"Don't Cut the Rattle Off of the Rattlesnake—the Silence Is More Dangerous to You than to the Snake"

Image by Robert F. Graboyes / Midjourney

 

I actually follow Justice Holmes in recognizing the potential benefits of speech restrictions. Among other things, while it's hard to estimate the likely consequences of any particular statement going forward, looking backward we can see that virtually every ideological crime (whether committed by a solo offender, a group, or a government) stemmed in part from some sort of political or religious speech. If only we could prevent that, without causing all sorts of other problems ….

My view, though, is that on balance attempts to restrict the expression of bad views generally do more harm than good; and the quote in the title expresses well one of the many forms of such harm. (The earliest use of the quote I found is from 2018, by Robert Graboyes, though I noticed it because of this more recent post of his.)

Comments

[loki13]

Good post.

One thing I'd like to post about this is the following-

While I have observed that "the right" generally tends to be hypocritical when it comes free speech (mouthing the platitudes to allow their speech, while looking to suppress others' speech), I am increasingly concerned about how "the left" (at least some elements of it) no longer has a strong commitment to the very principle, instead looking at speech as something that, in and of itself, causes harm.

The true test of one's commitment to free speech always is measured not in terms of the speech you like, but instead in terms of protecting the speech that you most assuredly hate. The purpose of the First Amendment (and concomitant private principles of free speech) is not to coddle yourself with the voices of those who tell you what you want to hear, but instead to ensure that those who still wish to provoke, offend, and shock are able to do so.

[SRG2]

It's simple. If someone hates Jews and wants to kill me, I prefer it if they let me know first.

[Nige]

But do you want to hear them going on and on about killing you on television and in newspapers and social media all the time, while simultaneously complaining that they're being silenced and concerned centrists criticise you if you complain? The principles free speech are paramount, but it's idiotic to think that they can't be subverted and weaponised by people who themselves have no interest in free speech for anyone but themselves. It's not even a new problem by any means.

[Rossami]

Good comment. I only disagree in your opinion that "the right" is or ever was any more hypocritical than "the left" on this topic.

[Roger S]

Right-wingers oppose giving porno books to kindergarteners. That would be an example of the right being against free speech.

[Rev. Arthur L. Kirkland]

Right-wingers turn every campus they get their hands on into a censorship-shackled, dogma-enforcing, speech and conduct code-imposing, nonsense-teaching, statement of faith-issuing, loyalty oath-collecting, science-suppressing, academic freedom-rejecting hayseed factory.

The idea that the liberal-libertarian mainstream -- operators of our nation's strongest schools -- would be in the market for pointers from right-wingers -- operators of low-quality, ignorance-infested schools -- regarding anything associated with education or academic freedom is silly.

[Krayt]

The above is free people pseudo-censorship.

That the other side is joining the party as of late is disenheartening.

The people wandering the woods keeping a memory of books in Fabrenheit 451 are now hiding from two factions, both of which are so god damned assured of their Eternal Righteousness.

The Emperor's New Clothes was not written about legislative speech restrictions.

[Nige]

'are now hiding from two factions'

Don't be stupid.

[DaveM]

No, placing porno books where kindergartners can't find them isn't "being against" free speech. It's an example of being in favor of regulating free speech. Regulating a freedom is not the same thing at all as banning it. Done properly, regulation preserves freedom.

[David Nieporent]

The true test of one’s commitment to free speech always is measured not in terms of the speech you like, but instead in terms of protecting the speech that you most assuredly hate.

Uh oh. Don't let Lathrop hear you say that. He hates (no pun intended) the notion that it's the most despised speech that most needs 1A protection.

[Stephen Lathrop]

Another mischaracterization from Nieporent.

I have objected to the careless-but-too-often-asserted notion that the most despised speech is thereby the speech most deserving of protection. It could be true at times. But to assert it universally is to turn notions of worth and virtue upside down.

The wiser way to reckon the question is that it is too dangerous to permit scope for government to decide questions pertaining to the worth of particular utterances. Then let private opinions contend in the marketplace of ideas to determine which utterances are most deserving of respect, which are deserving of scorn, or which might even be deserving of widespread condemnation as worthless or harmful.

Fortunately, in this nation’s society Nieporent’s hyper-rationalistic error is only sometimes encountered. Mostly, the wiser interpretation—the critical need to keep government out of private discourse—is the one relied upon.

Thus, Voltair’s vaunted notion, “I disapprove of what you say, but I will defend to the death your right to say it,” is rightly celebrated as wise, but with equal wisdom regarded as fatuous in any context except the critically important context of defense of expressive freedom from government interference.

In broader context of purely private discourse, only a degenerate society would take as virtuous a universal rule of protection for all speech, however destructive. To accept that would defeat at the outset the most important purpose private discourse can serve—to sort the virtuous ideas from the others.

[David Nieporent]

I mean, you said what I said, but only after calling it a mischaracterization.

[Commenter_XY]

The true test of one’s commitment to free speech always is measured not in terms of the speech you like, but instead in terms of protecting the speech that you most assuredly hate.

This really resonated with me, loki13. I feel exactly the same way. Lately, with the pro-Hamas demonstrations around the country, I understand better why that is so true.

[Brett Bellmore]

Concerning the illustration, the rattle on a rattlesnake is sections of shed skin that interlock, so they hold on after the rest of the skin is shed, forming a rattle. You can cut it off without any bloodshed...

[Drewski]

So brave. Yet you seem to have a different ideological motive than that glurge would suggest. For example, you took a stand on whether retailers can frame debit card charges as an extra fee or offer a cash discount under 1A. You opposed government speech at anti-abortion clinics as a 1A violation. And you oppose pseudonymous litigation. These are not "rattlesnake" issues.

[loki13]

I have noted over the past two decades that it often seems that every litigation issue is being turned into a FA issue. Which ... I doubt the wisdom of that.

"{I}t is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one's friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." Dallas v. Stanglin, 490 US 19, 25 (1985).

[Eugene Volokh]

Drewski: What do you mean, "seem to"? My post expressly says that my concerns about speech restrictions go way beyond this one particular concern (emphasis added):

My view, though, is that on balance attempts to restrict the expression of bad views generally do more harm than good; and the quote in the title expresses well one of the many forms of such harm.

[Drewski]

I guess I didn't read it how you intended it. I stand by my critique that the post overall is saccharine.

[WuzYoungOnceToo]

I guess I didn’t read it how you intended it.

You didn't even manage to read it as he wrote it.

[taqmcg]

Don't particularly agree with your comment, but thanks for introducing me to the word glurge. I hadn't run into it before that I can recall.

[Commenter_XY]

That was new for me too = glurge

[Sevo is my bitch]

Cut the head off a Nazi and you will have less danger from the Nazi.

[Ed Grinberg]

Great! First dibs on being the Chief-Nazi-Definer!

[Nige]

Right wingers always seem weirdly proud about their inability to spot Nazis.

[Brett Bellmore]

Left wingers seem insanely proud of their conviction that everybody they disagree with is a NAZI.

[ThePublius]

Agreed. And they have called every Republican presidential candidate since Roosevelt "Hitler."

[Nige]

Who coined 'Hitlary?'

[Nige]

It's usually the Hitler salutes and swastikas that give them away.

[Stephen Lathrop]

Problem is, the analogy sucks. I would like to write a paragraph or two to explain why.

Problem is, if I do that, Nieporent will be along presently to mischaracterize what I said, and call me an enemy of expressive freedom. Nieporent has access to an unedited forum which he is free to use to blacken my reputation to the entire world. Because I am concerned about that, I choose not to write to explain what is wrong with OP's analogy.

The unedited character of this forum has thus chilled my expressive freedom. I pass by without mention that my concern about Nieporent is but a part of what I might have chosen to write to explain what is wrong with the analogy.

[David Nieporent]

I only call you an enemy of expressive freedom because you're an enemy of expressive freedom. On every single issue that does not involve the rights of publishers, you come down on the side of government power at the expense of speech.

[Stephen Lathrop]

False in every syllable, of course.

But QED too, from a self-indulgent ideologue.

Nieporent does not understand the gigantic influence that private, mutually-competitive, uncensored publishing has brought to bear on behalf of expressive freedom for everyone.

That is before consideration of what vacuities everyone's expressions would amount to, if they had no access to information published by professional news gatherers.

[Stephen Lathrop]

A particularly offensive lie is this from Nieporent: "On every single issue that does not involve the rights of publishers, you come down on the side of government power at the expense of speech."

I suspect that an objective evaluation would show the opposite: that among regular commenters on this blog, I am probably the one commenter who most frequently denounces government power to interfere with speech. Government interference with both fact and opinion is, and has been all my professional life, a bête noire.

But by now I have learned to speak fluent Nieporent. I am capable to translate his ravings into more forthright expressions of nearly-respectable views. Nieporent unaccountably takes as proven and uncontroversial a notion that private publishers should never share liability with their contributors when defamations are published. On that basis Nieporent counts defamation law itself an assertion of government power to restrict speech. Nieporent hates that defamation law encourages nearly to the point of requirement the use of private editing prior to publication. He and I differ on that point.

I think the very best way to hold at bay government interference with published content is private editing practiced among a profusion of private publishers numbering in the tens of thousands at least. Those have power to compete mutually to publish the full spectrum of opinions conducive to the national interest—but when necessary can command political power to band together to mobilize public opinion to defend expressive freedom against government meddling.

I get that Nieporent disagrees. Unfortunately, instead of forthright acknowledgement that he is contending in controversy, Nieporent prefers to lie about my advocacy without explanation. He does it again and again, and it gets tiresome.

[David Nieporent]

On that basis Nieporent counts defamation law itself an assertion of government power to restrict speech. Nieporent hates that defamation law encourages nearly to the point of requirement the use of private editing prior to publication. He and I differ on that point.

Yes; I come down on the side of more speech and you come down on the side of more government restrictions on speech. QED.
​
​
Also, tell us what you think about the power of government schools to control student speech. (You've repeatedly argued that it should be coterminous with the power of private schools to control student speech — i.e., that students have no 1A rights at all vis-à-vis schools.) Tell us what you think about fair use. Tell us what you think about people demonstrating outside a vaccine site. Tell us what you think about someone claiming an election result is fraudulent.

[Absaroka]

"Nieporent has access to an unedited forum"

Quelle horreur!

Of course, so do you.

More fun, I suppose, to have a platform where you are the editor and can say what you like, and suppress opinions that differ. That fun comes with a risk, though - that you develop an unwarranted confidence in your ideas.

[Don Nico]

Remember he used to edit a small town newspaper where he had just that power (or so he used to bragg).

[Stephen Lathrop]

Nico, compared with Nieporent, with whom I contend in exasperating debates, you are a crap-level commenter. It is particularly small-bore to insinuate that you yourself do some kind of publishing, while deriding experience of mine you know nothing about, and withholding your name so no can check if you are making it all up, as I increasingly suspect.

[Don Nico]

I have been editor-in-chief of a major scientific journal for almost 30 years. That is a lot more than some kind of publishing. I don't have time for pointless long debates with you based on your use of magic words.
You can and will believe what you what about me. It's your prerogative. I don't care. I need not explain more to you.

[WuzYoungOnceToo]

Remember he used to edit a small town newspaper where he had just that power (or so he used to bragg).

He also like to talk about having been shot at multiple times. The more I read his ramblings the more I think of Chris Rock's, "I'm not saying it's right...I'm saying I understand it" routine.

[Stephen Lathrop]

Absaroka, that expressive responsibility comes with risk is a notion ingrained in me by long experience. To encourage myself to manage that risk responsibly has always, for many decades, been a big part of why I publish under my own name.

Before lecturing me on that topic, I suggest you, and the others similarly inclined to lecture me on this blog, undertake that same sense of responsibility, and ditch your pseudonyms.

[Absaroka]

Your position seems to be that, say, DMN's position on some issue deserves more credence than Noscitur's, simply because DMN is posting under his real name.

I can't say I am impressed by this logic. I think that comments here should stand or fall on their own merits, instead of believing that a given position must be right or wrong based on who said it. I think it might be an improvement if comments were all anonymized , just to prevent that kind of thinking. People should be engaging with the message, not the messenger, IMHO.

Brett and Sarcastr0 frequently disagree here. Sometimes I think one has the better argument, sometimes the other. The view that Brett posting under his real name necessarily means he is more likely right than anonymous Sarcastr0 strikes me as pretty obviously wrong.

[ObviouslyNotSpam]

Too many idiots in this world to post under a real name these days.

Plus, there's those confirmation hearings to consider...

[Absaroka]

"there’s those confirmation hearings to consider…"

heh 🙂 I stand with Senator Udall.

[Noscitur a sociis]

I agree that , for you, keeping quiet about your opinions and beliefs is indeed the best way to avoid sullying your reputation.

[Stephen Lathrop]

Whereas for you,"Noscitur," hiding behind a pseudonym, what?

[Frank Drackman]

at least it's a cool name, instead of something lame like "Stephen Lathrop", can you imagine actually having to live with a name like that?

[Don Nico]

Of poor you!
But i don't believe that you are chilled with respect to saying what you think.
I also don't believe that David has that magic power to stop people from expressing their opinions.
Finally you have not even tried to explain why you don't like the analogy. Be brave. Give it a shot.

[Kazinski]

Blacken your reputation?

Did he accuse you of kiting checks?

As someone who's been called a chicken fucker on this unedited forum, I'll advise you just grow a thicker skin, if someone throws around gratuitous allegations or insults it reflects a lot more on them than me.

But merely telling you that you're wrong and why is a matter of opinion that would be unremarkable in any forum, edited or unedited.

And feel free to edit Dave yourself, there is always the mute button. I've never seen Dave cross a line to be muted, although he often calls me a liar. The only reason I mute Kirkland is because he's boring and repetitive and never says anything interesting, not that he tries to be insulting.

[Stephen Lathrop]

Kazinski, are you crazy enough to suppose you have been called anything at all on this forum? No one knows who you even are, because you are in hiding.

As perhaps you can tell, I have grown weary of being lectured about consequences by cowards. Everyone, including yourselves, would put a higher value on your commentary if you put your name on it.

[ObviouslyNotSpam]

I agree, but everything has a price, or rather, a cost. One you're willing to pay, and I'm not.

If that is your real name, you have my respect for sticking your neck out, but that doesn't affect the merit (or not) of what you write.

[darkknight9]

Quit being a wuss.

[Commenter_XY]

lathrop, I want to thank you for an epically entertaining thread on self-flagellation. 🙂

[CommentMonkey]

I'm struggling with the suggestion that speech suppression might work if we knew ahead of time which speech was going to lead to harmful outcomes. The proposition is that "virtually every ideological crime . . . stemmed in part from some sort of political or religious speech."

No doubt "ideological crime" is generally preceded by the expression of odious ideas. But that is correlation, not causation.
Even if backward looking suppression of speech was possible - if one could use a time machine to censor speech very selectively - it strikes me as unlikely that much, if any, "ideological crime" could be prevented.

Certainly speech can result in the spread of harmful ideas, increasing the likelihood of action motivated by such ideas and the severity of harms associated with them. But saying depraved things out loud can also have the effect of discrediting the speaker or (as in the rattlesnake analogy) warning others, both of which would serve to weaken the speech-action chain. Moreover, suppressing speech can cause radicalization of those who are prevented from speaking. It can turn an harmless crank into a martyr, which might actually increase the risk and severity of harmful action.

My guess is that, even if post hoc speech suppression was possible, it would have little or no net benefit. I suppose we'll never know.

[Brett Bellmore]

The classic problem is that, even if it were possible to correctly identify speech that would lead to harm, once you set up a mechanism to suppress it, there would be no reason to believe it would end up controlled by people who would use it that way.

We don't reject censorship out of the belief that all ideas are equally valuable, but because there is, as a practical matter, no way to create a system that will only censor ideas that lack value.

[mydisplayname]

For those reading the referenced Graboyes essay, The Playboy interview of William Shockley is available at https://nextbillionseconds.com/wp-content/uploads/2021/05/shockley_playboy_1980.pdf and is worth re-reading.

We may have [justifiably] cancelled Shockley, but not his [claimed] inventions. Is it right -- or even logical -- to use the product of a person we wished never existed? Should we cancel both von Braun, who was always reaching for the stars (but hit Central London instead), and his products... or just the man?

A rattlesnake's venom has effect even after the snake's death, no matter if the snake was heard before biting. But what if a silent rattlesnake bit an unsuspecting young Mr. Hitler? What if a silent black rattlesnake stealthily crept up on Shockley and bit him (as one did in the Playboy interview)?

I generally like the analogy as applied in the original post; however, like most musings from Justice Holmes, it must be applied with caution.

[SimonP]

My view, though, is that on balance attempts to restrict the expression of bad views generally do more harm than good; and the quote in the title expresses well one of the many forms of such harm.

Eugene, this is an empirical claim. Do you have empirical support?

This is the sort of thing that law students start mouthing in their Con Law classes, repeat when they start teaching other law students, and evidently continue to espouse even once they’ve reached a point in their legal careers where they could ask a seemingly basic question like, “Wait, do I know this to be true?”

Certainly, we can look over the sea of stupid, offensive statements made on Reason’s commenting pages, and conclude that somehow restricting all of this drivel would be a vastly overbroad response to the risk that only one or two of the commenters are likely to carry out their threats. But this takes for granted that the mere mouthing of the opinions is itself harmless. What if creating environments where hate speech thrives (say) demonstrably increased the number and severity of hate crimes that occurred? Do we know what actual effects that restricting or permitting such speech may have?

There is something offensive to the American sensibility, when we consider the kinds of speech restraints we can find in Europe and other democratic nations. But it’s worth asking whether they’ve done any good, before we say things like, “on balance, the US gets it right.” I’m not sure you’re saying anything other than a broadly-accepted platitude.

[ObviouslyNotSpam]

I do think Trump has somehow "enabled" some of his more unhinged supporters to say and do things they have never done before, but I don't think this is an argument for curtailing the First Amendment.

That is simply the price we must pay to have a 1A which means something. (Ditto a 2A, obvs.)

[SimonP]

You're not adding anything here.

I haven't made a particular argument for or against "curtailing" the First Amendment. But I do think the discourse is lacking an analytically rigorous account of what "free speech" is - or is supposed to be, for purposes of the First Amendment - and what interpretation of the First Amendment best promotes it. If we were to do such an analysis, we might find that there is a point at which further permissiveness yields less effective "free speech."

[DaveM]

“… virtually every ideological crime (whether committed by a solo offender, a group, or a government) stemmed in part from some sort of political or religious speech.”

The word choice here is poor, in my opinion. First, It cannot be that crime “stems from” speech, because speech is only a carrier of ideas, not the source of them. Every “ideological crime” stems from an idea. Not from the expression of that idea. And why single out speech for guilt by association? The very air which the criminals are using to transmit the sound waves of their speech would be equally “guilty” of association in this sense -- as would everything else the criminals ever touched or used.

[Krayt]

The purpose of speech is to have an effect on other people.

The value in the First Amendment is not that there’s value in everything drooled out of someone’s mouth, but in denying nascent tyrants one of their greatest tools.

Upon hearing “you just need a transient 51% majority to censor”, a demagogue, to whom transient 51% majorities are their stock in trade, says “Right on!”

[Ken Arromdee]

A rattlesnake is using its rattle to communicate, but is using its bite to cause damage, so restricting one doesn't help against the other. Someone saying bad things is using the same method to communicate and do damage.