Section 2 also, too!
This post exists because there’s yet another FREEZE PEACH! discussion ongoing over at Pharyngula and I realize I’m tired of making the same points over and over again. So I’m going to write up a few thoughts and then leave myself the option of either linking back to this or quoting it in the future so I don’t have to keep saying the same damn things over and over.
First, if you’re talking about the First Amendment in relation to free speech (as USAmericans are wont to do) or s2 in a Canadian context or other, similar provisions in other countries, you’re talking about what the government is permitted to do to restrict or punish expression. If you try to bring up 1A during a debate about the actions of private corporations or private persons, then your argument is fruitless, uninformed, and generally worthless. There may be an issue worth discussing about the behavior of those corporations and persons, but any argument incorporating the 1A in relation to those private actions is a bogflooding mess and more than sufficient reason to think you don’t know what you’re talking about.
If I point out that the 1A doesn’t apply, it’s because the 1A doesn’t apply. That does not mean I believe there are no issues worth discussing. It means the issue you actually raised (not the one you secretly meant to raise that relies on some underlying principles that aren’t the 1A but you believe are somehow reflected in the 1A, but nonetheless failed to articulate because you were too excited about the 1A to actually say what you really intend) is not worth discussing and I’m trying to end that line of discussion so that, if any discussion about real issues is appropriate, we can move on to the topics that are worth discussing.
Next, no one is a free speech absolutist. That’s a childish way to describe yourself. You can try to take what you perceive to be the high ground by describing yourself in such a way, but everyone believes in some limit or other to the right to free expression. Likewise, no one is a believer in the principle that there exist topics that can never be discussed. Even things like “how to murder someone” can and should be discussed by forensics experts who are trying to anticipate forensic countermeasures so as to continue to develop reliable ways of developing the evidence needed to determine when a crime has been committed and who is responsible for that crime.
Next, as a result, no one is arguing that limitations on expression should always be allowed and no one is arguing that limitations on expression should never be allowed. As a result, if you’re not making an argument as to why a particular limitation or action is unacceptable, you’re not making any useful argument at all. General free speech principles do not automatically make a particular example of platform-denial unreasonable, unjust, illegal, or intolerable in a free society. If you want to argue that we shouldn’t tolerate some specific recent example of deplatforming some specific person, then you have to argue more than just, “We have to care about free expression or soon we’ll have no free speech.” Get to the specifics and the context, because they matter.
Next, if you’re going to argue something about silencing instead of something about the First Amendment, you have to actually define silencing. No one thinks you mean that the person in question is literally unable to create 10 to 100,000 Hz pressure waves in a surrounding fluid medium. This isn’t science fiction this is social policy. We get it. But if you don’t mean soundlessness, then what, precisely, do you mean? Because weirdly people use the term “silencing” to mean the social consequences that are incurred by certain persons who still have a shit-tonne more opportunities for expression of their ideas and opinions than the vast majority of persons. The reason people have drifted away from screaming “First Amendment!” (to the extent that they have) and toward screaming “Silencing!” is because the 1A, as discussed, has an actual meaning that is almost always inapplicable in these discussions. And that’s great. That means that the person who is now screaming Silencing! has learned something. However there is value to having a definition: with the 1A we actually know when it applies and when it doesn’t. There is a long history of debate on this point and firm agreement on whose opinions are actually authoritative (i.e. those of SCOTUS). We have none of that with the term silencing as it is used in these discussions. And we have plenty of examples of using the term when it seems obviously inapplicable – as in a celebrity who loses an opportunity to engage with one specific audience only to be interviewed on national television for a much larger audience about why they feel they lost the opportunity to engage with that first audience. Moreover, there is no agreed upon final arbiter of the term, so a person using the term silencing can’t say that obviously they weren’t using it in the same way as the many people who have used it ridiculously. It’s not obvious. If you’re going to use the term, you cannot escape the need to define what you mean. This is equally true if you qualify the term. “I’m not talking about complete silencing, I’m talking about effective silencing,” is entirely unhelpful since we still don’t know what constitutes “effective silencing”.
Next, for my definition of “reasonable” all reasonable people agree that some examples of genuine silencing and/or effective silencing are good things, are not threats to important rights of free expression, and should not be criticized. The canonical example here begins with a toddler screaming to a parent about wanting a cookie and all the reasons they deserve a cookie while the parent is on the phone. Now imagine the parent asks an older sibling to take the child into another room and close the door (actual silencing if the child can no longer be heard) or just far enough away to be ignored so that the parent need not pay attention to the child’s pleas and can instead engage in the conversation they have deemed a priority. I think we can all agree that the first would satisfy at least some definitions of “silencing” and even the second would satisfy some definitions of “effectively silencing” since the point of the child’s expression was to make arguments why they should be given a cookie and they are being denied a meaningful opportunity to make those arguments.
No one I consider reasonable would argue that the parent is morally or ethically required to actually listen to the specific points the toddler raises in their argument for being provided cookies.
Therefore, once again, the specifics matter. No one can credibly make the general point that people are always required to listen to an argument in favor of a proposition, or that it is always unethical to fail to do so. So the specifics matter. Which arguments are worth listening to and how do we determine whether someone’s expression is worth our attention? List the criteria which one should use to make those determinations & then show how the example being discussed meets – or doesn’t – those criteria.
Next, no one I consider reasonable believes that all limits on free expression are acceptable merely because the limits are imposed by private parties, and I think it’s guaranteed that anyone involved in these discussions believes that some private-party limits are problematic and/or unacceptable.
Therefore, when someone refutes the relevance of the 1A, it is a red herring to respond in a way that assumes the person is saying that because protections against government interference do not apply, any privately imposed limits on speech must therefore be acceptable. Yes, some private limits on speech are acceptable. No, that doesn’t mean all of them are. What it means, again, is that if you’re arguing that a certain limit on speech is unacceptable you’re going to have to spell out why, with a proposed rubric for making that determination and specific evidence that the case in question passes the test you propose.
Next, even government limits are sometimes reasonable. The free expression of the idea, “I will pay you money to kill Crip Dyke dead” is curtailed by governments all over the world. Indeed, if you think government restrictions on such speech are unreasonable, then I can be certain that you are unreasonable.
Other government restrictions on speech are less clear cut, but still supported by the vast majority of persons. Defamation, for instance. There are laws against it, and if someone brings a claim of defamation before a government court and supports that claim with sufficient evidence, the government will use its power to punish the defaming party. Commercial speech too can be regulated. The government can force private parties to convey a message that they would rather not (e.g. nutrition information on a pack of Oreos) or refrain from conveying a message that they rather would (e.g. “THIS CURES CANCER!”)
As a result, even when government action is involved, it is necessary for a serious argument to specify why that particular action is or is not an unjustifiable restriction on free expression.
Most of this is to say that over and over again people arguing that a particular example of someone incurring consequences for their speech represents an unjustified and/or unacceptable limit on free expression rely on a vague notion that if free expression is good, then limits on free expression are bad.
The problem is that this is not true. The parent teaches the toddler a lesson about patience and another about how the time, place, and manner of an attempt to persuade can determine the success of that attempt while also managing to gain room for free expression between the parent and a third party. Absolutely nothing about this limit on free expression is bad. Likewise there is no societal cost for limitations on solicitation to murder. No society is better off with more solicitations to murder, the very idea is ridiculous. And so again, nothing about this limit on free expression is bad.
Therefore, if you don’t like some particular limit on free expression, then to achieve anything worthwhile you must argue against that limit. Arguing that in general limits are bad, or more often limits are bad is a waste of time. What is it about this specific case, this specific limit, that makes it part of the bad majority and not the good minority of limitations on speech?
And finally, it is very common that people do, technically, provide an argument why a limitation on speech is bad, but that the entire argument against the instant case is a slippery slope argument.
The problem here is that in order to be useful, this argument needs to take the form of something more substantial than the “Limits bad!” assumption I disproved and dismissed above. A useful slippery slope argument in this context would have to take a form similar to
- In order to justify the current limitation on expression being discussed, one must to concede that X constitutes reasonable grounds for prohibiting or limiting otherwise acceptable speech. If one has the option of not conceding X constitutes those reasonable grounds (if, for instance, there are other available grounds) then the argument either fails here or the argument must rule out all those possible grounds one by one. If even one legitimate ground remains, the slippery slope argument fails.
- The person advancing the slippery slope argument must then show that some expression which we agree should not be limited has the quality X that was previously used to justify the limit on expression being discussed.
- Assuming that 1 and 2 are true, this means that the particular justification invoked would ultimately harmfully or unjustifiably restrict desirable speech.
Without this full form, as brief as it is, there is no slippery slope worth discussing. We already know that limitations on speech have existed throughout history. We already know that we don’t live in the nightmare of curtailed expression depicted in the slippery slope argument (otherwise the argument would not be slippery slope, but rather apocalypse now). Therefore some argument must be made why this justification for restricting free expression is different from all the other justifications we accept on a daily basis.
Unfortunately, almost no one who makes the slippery slope argument in relation to free expression takes time to make it in its fuller and useful form. In nearly all cases, it amounts to no more than a stylized representation of the childish and untrue notion that all limitations on speech are bad.
In sum, I don’t think I’ve ever seen one competent argument that a particular example of shunning or deplatforming constituted an unacceptable limitation on free expression. To be clear, I’m not saying that I’ve seen no arguments that convinced me. I’m saying that I’ve seen no competent arguments at all. Someday that may change. I hope to heck it changes. But to this point I’ve simply not seen one.
So if you have an argument that Jordan Peterson or Milo Yiannopoulos or some other brave member of the IDW has had their speech limited in a manner that should not be tolerated in a free society, by all means, make it. Define your terms, show your reasoning, evidence, and the tests you use for determining a limit un/acceptable, and make your case. Just remember not to rely on absolutes that don’t exist: some limits on speech are good. Why isn’t this one?