the protestors, nearly always of conservative speakers (i.e. “hate speakers”). This argument amounts to saying that the speech we need to ban consists in part of that speech which people deem offensive and respond with violence. Perhaps the tuition of all students should be raised to cover the costs of these protests, which are often levied, unfairly, on groups who invite unpopular speakers.
2.) The list of “offensive” people. I would argue that even Milo, mountebank and provocateur that he is, has worthwhile things to say: perhaps things with which we disagree, but things that should be aired and debated. So do Charles Murray and especially Heather MacDonald, whose book on policing has much to chew on. How can we counterargue without knowing what our opponents have to say? Which brings us to point #3:
3.) The benefits of free speech. While I admit that there may be marginal harms of some speech protected by the First Amendment, there are benefits that, I argue, outweigh these harms, harms that I see as overrated anyway. Many of the benefits are outlined in John Stuart Mill’s On Liberty and, before the ACLU went down the tubes on the First Amendment, an an eloquent defense of free speech (including “hate speech”) by its legal director published in the New York Review of Books. The benefits are the conviction that if competing views are aired, it’s the best way to arrive at social progress and a harmonious society. This, in turns, rests on the proposition that humans are rational and can often be convinced by logic. Steve Pinker makes a convincing case in his Better Angels book that free speech and debate are an important factor in accounting for the moral progress in the world over the last few centuries.
Further, free speech, including hate speech, allows us to sharpen our arguments. If you disagree with Heather MacDonald on the reasons why blacks seem to be targeted by police, you need to know her arguments and the data she adduces. I’ve often said that it’s useful to hear Holocaust denialists because their arguments are often convincing to those who don’t know the facts, and so their opponents may be reduced to gibbering, outraged primates when they can’t answer them. And, of course, one can always change one’s mind after hearing the arguments of one’s opponents. Just think of the moral difference between now and the 1950s with respect to the status of women, gays, and blacks.
Even further, how can we know who believes what if we deem some classes of speech legally unacceptable? Does silencing Steve Bannon, Charles Murray, or Milo Yiannopoulos make their views go away? No, the views just go underground and give these people the right to claim free-speech “victimhood”. I would argue the opposite: airing their views types these people as regressive bigots and allows us to decide whether we want to further listen to them.
4.) The supposed harms of free speech. There are two: psychological damage supposedly sustained by those who hear “hate speech,” and actual harm to groups themselves. Both are overrated. I believe that many of those who claim psychological harm or “victimhood” because of free speech often do so not because they’re really harmed, but because claiming victimhood status makes one special—makes you stand out from everyone else. It’s hard for me to believe, for instance, that pervasive PTSD from speech that can be avoided by simply not listening to it is widespread in society. Some hijabis have manufactured claims of hijab-ripping, often, I think, to increase their status. As for damage to oppressed groups that comes from criticizing them, that is a slippery slope argument (see point 5), and I can’t accept the argument that even “hate speech” causes substantial damage to the groups criticized when the speech (as the courts has deemed) doesn’t promote imminent violence. Would banning the American Nazi Party have reduced anti-Semitism in the U.S.? I don’t think so—the Party declined because of its own stupid pronouncements made it look ridiculous. Does racist speech increase racism? In my view, by exposing bigots and the social harms of bigotry, it reduces racism. Yes, there may some marginal harms of free speech (after all, someone may be convinced by listening to racist speech) but the benefits of allowing hate speech, especially in view of point 5, far outweigh the harms.
5.) What speech should be banned. and who shall be The Decider? This is not a trivial argument. You might say that speech that calls for the deportation of blacks, or other similar racist nonsense, should be banned, but Muslims, for example, feel just as offended when you criticize their religion. After all, the Muslim attacks that occurred after the publication of the Jylllands-Posten and Charlie Hebdo cartoons were products of a very deep offense that drove its adherents to murder. And what about abortion? There are those who feel that at least some abortions should be banned because of considerations of either religion or the supposed sentience of fetuses. Should we ban their speech because liberal sentiments consider abortion a “right”? Should we ban speech that calls for the destruction of Israel? Why not, if we ban speech that calls for the deportation of immigrants? The problem is that there are people who consider “hate speech” any speech they don’t like, and to give anyone the power to ban that speech is putting a serious weapon into the hands of those who could destroy democracy. The Nazis didn’t take power because of free speech in Germany; they took power because they banned speech, outlawing all political parties besides their own and, ultimately, killing those who spoke up against their policies.
6.) If we ban harmful workplace speech, why not harmful public speech? The prime example here is sexually harassing statements in the workplace, which are clearly harmful to the recipients. They are banned by law as impermissible violations of speech, and I agree. But these are not the same as speech that, say, calls for the destruction of Jews, the building of a wall along the Mexican border, or the banning of gay marriage. In the former, you cannot get away from that speech without risking losing your job. In contrast, “hate speech” can be avoided simply by walking away if you don’t like it—with no penalty. Walking away also limits the harm that can accrue to your own well being by hearing such speech.
Both liberal and conservative U.S. courts have long settled on an interpretation of the First Amendment that has worked well and has allowed the airing of ideas that some consider offensive. Would our country be marginally worse if, say, we prohibited Holcaust denialism, as some countries do? I don’t think so. In the end, one person’s “hate speech” is another person’s “speech worth discussing,” and even speech that is unreservedly odious has a place and a function in a democracy. Creating a principle that some speech is worth banning because it’s offensive risks having those you can’t abide become the deciders, and then come for your speech.
The New Yorker has jumped the shark on this one, but it’s been inching toward Regressive Leftism for a long time. I’m done with its virtue signaling. This last article was the ultimate form of virtue signaling, and doesn’t even make a serious attempt to show the arguments for free speech, even though it alludes to them.
h/t: BJ, Nilou
