Free Speech

What Gives Censors Any Right to Censor?

There is no right to revoke free speech rights.

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The racist goons in Charlottesville have inspired a fresh debate over whether the government should allow speech by racists, goons, and assorted other troglodytes.

For some, the answer is clearly no. "The ACLU Needs to Rethink Free Speech," argues a fellow with the UCLA School of Law. "Censor White Supremacy," advocates a writer in The Week. "Speech in America is Fast, Cheap, and Out of Control," bemoans campaign-finance scourge Richard Hasen in the Los Angeles Times.

Here in Virginia, Gov. Terry McAuliffe (D) has temporarily banned demonstrations at the Lee monument in Richmond. City leaders in Portsmouth are debating whether to adopt a similar ban, at least with regard to hate groups. On the other side of the country, House Minority Leader Nancy Pelosi (D-Calif.) wants a permit revoked for an alt-right rally. Transit authorities in New York and Washington have been trying to limit controversial (and even noncontroversial) advertising. And so on.

Those demanding censorship sometimes try to put a fig leaf on the demand. "This executive order has nothing to do with infringing upon First Amendment rights," McAuliffe claimed, even though that was its whole point. In The Week, Matthew Walther contends that defending "abstract rights" of even the worst people is not "to defend speech but to demean it, to diminish it to the level of undifferentiated random noise." Sure, that's probably it.

Defenders of free speech have offered some familiar but still trenchant rebuttals:

  • Who decides what is acceptable? Do liberals really want to give a Republican Congress and, for Pete's sake, Donald Trump the authority to decide which speech to punish?
  • Where do you draw the line? In Europe, courts have fined and imprisoned people not just for classic hate speech, but also for "glorifying terrorism" with a puppet show, saying mean things on Facebook, and posting "cruel humor" on Twitter, among a great deal else.
  • What about blowback? As Washington Post ombudsman Margaret Sullivan suggested in a recent column: "Imagine a civil rights march that is shut down because officials fear a violent response from racists." She quotes Justin Silverman, of the New England First Amendment Coalition, who points out that until relatively recently "rallies for equality and civil rights were considered offensive and unpopular."

These are all good arguments, but they suffer from a common flaw: They are conditional. They allow for the possibility that censorship might be acceptable if we could ensure that the right people imposed it, that they would draw the lines in the right place, and that good ideas would never be censored.

In the real world, those conditions cannot be met all the time, which makes the arguments powerful. But there are two other points that need drawing out as well.

The first is that the right to speech is not merely instrumental. In The Week, Walther argues that "freedom of speech is not a first-order good; it exists only to facilitate the flourishing of… society." Ergo, speech that doesn't facilitate somebody's conception of flourishing can be censored. (You hear the same arguments in the campaign-finance context: Speech by powerful interests can be curtailed in the name of a "level playing field.")

This is just drastically wrong. It treats people as mere means to somebody else's end, as Kant would say—not as ends in themselves. The blood-soaked history of the 20th century should have discredited that collectivist vision of society for all time, but apparently it still holds appeal in some quarters.

The other point that needs drawing out has less to do with the people who are speaking than the people who stand in judgment of the speakers. The current debate has focused on whether certain vile ideas have any value, and whether the people who espouse them deserve to be able to voice them. This looks at the question from the wrong end.

The more important question is: What right does anybody have to shut them up? That is the real threshold issue.

By way of analogy: Smith might not care for country music. He might, in fact, despise it. But Garcia is still free to play country music all he wants. And here is the crucial part: Garcia is not free to do so because country music is inherently deserving of protection. Or because, if country music is banned, classical music might be next. Or because someday Garcia might be in charge and want to stop Smith from playing the Beatles.

No. Fundamentally, Garcia is free to play his country music for one immutable reason: Smith has no right to make him stop. What comes out of Garcia's stereo is simply not for Smith to say.

And the same goes for Garcia's mouth.

This column originally appeared in the Richmond Times-Dispatch.

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  1. Walther argues that “freedom of speech is not a first-order good; it exists only to facilitate the flourishing of… society.”

    This is so mind-numbingly stupid that I’m not even sure you could make an argument against it. Mostly because the person who said this wouldn’t understand anything said to the contrary.

    1. how about “Martin Luther King would never have been able to give one speech anywhere if not for freedom of speech”

      1. Walther is right. This is why “freedom of speech” is trumped by basic principles of civility, as can be readily seen in our nation’s leading criminal “satire” case, documented at:

        https://raphaelgolbtrial.wordpress.com/

        Surely no one here would dare to defend the inappropriate “First Amendment dissent” of a single, isolated, so-called judge in that case?

        1. And surely no one here would defend the “constitutionally protected legality” of the offensive mimicry of Mr. Bannon that we recently saw in the news? See:

          http://www.dailymail.co.uk/new…..kster.html
          .
          Indeed, let us all join in urging New York authorities to rapidly issue an arrest warrant for the perpetrator of this outrageous hoax, based on the precedent set in America’s leading (above-linked) criminal “satire” case.

    2. This is so mind-numbingly stupid that I’m not even sure you could make an argument against it. Mostly because the person who said this wouldn’t understand anything said to the contrary.

      I’m pretty sure I’ve Tony make that exact same argument that Walther is making. So yes, anyone who says shit like that has no understanding of the concept of individuality or how natural rights work.

      1. That is exactly why I’m sure Tony is not a sock. I’ve seen him say the same thing as well.

  2. These are all good arguments, but they suffer from a common flaw: They are conditional. They allow for the possibility that censorship might be acceptable if we could ensure that the right people imposed it, that they would draw the lines in the right place, and that good ideas would never be censored.

    I see your point, but raising these specific arguments is meant to bring home the inevitable consequences of censorship to people who see rights as “abstract”. Many is the time I’ve argued principles only to have them waived off as “utopian”.

  3. Editors: Please!

    Agencies or their personnel do not have a “right”, but an authorization, to censor. [Actually, I don’t think they have an authorization to censor either, but they certainly do not have a right.]

  4. It treats people as mere means to somebody else’s end, as Kant would say?not as ends in themselves. The blood-soaked history of the 20th century should have discredited that collectivist vision of society for all time, but apparently it still holds appeal in some quarters.

    Statists see nothing wrong with the idea that we are just cattle in the Collective’s pen. Indeed, they regard that as the Ideal Society. There are people who regularly post here who have that view.

    1. “we are just cattle in the Collective’s pen.”

      How else can you ensure the herds safety? Otherwise, some of the cows might do something non-approved.

  5. No. Fundamentally, Garcia is free to play his country music for one immutable reason: Smith has no right to make him stop. What comes out of Garcia’s stereo is simply not for Smith to say.

    Hey Yokel, this is a Cosmo site! GET OUT!

  6. In related news today, Saudi Arabia arrests a 14 year old boy for making a YouTube video of himself dancing the Macarena in the crosswalk of a street.

  7. There’s an underlying soapbox question I have.

    I live in a very nice suburban town with two parks. We pay through the nose to live there. I do not think there is any requirement on the part of our ragtag City Council to give a permit to anyone to use that park for an organized protest about anything. The parks are for there for the town’s citizens to walk baby strollers and play outdoor games.

    Once you give a protest permit to the Sister’s of the Poor, you also have to give one to radfems and nazis. That’s my practical understanding of the way A1 works on public property. Don’t do it.

    Not sure about this.

    1. Once you give a protest permit to the Sister’s of the Poor, you also have to give one to radfems and nazis.

      Even telling someone they need a permit to protest anything is a violation of the right to speak.

      1. On your soapbox!

        1. If you say so.

      2. … I’m curious how to imagine that would play out.

        Let’s take… a “concert in the park” scenario. Typically this will involve getting a permit to reserve the space, setting up a stage, lots of equipment, setting up barricades to restrict non-staff from certain staging areas and sensitive equipment and so-on.

        If you don’t need a permit to a space, then how does this happen? They just show up and try to occupy the space? If they didn’t reserve the space, by what right can they deny other citizens access to any area of the park? They can’t secure their own equipment. Heck, they can’t set up a stage.

        Same thing with any travelling carnival, fair, circus or so-on. Unless they’re using a privately-owned lot, they can’t restrict anyone from wandering all over the place. That also means no admissions tickets.

        Heck, the boyscouts can’t reserve a couple of picnic areas at a park because they can’t have an exclusive (but temporary) claim to that area.

        Face it, if you take away permits, and enforcement thereof, then you just killed any use of public space that requires any set-up or where you might reasonably want to restrict access to some areas.

        1. Unless they’re using a privately-owned lot

          I see you managed to bury the important bit almost as an aside.

          But let’s say it’s a public space that anyone is able to use. Who gets to determine who can use the park? Who gets to determine who makes the determination? How do you decide who gets to use the park and when? Do you need to setup a little government just to manage the park?

          1. Well yeah I assumed we’re talking about a public venue. If it’s a private one then questions about government censorship are misplaced to start with.

            And you entirely avoided my point. If *any* government restriction on the usage of a public space is illegitimate, you just made it *harder* for the public to reliably make use of public spaces, not easier.

            1. The only way you would think that I avoided your point is if you didn’t understand mine. You’re also, for some reason, confusing property rights with the right to speak. I suspect you’re trying to play gotcha by doing so, but I could be wrong.

              Let’s say public property is a thing. There is this plot of land that literally nobody can claim ownership of. If that’s the case, then your imagined band can come and setup shop in it any time they please. If they can’t setup everything themselves, they ought to hire people to help. If they can’t keep people from wandering into their space, they ought to hire people to help. If they want to be sure that only people who pay can hear them play, they ought to have gone somewhere other than the public fucking park.

              And if nobody will help them secure a section of the public space, well then they’re SOL.

              1. “[…] confusing property rights with the right to speak.”
                Not really. If you don’t have a right to be in a place, then you don’t have a right to speak there. The owner may choose to allow you to speak there (often in exchange for money), but you don’t have a right to that venue.

                And to the rest? As I said, your view of things makes using public land more difficult, not less. That is, of course, your prerogative. But you shouldn’t delude yourself that protests are easier to organize in your preferred world.

                1. EscherEnigma — I think you are confusing two separate issues. The first issue is whether there needs to be a means of offering exclusive use. Fine, no one disagrees with that. Permits are fine. But the second, and relevant issue for this thread, is whether the permit can be withheld for any reason other than a prior engagement. Censors want to withhold permits to those they dislike. That should never be sufficient as a reason for denial of a permit. Indeed, in my view, the only criteria should be whether the space is already reserved.

  8. City leaders in Portsmouth are debating whether to adopt a similar ban, at least with regard to hate groups.

    Everyone say it with me; “That’s unconstitutional!”

    And the same goes for Garcia’s mouth.

    I skipped to the end and I have no context for this statement so I’m going to use my imagination…

    Anyway, “Congress shall make no law…abridging the freedom speech,” is the only argument that need be made. I do the same for the 2nd amendment. Though that one calls for more defining of words in the context of the 18th century.

  9. Listen, I support free speech, but you can’t just go around saying hurtful things in places with other people.

    Words hurt.

    So, the government has the power to regulate speech. Because there’s no hurt that people should have to work out amongst themselves.

    Therefore, the first amendment is the right to free speech in all the places government permits. Which is totally different from not having a right to free speech, where the government can regulate your speech. QED.

    1. “…you can’t just go around saying hurtful things in places with other people….”

      Where, in the Constitution, or anywhere else, is there a right to NOT be offended?
      It may be morally reprehensible, but there certainly is no legal protection against it.

    2. Incomprehensible Bitching —

      I don’t think you have considered what the equilibrium in which anyone can censor someone for “hurtful” words looks like.

      If A can censor B because B’s words are hurtful, and if the authorities enforce that, what is to stop B from asserting that A’s words are also hurtful, and using the power of the state to prohibit A’s speech as well? This is a society in which no one is ever allowed to offer an opinion or an argument that is the least bit possibly controversial. That is what happened in totalitarian societies. Leftists apparently think they will be the only one’s using the state for this purpose.

    3. ” the first amendment is the right to free speech”

      AAAAAARRRGGGH!

      The first amendment is not “the right” to do anything, nor can you properly define rights from it’s sparse descriptions. The Bill of Rights enumerates limits on the federal government, which were extended to all local and state governments after the ratification of the 14th amendment. The Constitution in and of itself does not grant or define any rights of citizens, rather it provides for a limited government so that all citizens can enjoy our natural rights without interference.

      Freedom of speech (like life, liberty, pursuit of happiness, assembly, religion, self-defense, etc., etc.) is a NATURAL RIGHT of every citizen. These rights are self-evident and inalienable, such that, “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”

      To be blunt, no government within the borders of the United States can tell any citizen how to speak, think or act in public. Being an asshole is my unalienable right.

  10. >… a fresh debate over whether the government should allow speech by racists, goons, and assorted other troglodytes.

    I vehemently dislike the wording of this. The government doesn’t have the power to ALLOW speech, only to ban it.

    1. ? wording to you too.

    2. So what you’re saying is that you agree with the entire rest of the article.

      1. For the most part, yes. I just don’t like to see any intimation basic human rights are the government’s to give or take. Government isn’t supposed to grant freedom, it’s supposed to preserve and protect it.

        Sadly, throughout most of human history government hasn’t GRANTED human rights, it has TAKEN them, and this leads people to think we only have rights because government “allows” us to. Like Mr. Paine said, a long habit of not thinking a thing wrong, gives it a superficial appearance of being right.

        1. Government will always be a Sword of Damocles whether you like it or not.

    3. The government doesn’t have the right to stop you from saying something, but, they do have the right to prevent you from saying it on their property. They do not have to issue a permit, although, generally speaking, they always do.

      1. Oh, shut up. Government has no rights, rights are reserved to citizens. Furthermore, government property is by definition public domain. No agency can constitutionally limit free expression in the public domain.

        Now, whether or not they have the ability to do so is unquestionable. They can and do. Police give and folliw unlawful orders every day.

  11. First they came for the Nazis, and I did not speak out, because I was not a Nazi.

    Then they came for the Antifas, and I did not speak out, because I was not an Antifa.

    Then they came for the progressives, and I did not speak out, because I was not a progressive.

    Then they came for me, and there was no one left to speak for me.

    1. None of those people would speak for you or me even if they were left. Which is not to say that I won’t stand up for their right to free speech; I just don’t expect any gratitude from them.

  12. Smith does have the right to use violence to stop Garcia, if Garcia plays Nickleback!
    /Dalmia

    1. Y’know, I was gonna let it slide, but your comment made me re-think that closing line.

      To paraphrase an old quote regarding liberty, “the right to swing your fist stops at my face”.

      So sure, generally speaking, you have the “right” to play whatever music you like and however loud you like. But if you insist on playing it with concert-grade mega-speakers at 1 am, it’s not unreasonable for me to call the cops on you so I can get some sleep.

      1. Why would you want to call the police, they’ll just shoot my dog!!?

      2. “Rock & Roll ain’t noise pollution.”

    2. Amendment XXVIII

      Section 1

      No fucking Nickelback.

      Section 2

      Seriously.

  13. The more important question is: What right does anybody have to shut them up? That is the real threshold issue.

    Well, that’s just an assertion, isn’t it? The writer has provided no basis upon which to say that he may say whatever he likes? Where does that right originate? You simply can’t say no one has the right to shut you up. What if they assert they do? Where’s your assertion got you now?

    That’s often the problem with libertarians, always asserting rights but never explaining their basis in reality, which is why Liberals always win the game.

    1. “Where does that right originate? You simply can’t say no one has the right to shut you up. What if they assert they do? Where’s your assertion got you now?”

      It originates inside my head, asshole. Speech is simply the expression of thought, and thoughts belong inviolably to the individual. Thomas Jefferson referred to it as both “Natural Law” and an unalienable right in the Declaration of Independence.

      Asserting a right to shut someone up betrays violent tendencies, which is why the right to self-defense is also a natural law, and why the 1st amendment is useless without the second.

      1. “Speech is simply the expression of thought”
        Ah, there it is, the ultimate end result, thought crime. If I say “N-word” then I just intentionally put the word “NIGGER” in your mind and that can be rationalized as a crime.

        1. I am not sure where you are going with this.

          “Ah, there it is,” is not usually folliwed by agreement on message boards, which lends this response a troll-ly vibe.

          My points were: that our thoughts are invioably ours; that this was recognized in the Declaration of Independence; and that interference in the expression of our thoughts is specifically prohibited by the 1st amendment. Are these points on which reasonable people can agree?

      2. It originates inside my head, asshole. Speech is simply the expression of thought, and thoughts belong inviolably to the individual. Thomas Jefferson referred to it as both “Natural Law” and an unalienable right in the Declaration of Independence.

        Asshole? My question was rhetorical but that debate technique seems to have gone over your head.

        By the way, asserting (again) that something is a natural right means nothing. I could assert that individuals in society have a natural right to be protected from groups that promote and incite violence. A utilitarian type of strategy, which is actually recognised in law. So one could argue that you have no absolute right to fee speech since it’s constrained by many factors. And factors change over time, and so might your right to expression.

        See, it’s easy to make this shit up. What you fail to do is proceed from a fundamental fact of nature that can be expressed as a right, which is the failing of many libertarians and all Liberals, who claim a right as if it were a natural fact when it’s not connected to much at all. It essentially becomes a matter of opinion, and utilitarian at best.

  14. And the funny part is; The mob already gained censorship control by getting confederate statues removed. Mob Rules I guess.

    1. ha ha. Terrorists expect you to fear potential violence.

  15. Free speech is what makes America different and great. Who would decide what speech is not free would be an ongoing problem. It ain’t broke so don’t fix it.

    1. Different than whom?

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  18. The new law on free speech: You have the right to say anything you want, as long as you agree with me!

    The last thing you really want to do is drive these people underground. The march in Charlottesvilles did more to hurt the White supremacist than shutting them up ever would have done. Shutting them down will only gain them support.

    1. N-Word : )

  19. These are the people who created social media to purportedly give a voice to anyone anywhere anytime. This is the monster they created and now they’re mad they can’t control something that’s fundamentally uncontrollable.

  20. If you take away the right to speech you are only left with rioting but then I think thats the goal of the left. Make the situation worse in order to impose more ORDER.

    note if the people who showed up in Charlotte to protest the “alt-Right” had marched peacefully with songs and candles like they did at the poor dead girls vigil there would have been no violence at all. Sometimes Martin Luther King’s and Gandiw’s tactics are the best method for silencing hate.

    1. Gandhi not Gandiw, where did the w come from?

      1. Booosh!

  21. People who do things that are illegal are criminals, and criminals are bad people.

  22. “There is no right to revoke free speech rights”

    Tthats stated like it’s a fact, but its really, like, your opinion, man. No more or less valid than any other opinion.

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