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Wednesday, May 5, 2010

What Free Speech Is and Is Not

I have noticed how much confusion there is about what "free speech" means. The confusion goes both ways. First, people say that certain kinds of speech should not be allowed because it is not free speech. Second, people say that certain speech should be allowed because it is free speech. I will give two simple examples of what I am talking about. A person who says that speech against the government is no longer free speech because it is sedition is an example of a person who argues against this speech. A person who says that an employee can preach Christianity at his job without the fear of being fired by the employer because his speech is protected religious speech is an example of a person who says that a certain kind of speech should be allowed. I will explain what free speech means, and show that speaking against the government is free speech while preaching at your job is no longer free speech. Free speech a fundamental issue, I really hope that people can finally understand what it is and is not.

Free speech is actually a very simple concept. All what free speech means is that speech is free from the government. Meaning that the government does not control speech whatsoever. Government keeps its hands (magical hands which ruin just about everything they touch) off speech. It is just like separation of church and state. The state stays out from the management of religion. Free speech is the same idea, government stays out of controlling speech. Speech is completely free in its entirety. What I will do now is apply this very simple concept to various issues regarding speech. One thing to keep in mind, just as separation of church and state does not imply that religion (church) can do whatever it fancies, likewise free speech (separation between speech and state) does not imply that the speaker can get away from whatever speech he says.

A simple consequence of what free speech means is that the government cannot ban any book. No matter how offensive it is. Because if the government can ban a book then it would follow that they are controlling what is okay to say and what is not okay to say. It can even be "Mien Kampf" or a book on Holocaust denial, the government, under free speech, can do absolutely nothing to ban those books. (I happen to think the Bible is a more reprehensible book than Mien Kampf, and so if the Mien Kampf needs to be banned then it logically follows that that Bible must be banned but that will take me off topic). Nor can be government ban any religious book, even if it comes from the most evil religion today (*cough* *cough* Islam *cough*).

However, and this is extremely important to understand, Amazon, or any other bookstore, does not have to sell these reprehensible books. The reason being is very simple. Amazon, and other book stores, are not the government. They can decide themselves what they want to sell and what not. In general, book stores sell books which will return them the highest profit, which is determined by what people are willing to read. Since reprehensible books, like the "Mien Kampf", are not that willed by the people, the demand is less, so the supply of these reprehensible books shall be limited, some markets might even not have them on sale because they are offensive.

The same is true with private businesses. A business, whatever it happens to be, can mandate various restrictions on what can be said. For example, suppose an employer does not want to hire overly religious people who preach their religion at his work. Then he does not have to. The business is not the government. The business decides itself what to limit and what not to limit. An employer can also tell his employees not to use swear words when they speak, because the employer is not the government and he can mandate his own rules to his own business. I have been on many forums on the internet. Most of these forums have speech codes. Restrictions against swearing or racist speech generally apply to every forum or server I have used. They are not required by law to have these restrictions rather they make up their own restrictions because they want to have a friendly environment. All of this is fine. No person can claim that a forum or a debate session or a server or a business is violating free speech. Violation of free speech, when it happens, only comes from the government, never from the private sector. Therefore, a preacher cannot break into your house and start preaching Christianity, because it is your house - you make the rules, he can however, stand in the street and preach Christianity.

Most people object and say "there has to be limitations to free speech". I understand why they say that but they object to total uncontrolled free speech because they misunderstand what free speech means. For instance, consider that I wrote a book about your personal information (credit card numbers, your health records, your bank statements, and so forth) and put it on sale. Let us ignore the fact that this book will never sell because it would be extremely boring to read and just pretend that it becomes a New York Times bestseller. Most people would say, "this example illustrates exactly why we cannot have total uncontrolled speech". This example does not bother my support for complete free speech in the slightest. For the following reason. Recall how we explained free speech, "government is free from speech". Therefore, a person can never get in trouble by the law for the kind of things he said because speech is not controlled, however he can get in trouble for other things that do not relate to free speech. What other kinds? In this case I, who wrote a book about your personal information, has violated your privacy rights. Not to mention I have committed theft against you. I have taken information that you did not intent for me to expose and I exposed it. I will certainly get into trouble for this, and rightly so. But the law cannot trail me for what I said! It can only trail me for my violation of your privacy rights.

The above paragraph is crucial for understanding what free speech is not. I will use another example to illustrate my point. The classic (idiotic) objection to free speech is a guy who yells "fire" in a theater. People who oppose free speech in its full meaning reply by saying that this example shows that people cannot say whatever they please. But there are two problems with this objection. The first one is that this case is not different from a forum or a server or a business which prohibits the people from using swear words or racist expressions. You cannot come on some one's property (in this case a theater) and desire how you wish to speak! But even without this point we can refute this classic non-argument against free speech. Freedom comes with responsibility, if one is not responsible for his actions then he cannot be treated freely. I cannot call up the fire department and tell them there is a fire. This has nothing to do with free speech. When I call the fire department I am implicitly entering into a contract to tell them that I or someone else needs help, they come and realize it was a fake call, thus I have diverted their attention from something that could have been a real emergency. My deceit is violating my contract with them. If I get sued by the fire department they will not sue me because of what I said, but because I have diverted their attention. In this particular case my diversion was done through speech, speech was my agent, but speech is not being controlled here, it is my deceit which is unlawful, indeed, it did not have to be speech, I could have diverted their attention in a different manner and still would have been sued by them. Thus, speech is not being controlled by the government, what is being controlled for is that I cannot divert the attention of the fire department. In the same manner I cannot call up a repairman to come to my house and then decide to fire him the moment he comes, he will probably sue me, he will sue me for my false alarm on him without notifying him. There is no law that says "you cannot tell a repairman to come and be deceitful". This is not a matter of free speech, but really a matter of diverting the attention of people. The fact that speech is the agent in these cases of the diversions does not in any way imply that the laws are against free speech.

Let us invent another illustration of something which is not free speech. In a quiet neighborhood (like Lakewood) a protester starts preaching against Judaism on a megaphone in the streets. He has no right to do that. The police can come over and tell him to stop. The protester cannot respond back to the police and say, "this is a matter of free speech and I will not leave". Well, he can respond that way, but that would be a terrible response. Because the police are not telling him to stop protesting for what he says against Judaism, but the police are telling him to stop because he is making a lot of noise. It does not matter what the protester was speaking about. What matters in this case is that the protester was disturbing other people. Disruption is a violation of the property of another person. When a noisy protester is in a quiet neighborhood his noise penetrates through your house walls and disturbs your peace time. A protester has a right to stand in a street with a sign, but he cannot be disruptive about it. This case falls into the very same category as a person who screams "fire" in a theater. Also, if the police arrest the protester for he would refuse to leave, the protester would be trailed not for what he said, but for public disruption. His speech will be completely irrelevant to the entire case of the judge. Thus, his speech throughout the entire court session was free from law, in other words, free speech was still protected. However, if the protester was also trailed by the court for what he said, then the court would be violating free speech, for in that instance speech would be controlled by law.

Now consider the case of a man who writes mail to another person telling that he is going to murder him. This is again not a matter of free speech. The man who threatens murder will be trailed for threatening the life of another man. But not trailed for what he said to another man. Free speech is not the issue over here. This entire case is a case of a man who threatens the life of another man. People do not have the right to threaten the lives of other people. It is true that the threat was done through the use of speech, but as explained above, speech is only the agent of the threat. There are no laws for wishing a person dead, or telling a person that you wish he was dead, or saying how you would be happy to kill him if you had a way of doing it. There is no law for talking about death of another person. Such speech is free speech, for it is only the things that are being said about death and murder. However, when speech makes it clear that one wants to kill another, then it is not a matter of speech, it is a matter of threat. The one who threatens will only be charged for threat in a court room, what he said will not be used against him for the words that were used are a matter of free speech. If the court was able to charge him for threat and for the things that he said to another then that would violate free speech for in such a case the law is deciding what is okay and not okay to be said.

There is a difference between what is in principle and what is really being done. What I have said above explains what free speech is and is not. But what is actually being done in the United States violates some of the things I have said above. I will concentrate on three issues that come up from time to time regarding speech which the United States has a wrong stance on. Those are: hate speech, libel laws, and blackmail.

Hate speech. I have already brought this up in my "Feminism Sucks" series. And I gave a video which revealed how silly the whole "I am for free speech but not hate speech" position is: here. Free speech most certainly refers to hateful speech. What is the point of defending speech that never bothers anyone? The goal of having free speech is that unpopular ideas, and even wrong ideas, enter into a marketplace of ideas, the ideas battle out against each other so that the best one wins. If one is saying the common opinion which never bothers anyone, who cares? It does not add anything new to what we know. Indeed if you go into history all the big ideas, including wrong ideas, have always came from people who had positions that a lot of people found uncomfortable. In general when there is a deviation in thought or speech people get uncomfortable. Having laws on hate speech defeats the whole point of having free speech. And it does not matter how pointless something else. Even saying "nigger". That is rather pointless to say, but if we can pass laws against "nigger", then we can pass laws against "fag", then we can pass laws against something else. And before we know it we have a list of speech codes. It is a slow path to censorship. Every idea must be expressed no matter how unpopular it is and even if it is not an idea, even if it is just an insult. However, everything I have said is regarding the government. A business or a college can control the speech of their employees or students if they feel like it is a good idea to have a certain level of respect. Now I happen to think it is wrong for a college to have speech codes in place for the sake of protecting feelings because the point of college is to express ideas, but that is irrelevant here, I am only talking about what the college can do if they want to take action against hate speech.

Libel. This one is really silly. The argument is that a company has an intangible asset, its good name. When one libels against a company then they destroy their asset. Thus, one can be sued for libel. No, sorry, a company has no good name asset. The good name of a company exists in the minds of the customers. It is not a piece of property. When one libels all he is attempting to do is change the ideas of the customers in their minds. That is all what free speech is about. If the libeler can change the mindset of the customers, then he did not damage any piece of property. He simply changed the opinion of the people. Too bad for the company if they lose money, sorry, but that is free speech. Free speech is not always a moral thing but we still do not control it. I would certainly be unhappy if a libeler made me lose a lot of money, but that is his right to speech. We cannot control it just because some find it unpleasant, just like we do not control speech simply because a few people do not say "thank you". Not being grateful is certainly an impolite behavior but we cannot control for this. We have to grow a penis (in a metaphorical sense) and deal with it.

Blackmail. Blackmail is a very simple concept that is best explained with an illustration. Suppose that I catch you masturbating to anime porn. I find that so funny that you love that kind of stuff that I plan to tell your friends of what you did. Now we will consider two options. The first option is that I run off and tell all your friends, that would be, as called in Judaism, "lashon hara". I agree that it is certainly wrong for me to do that, but we hear it everyday with the Hollywood low lives. The TV is filled with "lashon hara", most people engage in this kind of hobby on a day to day basis. I do not defend this low practice, all I am saying is that there is no law against this and there should be no law. The second option is that I walk over to you and tell you that I will suppress my "lashon hara" if you pay me money. Basic common sense will give light to the fact that the second option is not as bad as the first. Because you at least have a choice with the second option. You can decide if the price of me keeping quiet is enough to avoid the dissatisfaction that you get if all your friends find out about your anime obsession. However, for some messed up reason the second option, which is "blackmail", is illegal. I do not understand. It fails to have any common sense whatsoever. Yes, blackmail is part of free speech and we need to even protect the blackmailers.

I conclude with my favorite quotation regarding free speech by Voltaire that I keep very dear: "I might not agree with what you say but I will give up my life to defend your right to say it".

We must be prepared to defend speech in all its forms. Especially what we hate the most. Defend the speech of neo-Nazis and KKK members even if they are willing to kill you. Because free speech is a more important virtue. If you do not defend the speech of those whom you hate, then you do not support free speech.

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