Category Archives: Free Speech

The Perils of Restricting Hate Speech

A while back, the Los Angeles Times published an op-ed by Laura Beth Nielson arguing that there’s a case for restricting hate speech.

As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates. Despite the 1st Amendment—I tell my students—local, state, and federal laws limit all kinds of speech. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some can’t grasp why, if we restrict so many forms of speech, we don’t also restrict hate speech.

That’s where things get wobbly:

The typical answer is that judges must balance benefits and harms.

Okay…this feels awkward… Nielsen is a professor of sociology and the director of the legal studies program at Northwestern University, and she’s also a research professor at the American Bar Foundation, whereas I’m just a loudmouthed blogger. And yet…I’m pretty sure she’s wrong.

The limits on our First Amendment rights are narrowly defined, and to the extent that those rights are balanced, it’s not by judges. First Amendment lawyer Ken White explains the distinction, in another LAT piece:

Censorship advocates often tell us we need to balance the freedom of speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts don’t decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific 1st Amendment exception. As the Supreme Court recently put it, “[t]he First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.”

Back to Nielson:

At the same time, our regime of free speech protects the powerful and popular. Many city governments, for instance, have banned panhandling at the behest of their business communities. The legal justification is that the targets of begging (commuters, tourists, and consumers) have important and legitimate purposes for being in public: to get to work or to go shopping. The law therefore protects them from aggressive requests for money.

Yeah, I’m not a big fan of some of those anti-panhandling laws either.

Consider also the protections afforded to soldiers’ families in the case of Westboro Baptist anti-gay demonstrations. When the Supreme Court in 2011 upheld that church’s right to stage offensive protests at veterans’ funerals, Congress passed the Honoring America’s Veterans’ Act, which prohibits any protests 300 to 500 feet around such funerals.

Again, Nielson is some kind of expert and I’m not, but…I’m pretty sure that particular law is written in a way that is viewpoint neutral: It doesn’t prohibit protests based on the content of the protesters’ speech. In fact, it doesn’t prohibit protests at all. It prohibits disrupting veterans’ funerals.

Nielson does go on to make an important point in what I think is the best part of her piece:

So soldiers’ families, shoppers and workers are protected from troubling speech. People of color, women walking down public streets or just living in their dorm on a college campus are not. The only way to justify this disparity is to argue that commuters asked for money on the way to work experience a tangible harm, while women catcalled and worse on the way to work do not — as if being the target of a request for change is worse than being racially disparaged by a stranger.

In fact, empirical data suggest that frequent verbal harassment can lead to various negative consequences. Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies. Exposure to racial slurs also diminishes academic performance. Women subjected to sexualized speech may develop a phenomenon of “self-objectification,” which is associated with eating disorders.

These negative physical and mental health outcomes — which embody the historical roots of race and gender oppression — mean that hate speech is not “just speech.” Hate speech is doing something. It results in tangible harms that are serious in and of themselves and that collectively amount to the harm of subordination. The harm of perpetuating discrimination. The harm of creating inequality.

This part of Nielson’s argument is a solid explanation of why hate speech is unethical. In fact, I would go further: One of my recurring themes around here, usually in connection with economics, is that just because some benefit or cost isn’t tangible doesn’t mean it isn’t real. So even if people hurt by hate speech didn’t suffer tangible harms, they may still have suffered harm. For lack of a better word, their “hurt feelings” matter.

The hard part, however, is figuring out what to do about it. It is here that Nielson’s argument runs into the usual problems.

Instead of characterizing racist and sexist hate speech as “just speech,” courts and legislatures need to account for this research and, perhaps, allow the restriction of hate speech as do all of the other economically advanced democracies in the world.

Many readers will find this line of thinking repellent. They will insist that protecting hate speech is consistent with and even central to our founding principles. They will argue that regulating hate speech would amount to a serious break from our tradition. They will trivialize the harms that social science research undeniably associates with being the target of hate speech, and call people seeking recognition of these affronts “snowflakes.”

But these free-speech absolutists must at least acknowledge two facts. First, the right to speak already is far from absolute. Second, they are asking disadvantaged members of our society to shoulder a heavy burden with serious consequences. Because we are “free” to be hateful, members of traditionally marginalized groups suffer.

I acknowledge both of these facts, but I don’t think they get Nielson where she wants to go.

Actually, Nielson never says where she wants to go. Beyond a vague statement that “courts and legislatures need to…perhaps, allow the restriction of hate speech,” she never spells out what remedy she wants for the problem she identifies. So let’s get that out in the open: In order to protect members of traditionally marginalized groups from hateful speech, Nielson wants to make hate speech a crime.

How do you think that will turn out?

Pop quiz: If a middle-aged white guy walking down the street in a business suit calls a black woman a “cunt,” and at the same time in a different part of town a young black male walking down the street in baggy pants and a do-rag calls a white woman a “cunt,” which one of them is more likely to be arrested for hate speech? Which one is more likely to be stuck in jail because they can’t make bail? Which one is more likely to be pressured into pleading guilty because they are locked up? Which one is more likely to serve time in a cage? Which one is more likely to have trouble finding a job because they have a criminal record?

Oh, I’m sure there will be a few high-profile prosecutions of racist white guys — maybe some prosecutor will try to make his bones prosecuting Milo Yiannopoulos or Richard Spencer — but you’re kidding yourself if you think most of the arrests won’t be of people from the same groups that always get arrested for petty crimes: Blacks, Hispanics, poor people, immigrants, and the mentally ill.

History has shown that creating whole new reasons for incarceration rarely works out well for members of traditionally marginalized groups. Make hate speech a crime, and sooner or later we’ll be reading stories about a 45-year-old homeless black man killed by cops who were arresting him for a racist slur.

Free Speech For Assholes

I’ve been taking some mild heat on Twitter for this response:

Honestly, I can’t even remember why exactly I don’t like Gavin McInnes. Somewhere between his annoying appearances on The Independents and the amazingly awful crap he wrote for the cesspool that is Thought Catalog, I developed my opinion that he is a huge asshole. However, I also support a broad concept of free speech, so I support his right to speak unmolested. The combination just feels a bit weird.

I had a similar response earlier to the news that reputed neo-Nazi Richard Spencer got sucker-punched on video.

There’s something I find fascinating about the tension I feel when this kind of thing happens. I despise neo-Nazis and their fellow travelers, but I support their right to free speech. Those of us who hate what they’re saying have every right to criticize them, and the people who invite them to speak, and the people who come to hear them. But we do not have the right to use violence (or the threat of violence) to stop them from speaking, or to otherwise prevent people from hearing them. That’s not how freedom of speech works.

It’s tempting to allow a few exceptions — Nazis for God’s sake! — but exceptions have a way of swallowing the rule. Shortly after everyone got so excited about a Nazi getting attacked, protesters at a university apparently became violent enough that they shut down a speaking event by a gay Jewish man. That gay Jewish man was Milo Yiannopoulos, a noted alt-right troll, so lots of people cheered his being shut down for his “hate speech,” but note how quickly some people went from cheering a neo-Nazi getting silenced to cheering the silencing of a man the real Nazis would have sent to the gas chamber twice over.

If nothing else, this kind of thing seems like bad strategy. We’ve just elected a president who campaigned against “political correctness” blown all out of proportion, and now protesters are handing him real examples of political correctness gone too far. He even tweeted about the Milo incident and threatened to cut UC Berkeley’s funding. That’s probably an empty threat, but you can bet a lot of his followers agreed with it. And given Trump’s own hatred of free speech, is it really a good idea to be making the argument that some speech deserves to be suppressed? Trump would almost certainly suppress speech that the protesters like.

(Also, this incident got Milo far more attention than he’s had in months. Was that really a good result for the protesters?)

I firmly believe in freedom of speech, and for reasons both principled and practical, I have no trouble supporting the rights of Gavin McInnes, Milo Yiannopoulos, and Richard Spencer to speak and be heard.

However…I still enjoy it when bad things happen to to assholes. Especially Nazi assholes.

The Worst Way To Fight Fake News

There’s been a lot of talk about “fake news” lately, apparently because some people blame it for Donald Trump’s election. Over at Bloomberg View, columnist Noah Feldman, who’s also a professor of constitutional and international law at Harvard, thinks it’s time to do something about it. Basically, he doesn’t think our experiment with free speech is working out:

In the free marketplace of ideas, true ideas are supposed to compete with false ones until the truth wins — at least according to a leading rationale for free speech. But what if the rise of fake news shows that, under current conditions, truth may not defeat falsehood in the market? That would start to make free speech look a whole lot less appealing.

I’ll leave the legal analysis up to the lawyers (Scott Greenfield’s review of this article is scathing), but I think the professor has an interesting analysis of the problem. I think his solution is wrong, which I’ll get to later, but his analysis is still interesting.

But to take the marketplace metaphor seriously means admitting that sometimes, markets fail. Holmes himself gave us the most famous example of market failure when he said, in a different 1919 case, Schenck v. United States, that even “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”This thought experiment in turn led Holmes to his most famous formulation of free speech doctrine: that the question in every case is whether the words “create a clear and present danger.”

Falsely shouting fire in a theater is a perfect example of market failure in the communication of ideas. The person shouting knows he is lying — but others don’t know, and won’t have time to check. The words will cause an immediate panic, even if everybody is acting rationally, because the only logical thing to do is to get out, and get out quickly.

The “marketplace of ideas” is mostly a metaphor, not a literal marketplace, but putting aside the questionable value of Holmes’s example, this is actually a fairly good analogy to the kind of market failure that can occur because of asymmetric information between the parties.

As the Nobel Prize winning economist George Akerlof showed in his classic 1970 article, “The Market for Lemons,” asymmetric information can systematically distort the quality of what’s available in the market. In his stylized example, if good cars and lemons are both for sale, and consumers know this but don’t know which are which, they will be willing to pay the average price. That will lead the sellers to withhold the good cars, which could fetch a higher price — but that in turn will lead consumers to lower the price they are willing to pay. The resulting spiral of adverse selection leads to market failure.

As it happens, it’s a lot more expensive to generate true news stories than false ones. News requires reporting and research and institutional structures like editors and fact checkers to support them. Fake news only takes one person’s imagination. And there is certainly information asymmetry between the person who writes a story and the person who reads it. Applying the Akerlof analysis suggests that fake news could conceivably drive out true news.

This is an interesting example of applying economic thinking to a problem that is not normally considered economic in nature. “The Market for Lemons” argued that in the presence of asymmetric information about quality, buyers wouldn’t know how to identify quality products and therefore the market would not reward sellers for quality. Sellers of high-quality products would therefore leave, and the process would spiral down until only very low-quality products were trading. In the worst case, the market would disappear completely.

Ackerlof’s paper takes asymmetric knowledge about product quality as a given, but in real-world markets it’s often not clear whether asymmetric information is a serious problem. That’s not a slam on Ackerlof. He was clear about his assumptions, and there’s strong evidence that asymmetric information does cause real problems in some markets. (It rules how insurance plans are designed and sold.) But there’s also evidence that many real-world markets have found ways to circumvent the problem.

The most common solution is for sellers to try to reduce the information asymmetry by establishing and maintaining a reputation. This makes use of the fact that buyers will want to purchase the same product over and over, so if a seller has a history of producing good products, buyers can rely on that history to guide their purchasing decisions. This sets up a positive feedback loop: The seller’s reputation gives buyers confidence in the product and therefore a willingness to pay more money, and that increase in potential future revenue makes it valuable for sellers to have a good reputation, which makes it worthwhile for sellers to build a good reputation by expending the effort to produce a quality product.

Another common solution is for buyers to try to reduce the information asymmetry by relying on third parties to provide reliable assessments of product quality. I had to buy a snowblower for the first time this year, and I relied on information from knowledgeable friends, Consumer Reports, a variety of web sites, and online buyer reviews at Home Depot, Lowes, and Amazon. In this age of the internet, information is easier to find than it’s ever been.

(Other solutions, such as offering easy returns and product warranties are effective as well, but I can’t see a way to apply them to news.)

Feldman, however, doesn’t seem interested in any of these solutions. He goes straight to stepping on necks:

The classic solution to market failure is regulation. Holmes, in his fire-theater example, certainly believed that was permitted by the First Amendment.

The question is whether government regulation of fake news would be justified and lawful to fix this market failure.

Justified? No, not even under Holmes’s example. If you’re in a crowded theater and someone shouts “Fire!”, your best move is to get out as fast as possible. You don’t have time to reflect on the shouter’s claim and debate it with your fellow theatergoers. The “market failure” in shouting fire in a crowded theater is that there’s no time for the “marketplace of ideas” to operate.

Reading the news doesn’t come with that kind of urgency. There’s plenty of time to research stories and read what other people are saying about them.

Obviously, it would be better if the market would fix the problem on its own, which is why attention is now focused on Facebook and Google. But if they can’t reliably do it — and that seems possible, since algorithms aren’t (yet) fact-checkers — there might be a need for the state to step in.

Here’s where Feldman tries to play a trick on his readers. He starts by saying the problem is that Facebook and Google are unable to function as fact checkers, which is fair enough, and then he says the state should “step in.” But he doesn’t just want the government to provide the fact checking that he says is needed. He wouldn’t need to write an article about that because fact-checking isn’t legally controversial: Government employees are free to research the statements of fact within a news story and publish their evaluation, and government press offices do that all the time already.

No, what Feldman wants is for the government step into the marketplace of ideas and pick winners by force, which is why he runs into concerns about constitutionality.

Under current First Amendment doctrine, that wouldn’t be allowed. The Supreme Court has been expanding protections for knowingly false speech, not contracting it. And it would be extremely difficult to separate opinion from fact on a systematic basis.

From there, Feldman’s argument dissolves into attacking a straw man with a flurry of hand waving:

But we shouldn’t assume that the marketplace of ideas works perfectly. And given that, we shouldn’t be slavishly committed to treating the marketplace metaphor as the basic rationale for free speech.

Perfection is not the standard. I don’t think anyone believes the marketplace of ideas is perfect. But if you propose to replace the free market with something else, you should at least do your audience the courtesy of trying to explain why your proposed solution would be better, and Feldman doesn’t even try. It’s like he thinks it’s just obvious that of course government can do this.

The current freakout over false news depends on two major items of concern: (1) That fake news is produced by liars, and (2) that fake news is believed by fools. Feldman’s proposal is utterly lacking in detail, but I’d love to hear why he’s so sure that his solution will not be created and carried out by more of the same liars and fools.

For Christ’s sake, we’ve spent the last year and a half watching a gruesome demonstration of how government leaders are chosen. What in God’s name makes anyone think those people should have the final word on what’s true in the news?

False news that hinders public discussion and encourages irrationality may have a role in the marketplace; but it doesn’t contribute to the good functioning of democracy.

Speaking of democracy, politicians are notorious liars. Unsurprisingly, so are a lot of the government functionaries who work for them. I’m not talking about crazy anti-government conspiracy theories, either, I’m talking about the routine lies that government employees tell to keep their jobs and make them easier: Cops lying about incidents, experts exaggerating their credentials, and department heads who refuse to recognize facts that would be inconvenient for the continued funding of their departments.

I’m talking about the Drug Enforcement Agency refusing to recognize the medical benefits of marijuana long after its acceptance by the medical community. I’m talking about the Tuskegee syphilis experiment. I’m talking about the numbing sameness of the lies that many cops tell on the stand. I’m talking about the legal fictions that label people as drug dealers when they don’t deal drugs, as pimps when they aren’t pimping anyone, and as money launderers when they aren’t laundering money.

I’m sure Professor Feldman imagines that when the government implements his fake news suppression program they will decide which news is real or fake with the help of wise and honest scholars (such as himself). I think it’s more realistic to assume it will be staffed by people like TSA agents, DMV clerks, and those public school administrators who call the cops when a kid makes a shooting gesture with his fingers.

A Bad Remedy For Bad Climate Speech, Again

A few months ago I complained that New York State Attorney General Eric T. Schneiderman and other state Attorneys General appeared to be starting a campaign to intimidate climate skeptics and/or deniers under the guise of investigating ExxonMobil.

Now comes news of a counterattack: Rep. Lamar Smith (R-Tex.) has issued congressional subpoenas for Schneiderman and Massachusetts Attorney General Maura Healey, along with nine climate activist groups, requesting all relevant communications between the groups and the attorneys general in order to investigate a possible conspiracy “to act under color of law to persuade attorneys general to use their prosecutorial powers to stifle scientific discourse, to intimidate private entities and individuals, and deprive them of their First Amendment rights and freedoms.”

I have two responses to this development:

(1) AH-HA-HA-HAHA! LIVE BY THE SWORD, DIE BY THE SWORD, MOTHERFUCKERS!!! PAYBACK’S A BITCH, AIN’T IT?

and

(2) This is really very wrong.

I have no actual sympathy for AGs Schneiderman and Healey. They are government employees, public servants subject to oversight and review. They started this, and for their attempts to stifle free speech they deserve to be gang-subpoenaed by congress, repeatedly.

The climate activist groups, on the other hand, are citizens exercising their free speech rights to discuss matters of public importance and — to the extent that they communicated with various attorneys general — petition the government. They don’t have to explain themselves to anyone.

As I said before, this is not how science is supposed to work. That’s not how debate over public policy is supposed to work.

A Bad Remedy For Bad Climate Speech

When I’m reading a news story, there are two words which almost guarantee I’ll be cringing by the end: Attorneys general. The position of attorney general is usually seen as a stepping stone to higher office, so it’s often occupied by some subspecies of spotlight-seeking control freak. Just one of them would be bad enough, but when a bunch of attorneys general from different states take the time to work together toward a common goal, you just know it’s going to be something awful, something like passive aggressively pressuring Google to censor search results, vilifying MySpace because the AGs didn’t follow proper procedures, or accusing Craigslist of human trafficking. I mean, Christ, thirty-five of them got together to complain that Four Loko booze comes in cans that are too big.

This time a pack of twenty AGs are attacking the free speech of climate change skeptics:

Not only do Schneiderman and his new claque climate crusaders aim to force ExxonMobil to repent (while possibly extracting some cash along the way), they also evidently intend to shut up non-profit groups to which the oil company donated funds that have questioned the notion of impending man-made climate catastrophe.

In service of this goal, the Attorney General of the U.S. Virgin Islands Claude Walker has issued a subpoena to the Washington, D.C.-based think tank the Competitive Enterprise Institute. According to CEI, the subpoena demands that the non-profit produce “a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.”

Admittedly, this is not a direct attack. The main thrust of the investigation is aimed not at CEI but ExxonMobil. The attorneys general are investigating whether ExxonMobil lied to investors about the effects of climate change on shareholder value.

For example, changing patterns of Arctic ice thawing could disrupt the company’s oceanic drilling and shipping operations, and thawing permafrost could cause upheavals that might damage buildings or pipelines, as could increasingly violent weather patterns. By playing down climate change, critics (and attorneys general) might argue, ExxonMobil is playing down the costs they will incur. Of course that applies to any business that could be affected by climate change, not just the oil companies that are the favorite targets of environmentalists.

A more specific concern is the oil in the ground. Oil companies make their money by pumping that oil out of the ground and selling it to people, and a large part of their current stock value comes from the expectation that they will be able to continue doing that for many decades into the future. The problem is that burning those enormous oil reserves will do immense damage to our planet’s climate. So it’s quite likely that world governments will at some point force the oil companies to leave most of their reserves in the ground — at least if the world is going to limit warming to the commonly cited 2°C target. In other words, because of climate change, oil companies will not be able to make nearly as much money as everybody thought they would. Therefore, by playing down climate change, companies like ExxonMobil are effectively lying about the value of their stock.

It’s an interesting economic point, and the same reasoning applies to coal and gas companies as well, but so far we haven’t seen the expected massive decline in the stock prices of companies with large fossil fuel reserves. The capital markets don’t seem to believe that we’ll be leaving all that oil, gas, and coal in the ground. That may be a realistic analysis: Current predictions are for an increase in fossil fuel consumption over the next couple of decades, likely blowing through the 2°C warming target.

There are a lot of unknowns here, and unknowns are risks, and risks are supposed to be disclosed to investors. Have the oil companies been doing it right? I haven’t got a clue, but that’s what the attorneys general are claiming to be investigating.

On the other hand, I’m pretty sure the Competitive Enterprise Institute has nothing to do with any of this. They have no obligations to investors in the fossil fuel industry. So how did they get sucked into the investigation?

It sounds like the attorneys general are pursuing some sort of conspiracy angle in which ExxonMobil was paying CEI to mislead the public as a means of influencing investors. I suppose that theory gives them plausible legal cover for harassing CEI. However, given that U.S. Virgin Islands Attorney General Claude Walker worked for eight years as an attorney for the U.S. Environmental Protection Agency, and that former Vice President Al Gore was included in a recent press conference about the investigation, it seems likely that this move is less about financial fraud and more about finding a way to strike back at ideological enemies in the climate argument.

New York Attorney General Eric Schneiderman started his investigation of ExxonMobil last year, but the subpoena to CEI didn’t come until after CEI attorney Hans Bader published an article critical of the investigation, which sounds a lot like retaliation. I can’t help thinking that some of the attorneys general are enjoying the chance to slam an enemy of environmentalists with the high cost of fighting or complying with the legal process. And if they could find a way to implicate CEI members in the conspiracy, all the better, right?

University of Tennessee law professor Glenn Reynolds argues that this is illegal:

Federal law  makes it a felony “for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).”

I wonder if U.S. Virgin Islands Attorney General Claude Walker, or California Attorney General Kamala Harris, or New York Attorney General Eric Schneiderman have read this federal statute. Because what they’re doing looks like a concerted scheme to restrict the First Amendment free speech rights of people they don’t agree with.

I don’t know if Reynolds is right, but this kind of legal action seems to be part of a disturbing trend in which environmentalists have been trying to use the legal system to suppress the free speech of climate change skeptics.

I suppose it started with climate scientist Michael Mann’s lawsuit against several critics, including columnist Mark Steyn at the National Review and Rand Simberg at CEI. That’s just one guy (and he kind of had a point, even if the lawsuit is apparently stalled), but more recently 20 climate scientists signed a letter to President Obama calling for far more dangerous action:

We appreciate that you are making aggressive and imaginative use of the limited tools available to you in the face of a recalcitrant Congress. One additional tool – recently proposed by Senator Sheldon Whitehouse – is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America’s response to climate change.

The RICO statutes are one of the biggest loose cannons in federal law. Originally intended to help fight organized crime, RICO laws have been used to enhance penalties for things like securities fraud and teachers altering test scores or to fight marijuana legalization. Apparently, there’s been some talk in the Department of Justice about using RICO against climate skeptics, and I wouldn’t be surprised to see DOJ joining the attorneys general in their crusade against bad science.

Even Bill Nye “the science guy” is kind of okay with jailing people over climate science:

Asked about the heated rhetoric surrounding the climate change debate, such as Robert F. Kennedy Jr.’s previous comments that some climate skeptics should be prosecuted as war criminals, Mr. Nye replied, “We’ll see what happens.”

“In these cases, for me, as a taxpayer and voter, the introduction of this extreme doubt about climate change is affecting my quality of life as a public citizen,” Mr. Nye said. “So I can see where people are very concerned about this, and they’re pursuing criminal investigations as well as engaging in discussions like this.”

You know who else’s quality of life is going to be affected? Everyone involved in the fossil fuel industry, if we switch to greener energy. You don’t think they’d like to shut down climate scientists’ claims of anthropogenic global warming? If RICO actions about climate science had been available a few decades ago, oil and coal companies would have used them to suppress research into global warming by labeling it a conspiracy to destroy the energy industry and hurt the U.S. economy.

About the potential for a “chilling effect,” Mr. Nye said, “That there is a chilling effect on scientists who are in extreme doubt about climate change, I think that is good.”

But it’s not just going to be people with “extreme doubt” (whatever that means) who experience chilling effects. It’s going to be every scientist with a theory that suggests global warming isn’t as bad as we think it is — every researcher who theorizes there’s a bias in the satellite record or a natural carbon sink that’s more effective than expected. When trying to decide whether to pursue the research, they’ll have to ask themselves if it’s worth the risk of severe legal problems, and they’ll have to line up advisors, assistants, partners, and funding agencies that are also willing to face the risk. Or they could play it safe and pick a different research topic.

That’s not how science is supposed to work. That’s not how debate over public policy is supposed to work in a democracy. Environmentalists had no trouble understanding this concept back when Virginia Attorney General Ken Cuccinelli was engaged in a bogus investigation of Michael Mann and the University of Virginia for supposedly manipulating data to prove global warming.

It’s not a question of who is right and who is wrong. It’s not even about who is lying and who is telling the truth. It’s about how we as a society are going to make decisions together. It’s far better that we talk things out and let everyone be heard than that we enlist attorneys general to imprison or impoverish those with whom we disagree. The best remedy for bad speech is good speech. Not a RICO prosecution.

Even Trump Has Freedom of Speech

I was disappointed that the Trump rally on Friday here in Chicago was cancelled. It’s not that I was planning to go, but it was disappointing the way it happened. And I’m disappointed that folks on the left are applauding it or taking credit for it.

To be sure, Trump brought it on himself. The aphorisms are plentiful: You reap what you sow. Live by the sword, die by the sword. What goes around, comes around. Trump applauded and even encouraged violence at his rallies. He set the rules of the contest, and now he’s complaining that his opponents are playing by them.

It’s actually kind of a law of nature: Trump’s embrace of violence unsurprisingly drives away the peaceful protesters, which leaves behind the kinds of protesters who aren’t afraid to mix it up, and probably even attracts protesters who look forward to busting some Trumpkin heads. So it’s not surprising that things eventually blew up. Trump and his supporters got the response that they created. Thugs begat thugs.

But…

Even Donald Trump has the right to free speech. I’m not talking about the legal First Amendment right, which doesn’t really apply to private action. I’m talking about the basic moral premise that underlies the First Amendment: Within some very broad limits, people have a right to say what they want. Whatever they want. Even if other people don’t like it. Even if they themselves have no respect for freedom of speech.

And perhaps even more important than Donald Trump’s right to speak is the right of other people to hear what he has to say. People who come to his rallies ought to be allowed to hear him speak, and the rest of us should respect that right. That doesn’t mean opponents can’t protest his speech. There’s a difference between speaking out against Trump and blocking Trump from speaking. When Donald Trump is speaking to cheering supporters and crowds of protesters are shouting in the streets and the police are keeping the peace rather than taking sides, that’s American free speech at, well…perhaps not at its finest, but certainly at its most exuberant.

On the other hand, if anyone violently attacked Trump supporters, I fully support arresting them for it. (And vice versa, of course.) Similarly, if protesters disrupt Trump’s speech, I have no problem with them being escorted from the premises. They have a right to speak, but they don’t have the right to prevent Trump from speaking in a forum assembled for that purpose, nor do they have the right to prevent others from hearing what he’s saying.

Granted, I’m not entirely convinced that anyone other than Donald Trump was responsible for shutting down the Donald Trump rally. At the time he called it off, there hadn’t been any injuries or arrests in Chicago. I think it’s possible he saw a chance to skip a rally and blame it on the opposition, and so he took it, and now he’s using it to play the victim card. But as Donald Trump might have said, I like Presidential candidates who don’t cancel their rallies. Who’s the pussy now, Donald?

Except…

When the cancellation of the rally was announced, the only proper response from any protest organizers who really respect free speech should have been either (1) an apology for letting things get out of hand, (2) criticism of the rally organizers for not providing enough security for Trump to feel safe, or (3) calling Trump out for cancelling his own rally and blaming it on the free speech of others. Depending on what you believe caused the rally to be cancelled, any one of these might be appropriate.

Some of the protesting organizations, however, are taking credit for stopping Trump from speaking. That’s nothing to be proud of. Even if he quit for reasons of his own, claiming credit shows they have little respect for free speech. And if they actually did shut him down from fear of violence, that’s even worse.

In our open society, the remedy for bad speech is supposed to be good speech, not violence. Trump doesn’t understand that. “Freedom of speech” is just a buzz phrase he uses when he senses it might help him. The rest of us should try to be better than that.

Censorious Thugs Detected In the Holodeck!

Rapper Chief Keef was originally scheduled to perform at the Red Moon Theater in Chicago at a benefit for the family of Dillan Harris, a 13-month-old baby killed in a car accident. However, Mayor Rahm Emanuel’s office put pressure on the venue to cancel the concert,

The city called Red Moon and requested they not host the concert, calling Chief Keef “an unacceptable role model” who “promotes violence.”

Apparently Mayor Emanuel is acting as the arbiter of acceptable musical performances in Chicago. So if you’re planning to have gangsta rappers or outlaw country singers at your event, be sure to run them past the Mayor’s office first to make sure they are morally pure. Also, I assume performances of Threepenny Opera are now forbidden, because Mack the Knife is a bad role model for the children.

Chief Keef’s performance was rescheduled to be at the Craze Fest concert festival in nearby Hammond, Indiana, but Hammond Mayor Thomas M. McDermott Jr. reached out to shut that down as well:

“I know nothing about Chief Keef,” Mayor McDermott, 46, said. “All I’d heard was he has a lot of songs about gangs and shooting people — a history that’s anti-cop, pro-gang and pro-drug use. He’s been basically outlawed in Chicago, and we’re not going to let you circumvent Mayor Emanuel by going next door.”

First of all, circumventing Illinois by going next door is kind of northwestern Indiana’s value proposition: Drive toward Indiana on I-80 and you’ll see a dozen billboards for fireworks stores and strip clubs.

In any case, the argument for kicking Chief Keef out of Craze Fest comes with a bit more of a rationalization:

All of the Craze Fest acts — which included Riff Raff, Lil Bibby and Tink — had been previously vetted because the event was held at a public park…

That sounds at least superficially reasonable, except that when public space is involved, I’m pretty sure the authorities aren’t supposed to discriminate against the views expressed. Just because newspaper vending machines are placed on public sidewalks doesn’t mean government authorities can control what stories are printed. They shouldn’t be allowed to control the content of musical performances either.

There’s one more thing, and if you haven’t spoiled it by reading the links, it will blow your mind: Chief Keef apparently has outstanding warrants in Illinois (for a missed DUI hearing and child support), so he was never planning to come here anyway. Instead, he was going to appear by hologram, which is apparently a thing we can do here in the future.

So what this boils down to is that, except for a difference in display technology, the mayors of Chicago and Hammond now think it is their business to tell event producers what they can have on television. Logically, it’s no different than them putting pressure on movie theaters to not show Roman Polanski movies. Even if they have a valid point — that watching Polanski movies or Chief Keef concerts is repugnant — they have no business using the power of public office to force their cultural tastes on others or to prevent others from exercising their own cultural tastes.

I don’t know anything about Chief Keef, but Mayor Emanuel is right that there are bad role models involved: He and Mayor McDermott are censorious thugs.

Update: First Amendment expert Eugene Volokh weighs in:

Unless I’m missing something here, then, this is a pretty clear First Amendment violation on the part of the City of Hammond. And it seems to me that, in America, performances by controversial singers can’t be “basically outlawed,” even “in Chicago.”

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