Hate Speech

Offensive Speech

Can't a guy say what he thinks anymore? Yes, but the free market may punish you.

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Luke Gattuso/Flickr

Last week, when the NBA banned racist team owner Donald Sterling, some said: "What about free speech? Can't a guy say what he thinks anymore?" The answer: Yes, you can. But the free market may punish you. In America today, the market punishes racists aggressively.

This punishment is not "censorship." Censorship is something only governments can do. Writers complain that editors censor what they write. But that's not censorship; that's editing. 

It's fine if the NBA—or any private group—wants to censor speech on its own property. People who attend games or work for the NBA agreed to abide by its rules. Likewise, Fox is free to fire me if they don't like what I say. That's the market in action, reflecting preferences of owners and customers.

But it's important that government not have the power to silence us. We have lots of companies, colleges, and sports leagues. If one orders us to "shut up," we can go somewhere else. But there is only one government, and it can take our money and our freedom. All a business can do is refuse to do business with me, causing me to work with someone else. Government can forbid me to do business with anyone at all.

Of course, government never admits it's doing harm. Around the world, when government gets into the censorship business, it claims to be protecting the public. But by punishing those who criticize politicians, it's protecting itself. 

That's why it's great the Founders gave America the First Amendment, a ban on government "abridging the freedom of speech." But I wonder if today's young lawyers would approve the First Amendment if it were up for ratification now. 

There is a new commandment at colleges today: "Thou shalt not hurt others with words." Students are told not to offend. At Wake Forest University, for instance, students cannot post any flyers or messages deemed "racist, sexist, profane, or derogatory." 

The goal is noble: create a kinder environment. But who gets to decide how much "hurt" is permissible? Recently, a fourth-grade teacher in North Carolina was ordered to attend sensitivity training after teaching students the word "niggardly." When the power to censor lies with the people most easily offended, censorship never stops. 

A few years ago, I asked law students at Seton Hall University if there should be restrictions to the First Amendment. Many were eager to ban "hate speech." 

"No value comes out of hate speech," said a future lawyer. "We need to regulate flag burning … and blasphemy," said another. One student wanted to ban political speech by corporations, and another was comfortable imprisoning people who make hunting videos. 

Only when I pulled out a copy of the Bill of Rights and slowly wrote in their "exceptions" did one student finally say, "We went too far!" 

So does free speech mean that we must endure hateful speech in the public square? No.

I'll fight it by publicly denouncing it, speaking against it, boycotting the speaker. That's what the NBA's employees and customers demanded, and quickly got. 

What convinced me that almost all speech should be legal was the book Kindly Inquisitors: The New Attacks on Free Thought, by Jonathan Rauch. He explains how knowledge increases through arguments. 

Rauch is gay. In an updated afterward to his book, he points out how quickly the world has changed for people like him. Twenty years ago, "gay Americans were forbidden to work for government, to obtain security clearances, serve in the military … arrested for making love, even in their own homes … beaten and killed on the streets, entrapped and arrested by police for sport." 

This changed in just two decades, he says, because there was open debate. Gay people "had no real political power, only the force of our arguments. But in a society where free exchange is the rule, that was enough."

Fight bigotry with more speech

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  1. “Of course, government never admits its doing harm.”

    Government do harm, that’s unpossible.

    1. Government is here to -help- you!

    2. Prosecutors in New York are doing an excellent job suppressing annoying emails about an academic debate, along with “confessions” sent in the “name” of someone who did not actually write them. I know some people call this satire, but if it’s too subtle and deadpan to be immediately recognized as a nice kind of parody, then it definitely should be a crime. See the case documentation at:

      http://raphaelgolbtrial.wordpress.com/

      and watch the New York appellate court hearing on this issue at:

      http://www.nycourts.gov/ctapps…..ebcast.asx

  2. Recently, a fourth-grade teacher in North Carolina was ordered to attend sensitivity training after teaching students the word “niggardly.”

    How ironic, a teacher punished for teaching. Only in government education camp, folks!

    1. Too little, too late. Obviously the proper solution is for the North Carolina legislature to make using the word “niggardly” illegal.

  3. There is a new commandment at colleges today: “Thou shalt not hurt others with words.”

    The obsession with protecting people’s feelings on college campuses is, at best, misplaced, and at worst, part of deliberate attempt to quash dissenting ideologies. But I also don’t see how it is that different from the NBA censoring Sterling for something they didn’t like. I realize that many colleges and universities are state funded. But as far as I know, college policies are not backed up by the force of law. I guess I’m just not really seeing the point of including this in the article.

    1. The old, old commandment at colleges throughout history has been “though shalt not offend against the orthodoxy”

      1. The point of tenure is to allow people to go against orthodoxy without fear of losing their jobs.

  4. “The goal is noble: create a kinder environment.”

    I don’t see that as noble.
    These aren’t toddlers needing protection from any and all possible harms; these are young adults who need to be exposed to all sorts of ideas, fine and foul, to learn and grow.

    1. It isn’t noble and it certainly isn’t free to ignore people’s property and contract rights because some group’s feelings were hurt by words. I am very disenchanted by the reel of articles from this joint approving such results and citing “free market.”

      A free market also recognizes contract and property rights. But some people are so eager to make themselves out to not look like racists, that they overlook the nuances in the competing rights of the opposing groups.

      1. “A free market also recognizes contract and property rights. But some people are so eager to make themselves out to not look like racists, that they overlook the nuances in the competing rights of the opposing groups.”

        Need a cite here.

        1. You really need a cite that the American free market recognizes property and contractual rights? Ever heard of the Contract Clause?

          As for the other, merely look at Gillespie’s recent articles in which he said “Sterling should go fuck himself.”

          1. **and freedom of contract, etc., etc. If you have no government protecting property rights, what do you have? Mob rule. That’s just great for investment.

          2. “As for the other, merely look at Gillespie’s recent articles in which he said “Sterling should go fuck himself.””

            Yep, that’s what I thought.
            No, I needed a cite where someone’s rights were harmed and you mention one where nothing of the sort happened.
            So, do you have a cite, or just a gripe?

          3. Duke, until you can give us a reason to believe that you possess a better understanding of the NBA’s agreement with owners than Adam Silver and his lawyers, then you have no ground to stand on.

            1. Neither of you are too bright when it comes to the law, I see that now from your comments here and below.

              The word is that Sterling won’t sell voluntarily, and he may sue to enjoin any forced sell. He has a contract with the NBA and it may or may not allow the forced sell. But he does have a contract with them and those contractual rights have not been litigated yet and therefore determined yet. You both see that, don’t you? Also, if the taped call was illegal, can it be used against him to force a sale? These are but some of the issues at stake.

              A child-like understanding of the world will help neither of you in these arguments.

              1. “But he does have a contract with them and those contractual rights have not been litigated yet and therefore determined yet.”

                So you’re hoping he can get a judge to allow him to weasel out of the contract?
                How……………..
                slimy
                of you.
                Yep, that’s nothing to do with ‘mob rule’ is it?

                1. Wha? So now a judge is the same as a “mob?”

                  See my comment below for a basic exercise in critical thinking.

                  1. Duke|5.7.14 @ 2:17PM|#
                    “Wha? So now a judge is the same as a “mob?””

                    Yes, when you use the power of the state, you employ the ultimate mob.
                    You’re not real bright, are you?

              2. How do you get off lecturing about how his rights are being violated, and then turn around and say “Oh, no, I just mean they haven’t been litigated yet and we don’t know!” If you don’t know if his rights have actually been violated, how can you say his rights are being ignored? Regardless, Silver can fine and ban him, and I would be very surprised if he made the move to attempt to force a sale without high confidence that such a move would pass legal muster.

                1. “Regardless, Silver can fine and ban him, and I would be very surprised if he made the move to attempt to force a sale without high confidence that such a move would pass legal muster.”

                  It’s a sure bet that there is not a professional sports organization where the owners’ contracts do not include a “for the good of the sport” clause, and that clause will make it clear the director of the organization has the authority to make the determination.
                  Sterling’s lawyers may try the ‘secret taping’ ruse, but that’s bullshit; this is not a criminal action against Sterling.

  5. BTW, the sign at the top is hilarious!
    Nothing says “free speech” like having to make reservations for the place where they might (or might not) let you speak.

  6. So if “hateful” is whatever a mob decides it is and said mob can ruin your life or livelihood because you said something they don’t like do you really have “free speech”?

    1. I glanced at The Stoz’s article and gathered pretty much the same thing. Blessing the forced divestiture of someone’s assets because he said something in private, as long as the “free market” deems it offensive, is an oversimplification of the issue at best. We have a constitution precisely because our founders did not want mob rule.

    2. I’m pretty sure that free speech has to do with what a government is allowed to restrict.
      In any event, free speech is never speech without consequences.

    3. You are an idiot if you think this has anything to do with a mob. The NBA made the decision because Sterling is bad for the league. Players boycotting the NBA playoffs isn’t exactly a good look, is it?

      1. Well, it might be a “mob”, if you consider your customers such.
        But none of that matters; the NBA is a private organization, and if you want to play in their league, you play by their rules.
        Don’t like it? Go set up your own league.

        1. Exactly. This was a business decision by a private organization. This isn’t censorship or oppression.

          1. Oh really?

            If your house was forced into sale by a private bank because you said you were gay and liked gay people in private, would you feel the same way?

            If your house was forced into sale by a private bank because you said something racist in private, would you feel the same way?

            If your house was forced into sale by a private bank because you said something sexist in private, would you feel the same way?

            If your house was forced into sale by a private bank because you said you did not believe in God in private, would you feel the same way?

            Remember, these are all private actors here.

            1. Is there an agreement with the bank that would give them justification to do such a thing? The Clippers are not some random business. They are a part of the National Basketball Association. An owner does not have the same level of control over a franchise in the NBA that a normal business owner has over their business, or the average person has over their house.

            2. Even though it’s “your” house, if you have a mortgage, it isn’t. This isn’t any different from the Sterling situation; you’re just trying to inject emotion into the decision.

              From what I’ve read about Sterling, he seems like a racist* scumbag. Being a regular scumbag in the NBA appears to be ok, based on the many dozens of scumbags in their organization, but they’ve drawn the line at racist* scumbag. As such, they can throw Sterling out of their party if that is their prerogative. Subject to their contractual obligations with Sterling, of course.

              *Being a racist only counts if you’re white and it’s directed at other minorities.

              1. Dixon (clever name BTW), if you think the NBA’s agreement with its owners is identical to a bank mortgage, then you should probably read up on law or the NBA’s contract. This has nothing to do with emotion. This has to do with analyzing legal contracts and realizing that they are not all the same, and what one party can do in a certain situation under a a certain contract is not necessarily valid for a different party in a different situation under a different contract. Maybe Sterling does have a case, but I’d be very surprised if Silver made the move he did with a high risk of it backfiring, and the NBA’s situation is not directly analogous to every other contract or form of ownership in existence.

                1. I didn’t intend it to sound like I meant a mortgage is the identical situation to the NBA franchise contract.

                  However, to think Silver would do this without a legal justification is a pretty huge leap of faith, IMO. Once Adam Silver realized the impact of a potential player strike and droves of unhappy fans that may decide they don’t want to continue supporting the organization, I don’t doubt for one second that he tasked an entire team of lawyers to figure out how to get out from under Sterling.

                  Do I think the whole situation is shitty? Yes. Sterling is free to be a piece of shit if that is his desire. Do I think the NBA will ultimately prevail? Also yes. If they don’t, they have made a mistake insofar as their ability to control their brand. I can guarantee if there wasn’t language about this sort of thing (forcing the sale of a franchise) in the contract, there will be in the future.

            3. I would probably be pretty pissed if a bank did that, but being a racist, or a homophobe, or a misogynist, or an atheist, doesn’t really impact one’s ability to pay interest on a mortgage, which is what the bank is concerned with.

              Sterling is the very public owner of a very public franchise which is part of a very public league, which sells entertainment and whose business model is heavily dependent on public perception.

              Your example is closer to the whole Eich/Mozilla dustup. Mozilla was within its rights to force Eich out. That doesn’t make it a good decision, but they were within their rights. Presumably, your moralizing bank would be within their rights to kick you out of the house, though again, that doesn’t make it a good decision. Similarly, the NBA is probably within its rights to punish Sterling. But I’d say in this case, they are making a good decision based on the attitudes of their customers.

            4. Duke|5.7.14 @ 2:14PM|#
              “Oh really?
              If your house was forced into sale by a private bank because you said you were gay and liked gay people in private, would you feel the same way?”

              Uh, Duke, can we presume you’re a sleazy racist who’d pissed that one of your buddies got busted and now you’re trying every lie and distortion to excuse the behavior?
              Or can we presume you’re an ignorant ass who is incapable of thought?

            5. Bank’s can’t arbitrarily “force houses into sale”, so that issue simply doesn’t arise. If they tried, they’d face major liability.

              What they currently cannot do but probably should be able to do is refuse to do business with me because of my race, sexual orientation, or religion. Why should they be able to? Because such stupidity takes care of itself very quickly when I do business with one of their competitors.

              You need to stop thinking of yourself as a helpless victim at the mercy of banks and corporations, and rather as someone who has the power to decide who to do business with.

  7. Mario Savio: What a colossal failure his little leftist life was.

    (Who was Mario Savio? Look it up.)

  8. But in the workplace your employer can set any parameters on your speech he wants, correct? He can destroy your livelihood for things you say, even on the flimsiest of whims, right?

    1. Can you even pretend to engage in sincere debate? Just once?

      1. How can you know if it’s sincere if we’re only at the opening question?

        1. Tony|5.7.14 @ 8:02PM|#
          “How can you know if it’s sincere if we’re only at the opening question?”

          Well, you lie so often that it takes no longer than that.
          You’re like ALW: ‘Why do people hate me on site?’ It saves them time, slime-boy.

    2. Tony|5.7.14 @ 3:57PM|#
      …”He can destroy your livelihood for things you say, even on the flimsiest of whims, right?”

      Yes, Tony, your employer has total control over your life!
      Now be a good little twit and go away.

    3. Yes, my employer can set any parameters on my speech.

      He can also fire me. I don’t see why that would “destroy my livelihood”.

      What exactly are you trying to get at?

  9. “The goal is noble: create a kinder environment.”

    Bullshit. Shouldn’t people familiar with Rand recognize this as granting moral sanction? This is why Libertarians lose to Progressives – no matter how horrible the policy, no matter the misery it causes, Libertarians will still saying that “Progressives have good intentions, but…”

    No. Their intention is to be slaves to power, and to make sure that we’re all slaves too. This is the *worst* of all intentions.

  10. One problem with the way the free market currently deals with heterodox speech is that the orthodoxy zeitgeist is reflected not only by the offended parties and the mass media, who whose wide promulgation of the story contributes to the depth of the invective surrounding it, but by government itself, up to and including the White House. I believe the handwriting is on the wall; we are entering an age of dis-enlightenment and that within twenty years we will see laws prohibiting a wide range of speech and we will see active punishments for their violation.

  11. Prosecutors in New York are doing an excellent job suppressing annoying emails about an academic debate, along with “confessions” sent in the “name” of someone who did not actually write them. I know some people call this satire, but if it’s too subtle and deadpan to be immediately recognized as a nice kind of parody, then it definitely should be a crime. See the case documentation at:

    http://raphaelgolbtrial.wordpress.com/

    and watch the New York appellate court hearing on this issue at:

    http://www.nycourts.gov/ctapps…..ebcast.asx

  12. We have lots of companies, colleges, and sports leagues. If one orders us to “shut up,” we can go somewhere else. But there is only one government

    It wouldn’t matter if there was one company, one college, one sports league and lots of governments. Rights are rights.

  13. Can’t a guy say what he thinks anymore?

    Actually, if some had their way, a guy wouldn’t even be able to think what he likes anymore.

  14. It’s fine to say the market now punishes racism, but how much is that coming from organic principals of the actors involved and how much is it not wanting to get a shakedown from civil rights kingpins and phalanx of lawyers? A market which acts in fear of an overly litigious society isn’t exactly a “free” market.

  15. It certainly hasn’t been the “free market” punishing Sterling. It seems to be a propaganda piece more than anything else I can think of.

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