Free Speech

Rick Horowitz has an interesting post about his decision not to display any Charlie Hebdo cartoons in his post about the Charlie Hebdo massacre. Er, in other words, his post about the Charlie Hebdo massacre consisted of an explanation of why he wasn’t posting Charlie Hebdo cartoons in his post about the Charlie Hebdo massacre. (Did you follow that? It was all very self-referential. Anyway…) I thought about that myself when I wrote my own post about the Charlie Hebdo attack, and I decided to include just a single image.

I had thought about a similar issue a few years ago, when writing about threats against the Danish newspaper Jyllands-Posten which had published cartoon images of the prophet Mohammed. In that case, I didn’t see a reason to include any of the images under discussion. As my regular readers are no doubt painfully aware, Windypundit is mostly just a lot of words. I don’t normally include images unless I have to. So the way I saw it, there were only two reasons for including the images in a post: (1) News value, and (2) saying “Fuck you” to assholes.

I have no objections to saying “Fuck you” to assholes, but posting offensive images risks saying “Fuck you” to the wrong people. If a racist politician used the N-word in a speech, and some kind of black militant group assassinated him for it, I see no problem with telling them to go fuck themselves, but I wouldn’t use the N-word to do it. I may want to say “Fuck you for being a terrorist,” but the N-word says “Fuck you for being black.” It’s the wrong message in so many ways.

The same is true for the offensive images of Mohammed. Instead of saying “Fuck you for being a terrorist,” I might inadvertently be saying “Fuck you for being a Muslim,” which is not at all the message I want to send. So when writing about the Jyllands-Posten images, I decided not to use the images to say “Fuck you”.

The Charlie Hebdo images were slightly more complicated because I didn’t even know how to tell if they’re offensive. Translating from the French is the least of the problems. Things like racist epithets and stereotypes are culturally defined in a complicated way, and I wouldn’t have a clue what constitutes anti-Arabic or anti-Muslim material in French culture. The cartoons are not drawn realistically, but I can’t tell which oddities are considered racists stereotypes and which are just the Charlie Hebdo style. Some people say the cartoons are racist and others say they’re just over-the-top satire, and I don’t know who to believe. It’s a messy situation.

It is for this reason that I reluctantly did not sign on to Marc Randazza’s “We are Charlie Hebdo” post. I understand what he’s doing — Randazza is a Kung-Fu master of “Fuck you” — but I felt that by signing onto the post I would in effect be signing onto the messages in the Charlie Hebdo cartoons, and I don’t even know what those messages are.

I realize not everyone who publishes the images (or signs on to Randazza’s post) feels they are endorsing the content of the cartoons, but that’s how it felt to me.

The other reason for including the offensive images would be if they have legitimate news value. When writing about the Jyllands-Posten images, I thought the actual images were marginally relevant, but there’s no point in embedding a dozen images in a post when I would normally just link to them. Embedding the images would be gratuitous, and therefore just a “Fuck you,” about which please see the previous few paragraphs.

Pretty much the same line of thinking applied to the Charlie Hebdo images, except that the slant of my post was that the people making the images were pretty bold in the face of censorship and violent opposition. In particular, I thought it took big brass balls to publish this image right after their offices were firebombed:

Love Is Stronger Than Hate

That’s got to be a giant “Fuck you” to the (presumably) homophobic religious nutcases that would firebomb a magazine because they didn’t like the cartoons, and I felt you really have to see the image to understand the magnitude of the message. That’s why I included it in the post. (And of course you need to see the image in this post to understand why I felt that way.)

I have to admit that posting that image also allowed me to issue my own small “Fuck you” to the terrorists in a way that I hope wouldn’t unintentionally offend anyone who doesn’t have it coming. Also, I hope it will be enough to get me past the inevitable gormless trolls who insist that anyone who doesn’t publish the images is a coward.

Je ne suis pas Charlie

I am not Charlie.

Honestly, until this shit happened, I didn’t know a damned thing about Charlie Hebdo. I don’t have a clue what Charlie Hebdo stood for, so I’m not about to identify myself with them or support their editorial agenda, whatever it is.

Besides, in my mind, “I am Charlie” links to the scene in the 1960 film Spartacus where rebellious former Roman slaves refuse to identify their leader Spartacus by all claiming “I am Spartacus!” thus consigning themselves to be crucified alongside him. That’s real dedication to a cause. And as Matt Welch points out, Charlie Hebdo was run by badasses. Their own government went after them for offensive speech and they fought back and won. Muslim extremists firebombed their offices, and six days later they responded with this:

Love Is Stronger Than Hate

(“Love is stronger than hate.”)

By comparison, I’m publishing this blog from the middle of the United States of America which is still — despite all the problems detailed here on a regular basis — a bastion of free speech. The worst that’s ever happened to me for something I wrote is that people left nasty messages in the comments or said mean things about me on their blog. The worst that’s ever likely to happen to me is that I have to find another job because my employer doesn’t like something I wrote. If someone shoots me, it’s more likely to be my wife than terrorists.

Look, whatever Charlie Hebdo stands for — I don’t know or care what it is — I stand by their right to believe it and say it and publish it. It’s insane to kill someone for drawing comics and saying mean things. The gunmen who shot the Charlie Hebdo writers and artists are a bunch of terrorist assholes, and I want them all to die in a fire.

But my saying so doesn’t get me any points for bravery. I’ve got it easy. I realize that many of the people posting “I am Charlie” don’t mean it this way, so this is not a knock on them, but to me “I am Charlie” feels like trying to portray myself as having courage on a level that is simply not required for what I do. My world is not that dangerous. I am not Charlie.

I’ve known for many years that access to this blog is blocked in mainland China. Well, sometimes it is and sometimes it isn’t. I imagine it all depends on how recently I’ve mentioned the Tiananmen Square Massacre. As I write this, it’s not being blocked (I checked here), but that could change since I just mentioned the Tiananmen Square Massacre twice now.

However, thanks to the London-based Open Rights Group (which I stumbled upon in the sidebar on Charlie Stross’s blog), I’ve discovered that my blog is now banned by some of the ISP content filtering recommended by the U.K. government.

You may remember hearing that the UK had pressured ISPs into blocking pornography in their default settings. (People who wanted to receive it could remove the block.) But the blocking also included other categories such as malware, drugs, gambling, suicide, weapons and violence, obscenity, hate, cyberbullying, and hacking. This site is not particularly about any of those things, but I do discuss them in the context of analyzing public policy, and like most automated filtering, it blocks a lot of stuff that it shouldn’t.

I checked around on my blogroll, and surprisingly few of them are blocked. Scott‘s not, and neither is Popehat, despite their extensive discussion of criminality. Even Pete Guither’s Drug WarRant isn’t blocked, and all he talks about is drugs. On the other hand, Maggie McNeill‘s site about sex work is blocked kind of a lot, and anthropologist Laura Agustín‘s site about migrant sex work is blocked a little. It sounds like the Brits are threatened by the sexiness.

Or maybe I just say “fuck” too often.

You can check your site here.

(Title allusion here.)

Over at Addicting Info (a.k.a. Buzzfeed for liberal politics) Justin Rosario is trying to portray the Supreme Court’s recent decision striking down so-called “buffer zones” around abortion clinics as a case of giving special free-speech rights to rich people:

It seems that while your regular woman on the street has no way to keep religious fanatics from harassing them while they seek 100% legal healthcare, the rich can hire security to keep you and your petty complaints at arm’s length. So because they’re rich they get special rights. Again. What a shocker!

Uhm, I’m pretty sure that private bodyguards aren’t allowed to close off parts of the public sidewalks for their rich clients. More likely, they conduct their affairs on private property that’s big enough to keep the rabble away.

I pointed out that during the Occupy Wall Street protests, we were not allowed to actually march on Wall Street. We were diverted around it. This should have been 100% illegal but, of course, you can’t have the rabble pestering the masters of the universe as they rake in billions from an economy they destroyed.

Yeah, that wasn’t private security keeping you off Wall Street. That was the New York Police Department. (That police departments often function as private security for the rich and powerful is a different problem.)

However, Rosario sort of touches on something I’ve been wondering about ever since the court handed down the decision: If free speech means that anybody on a public sidewalk has the right to talk to anybody else that’s there, and if this includes the right to approach close enough to have a conversation, then shouldn’t this mean the end of “free speech zones”?

Whenever there’s a World Trade Organization meeting or a political convention or a controversial college guest lecturer, police like to set up these so-called “free speech zones” for protesters, usually far enough away that the people they’re protesting against can’t hear or see them. But if you can’t keep people from protesting outside an abortion clinic, how can you keep them away from a convention hall?

At the very liberal Addicting Info website, Justin Acuff is upset that politicians might be lying, and he wants the government to do something about it:

There’s a first amendment case going in front of the Supreme Court right now that’s very, very dangerous. Why? Because it might allow religious opinion to become legal fact, corrupting the intent of our constitutional rights, if not the specific wording.

Actually, Acuff is concerned the Supreme court might overthrow the ability of election commissions to control speech about politicians:

The Susan B. Anthony List (SBA List), an anti-choice and anti-family planning group, is suing because they believe they have a right to publicly advertise lies if they have sufficient reason to hold the advertised opinion. Paradoxical, yes, but if you’re familiar with American culture, you’ll completely understand. Cognitive dissonance and bold denial in the face of proof are defining characteristics.

The specific issue at hand is the 2010 campaign of Democratic former Rep. Steve Driehaus, a pro-life moderate in Ohio. Because he was running in Ohio, Ohio’s “false statements” law applied. Many states have an equivalent law. The idea is that stopping political ads from outright lying might be a reasonable restriction of free speech, in order to protect our democratic process. Probably a good plan, and not just for elections — after all, an appellate court has previously ruled that media sources, such as Fox News (the specific agency in the case), have the right to lie.

Granted, it’s bad that politicians lie. But you know what’s worse than allowing politicians to lie? Allowing politicians to decide what people are allowed to say about politicians. Ohio’s law against false statements in a political campaign is enforced by the the Ohio Elections Commission, which is a politically appointed body, that has been used to press “false statement” charges against political candidates attacking incumbents and against people protesting Tax Increment Funding. Are we really supposed to believe they’re going to keep mainstream politicians honest? Or are they just another way to keep small players out of the field of politics?

The SBA List was upset they weren’t allowed to advertise things that weren’t true. After all, Driehaus supported Obama’s healthcare agenda, and they didn’t. So, they wanted to put up a bunch of billboards and use radio ads to blast Driehaus, a self-proclaimed pro-life candidate, as supporting a program that includes taxpayer-funded abortions. Except…the ACA, Obamacare, does not fund abortions. It’s actually illegal for the federal government to fund abortion. Instead, the ACA has private insurers offering abortion coverage under unique rules.

And as he just demonstrated, this is easy enough to explain to anyone who was fooled by the lies and who wants to learn the truth. You don’t need a special truth commission to rule on it.

Facts matter. Especially when it comes to democratically electing leaders. Without an educated, informed populace, there can be no progress in democracy.

Of course fact matter. And if SBA List is misrepresenting the facts about the way abortion is treated under the Affordable Care Act, it’s important to correct them, and it’s important to point out that they are a bunch of liars who can’t be trusted. But there’s a world of difference between responding to political opponents by calling out their lies and responding to political opponents by suppressing their speech.

It’s not like these kinds are laws are going to be used evenly across the board. During the long course of a political campaign, a lot of people will say a lot of things, and some of those things will be wrong. And despite the supposed goal of getting the lies out of politics, there aren’t enough investigators on the Ohio Election Commission to investigate every lie that is told during an election season.

That means that the commission will have to engage in selective enforcement, picking and choosing among all the lies to decide who they want to go after. Does anybody think that choice won’t be influenced by politics? My guess is that lies told by (or on behalf of) influential mainstream candidates will go unchallenged, because the political hacks on the election commission wouldn’t want to anger anyone who could hurt their chances of collecting a nice state pension. On the other hand, the commissioners will have nothing to lose by nitpicking fringe candidates and small special interest groups that are a thorn in the sides of candidates from both parties.

And let me point out something that every power-mad would-be censor seems to ignore: You may have the power now, but someday it will be your enemies who are in control of the power. Today the commission might be targeting a right-wing pro-life group, but tomorrow a different commission could be controlled by the other side, and it could be some left-wing cause that’s in the crosshairs. For example, I’ve heard a lot of gun control advocates say things that just aren’t true: They get confused about firearms technology, they misstate the current firearms laws, they use incorrect statistics, they make unsupported claims about things the NRA does, and they mischaracterize pro-gun arguments. Will the people demanding the SBA List be silenced have the same hardball attitude about “false statements” when a Republican-controlled election commission goes after a grassroots gun control group and runs them out of business with legal expenses?

I’m not defending the SBA List or the lies they are tell. But giving politicians the power to control political speech during an election is not something that’s good for democracy.

Thane Rosenbaum has an opinion piece at the Daily Beast arguing that we should suppress the rights of Neo-Nazis and others to spout “hate speech.” That’s a common and well-meaning proposition, however misguided, but his reasoning for why we should have these laws is dangerously overbroad.

Let me start, however, by pointing out that the Nazis themselves were no fan of free speech, which puts Thane Rosenbaum squarely in the Nazi camp himself. In fact, his post violates a new Israeli law he describes with some approval:

Meanwhile, Israel’s parliament is soon to pass a bill outlawing the word Nazi for non-educational purposes.

Maybe if he gets his new speech police, their first job will be taking a closer look at his potential pro-Nazi leanings…

Nah. Not really. I don’t actually believe for even a moment that Thane Rosenbaum harbors Neo-Nazi tendencies. I’m just trying to make the point that when you pass a law, you have to give someone the power to make the decisions about who to use it against, and you could find yourself in handcuffs if they don’t share your vision of who the bad guys are. This is a recurring problem with most laws against bad speech.

For example, if these kinds of hate speech laws had been in place in the years before World War II, when Hitler’s Germany was seen by many as a bulwark against Bolshevik Communism, you might have been investigated and prosecuted for speaking out against the Nazis. (As it was, agents of Hoover’s FBI at the time considered anti-Nazi statements to be evidence of pro-communist leanings.) So if Rosenbaum ever gets his “hate speech” laws passed, he better hope no one in charge is ever offended by anything he wrote.

Then there’s his use a certain tired legal-sounding argument:

Yet, even in the United States, free speech is not unlimited. Certain proscribed categories have always existed—libel, slander and defamation, obscenity, “fighting words,” and the “incitement of imminent lawlessness”—where the First Amendment does not protect the speaker, where the right to speak is curtailed for reasons of general welfare and public safety. There is no freedom to shout “fire” in a crowded theater.

There sure as hell is. You can (and should) shout “Fire!” if the theater is on fire. Or if it’s a theatrical theater instead of a movie theater, the performers can certainly shout “Fire!” if it’s part of the play. The original quote that Rosenbaum is referencing is from a Supreme Court decision on Schenck vs. United States written by Oliver Wendell Holmes: “The most stringent protection would not protect a man in falsely shouting fire in a theater and causing a panic.”

Note the parts about “falsely” and about “causing a panic.” The scenario Holmes describes is about making false statements of fact (not just opinion) in a situation where people would not have time to give it due consideration and debate (because the theater might be on fire) which causes actual harm (by causing a panic). This is a far cry from “hate speech” which might possibly influence someone to make the decision at some point in the future to do something wrong.

(Holmes himself did not see these distinctions, and upheld restrictions on speech in Schenck, but they were soon wiped out by later decisions, including some by Holmes himself. Ken White tells the whole story.)

As I said earlier, however, Rosenbaum’s argument really goes off the rails when he explains the reason he wants speech-restricting laws:

Yet, the confusion is that in placing limits on speech we privilege physical over emotional harm. Indeed, we have an entire legal system, and an attitude toward speech, that takes its cue from a nursery rhyme: “Stick and stones can break my bones but names can never hurt me.”

All of us know, however, and despite what we tell our children, names do, indeed, hurt. And recent studies in universities such as Purdue, UCLA, Michigan, Toronto, Arizona, Maryland, and Macquarie University in New South Wales, show, among other things, through brain scans and controlled studies with participants who were subjected to both physical and emotional pain, that emotional harm is equal in intensity to that experienced by the body, and is even more long-lasting and traumatic. Physical pain subsides; emotional pain, when recalled, is relived.

Pain has a shared circuitry in the human brain, and it makes no distinction between being hit in the face and losing face (or having a broken heart) as a result of bereavement, betrayal, social exclusion and grave insult. Emotional distress can, in fact, make the body sick. Indeed, research has shown that pain relief medication can work equally well for both physical and emotional injury.

He doesn’t link to these studies, so I don’t know how to evaluate them, but this seems plausible (especially if the pain relief medication he speaks of is an opium derivative).

We impose speed limits on driving and regulate food and drugs because we know that the costs of not doing so can lead to accidents and harm. Why should speech be exempt from public welfare concerns when its social costs can be even more injurious?

In other words, he’s advocating laws against hate speech as part of a larger policy of laws against causing emotional harm in general. This strikes me as a horribly bad idea.

For one thing, I can’t imagine how you’d establish emotional pain outside of a laboratory setting. Sticks and stones leave bruises and broken bones, which are clear and objective signs of injury. Both common sense and medical science tell us there will be pain and suffering. Calling someone bad names, though…that’s a lot harder to prove. Broken bones always hurt. Bad words are more subjective.

For example, I was in high school when serial killer John Wayne Gacy was arrested for raping and killing 33 young men and boys here in Chicago, and a kid named Harry (I think) decided to make fun of me because he thought I looked a bit like Gacy. Whenever I’d run into him or pass him in the hall, he’d call out “Gacy!” at me. (He wasn’t very inventive.) This was arguably a pretty hateful thing to do, and at the time, a friend who’d observed Harry’s harassment asked me why I let him get away with it.

I was completely surprised by his question, because until he asked, it had simply never occurred to me that I should care what Harry said. Obviously, my friend had strongly different feelings about it. And that raises the question of whether Harry’s speech comparing me to one of America’s most monstrous serial killers would be some sort of crime under the emotional harm statutes envisioned by Rosenbaum.

Since I suffered no emotional harm, then maybe not. But what if Harry had been picking on my friend instead, who clearly felt it was much more demeaning? It’s a strange and confusing way to define a crime when it depends on how the victims feel about it. It’s also rife for abuse by people who are good at faking their feelings, such as sociopaths. Pass this sort of law, and someone will figure out a way to harass people or make money by filing wholesale accusations about hurt feelings.

(Intent is important as well, and can be difficult to judge. For example, misunderstandings have arisen because foreigners visiting America don’t realize that young black boys will get offended if you address them as “boy.” And if the young black man responds with angry words, is he being insensitive to the foreigner’s culture? So which one should we arrest for causing emotional harm? The one who feels most hurt? The black guy as usual? It could go either way, and neither one is good.)

In the marketplace of ideas, there is a difference between trying to persuade and trying to injure. One can object to gays in the military without ruining the one moment a father has to bury his son; neo-Nazis can long for the Third Reich without re-traumatizing Hitler’s victims; one can oppose Affirmative Action without burning a cross on an African-American’s lawn.

That’s where Rosenbaum’s argument breaks down completely. In the paragraph above, Rosenbaum is picking sides and dismissing the feelings of people he disagrees with. He speaks of people who “object to gays in the military” as if they had some antiseptic policy concerns. But the people who object to gays in the military, or gay teachers, or gay Boy Scouts, or gay marriage, or gay anything, do so because they are genuinely upset by homosexuality.

I know of no reason to think anti-gay people are faking when they claim to be disgusted by gay sex. I’m sure they find it genuinely disturbing. I’ll bet the discomfort they experience from seeing two men kissing — or even just from knowing that people somewhere are having man-on-man oral and anal sex — would be measurable on those brain scans Rosenbaum mentioned.

To pick one example, if we’re going to make it a crime to cause emotional distress, then shouldn’t gay “kiss-ins” — gay couples visiting non-gay bars or restaurants in large groups and then all starting to make out at the same time — be a hate crime? After all, they do it with the explicit intention of freaking out anti-gay bigots.

While we’re at it, I’m pretty sure that opponents of inter-racial sex and marriage also experienced genuine emotional harm from miscegenation. Just seeing a young white women in the company of a black man must have been very upsetting to all the good white folk. You can pick almost any controversial social trend — women wearing pants, men with long hair, women drinking in bars, birth control and casual sex — and you can find some people who were very upset about it. Should they all have the power of laws against emotional harm to suppress the things that upset them?

I suppose supporters of emotional harm laws could counter that my examples are silly: That’s not the kind of emotional harm they’re talking about, and no one is going to use those laws to arrest anybody for those kinds of things. But that’s because I wanted to illustrate the absurdity of such laws, so I chose examples of social conflicts which have already been won: Blacks and whites can get married, women can get birth control, gay sex is legal.

But there was a time in this country when the majority of people (or at least the majority of people with political power) thought all of those things were wrong, and they probably would have been illegal under Thane Rosenbaum’s envisioned system for punishing people who caused emotional harm. (In fact, many of them were illegal even without his laws.)

Let me put it this way: If laws against emotional harm had existed in 1950 and police were called because two gay men were caught making out in an alley behind a bar and a group of onlookers were yelling anti-gay slurs at them…who do you think would get arrested? Or if a bunch of gay-rights advocates were protesting a group of preachers who were denouncing sodomites, who do you think would would be accused of causing emotional harm? If a black civil rights group denounced a leader of industry as a racist, and he claimed emotional harm from that, who do you think the police would be more likely to arrest?

There’s plenty of historical evidence. The black Americans who lead the civil rights movement were denounced as agitators, traitors, and communists, all because they demanded rights that are nowadays considered uncontroversial. The first women to complain about sexual harassment were denounced as man-hating troublemakers. More recently, gays who want to get married have been denounced for harming straight marriage.

Obviously, some people say hateful things because they are intentionally trying to hurt other people, but an awful lot of people say these things because they really believe them. Just because someone is an anti-gay, -black, -women, -Jew, -gay bigot doesn’t mean their feelings aren’t genuinely hurt when someone denounces them for it, often because they just can’t see what they’re doing wrong. For example, in recent years, the traditionally male-dominated subcultures of atheism and computer gaming have gone through several flare-ups in which women complained of sexism and were in turn accused of being oversensitive and mean. If those communities had adopted Rosenbaum’s rules against emotional harm, do you think they would have been used against the men accused of sexism or the women who dared to accuse them?

Actually, the United States is an outlier among democracies in granting such generous free speech guarantees. Six European countries, along with Brazil, prohibit the use of Nazi symbols and flags. Many more countries have outlawed Holocaust denial. Indeed, even encouraging racial discrimination in France is a crime. In pluralistic nations like these with clashing cultures and historical tragedies not shared by all, mutual respect and civility helps keep the peace and avoids unnecessary mental trauma.

I mean no disrespect to my lawyer readers when I say that the goals of “mutual respect and civility” will probably not be helped by making it easier for people involved in emotional disputes to file lawsuits or criminal charges.

Consider the current ongoing fight between lesbians, feminists, and trans women over competing definitions of who belongs to the right tribe. It’s ugly and it’s mean and lots of people’s feelings are hurt. As a privileged heterosexual cis male, I have only the vaguest idea what the issues are and no sense at all of the feelings in play. But if it was against the law to hurt people’s feelings, some judge — probably a hetero cis male like me — would be expected to figure it out and punish the malefactors. Does anybody really believe such a clueless intervention would make things more civil?

Free speech should not stand in the way of common decency. No right should be so freely and recklessly exercised that it becomes an impediment to civil society, making it so that others are made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon.

Laws against causing emotional harm will only protect those who are in the majority or those minorities who are easy to sympathize with, or who have gained political power. Powerless minorities, as always, would be ignored, or would themselves be accused of causing emotional harm when they protested their treatment. Abridging free speech will cause more discord than it will prevent. Free speech is not an impediment to civil society, it is the mechanism through which civilized societies resolve their internal differences.

“…I think Ima shoot up a kindergarten and watch the blood of the innocent rain down and eat the beating heart of one of them. lol. jk.”

— Justin Carter, on Facebook, March 2013.

Because today, August 1, is Quote Justin Carter On Social Media Day, as promoted by Jack Marshall on Ethics Alarms.

According to Ken White, sometime last March, Justin Carter got into an argument about the game League of Legends with some friends on Facebook. In the course of the argument, one of them implied he was crazy, and Justin responded with the quote above. Shortly thereafter, police in Austin, Texas arrested him on charges of making “terroristic threats.” His bail was set at an astounding $500,000, and he was held in jail for about five months until some anonymous person bailed him out.

While I’m feeling all rebellious for quoting a comment that got someone thrown in jail, I’d also like to say a big “Fuck You!” to Comal County Criminal District Attorney Jennifer Tharp, who’s responsible for this mess.

Personal note to DA Tharp: Since you seem to have trouble discerning context or understanding hyperbole, I just want to make it clear that I am a married man, and my telling you “Fuck you!” is in no sense an offer of a sexual liaison. It’s just my somewhat figurative way of using common vernacular slang to express my opinion that you are a terrible human being.

[WARNING: This post is part of an April Fools Day prank. The Arizona bill is real, but the bill by Senator Lieberman is completely fictional. Eric Turkewitz was the ring leader for this event, and he has the wrap-up. The short version is that no one bit who should have known better.]

This weekend we’re seeing a one-two-punch against freedom of speech — at least as it exists on the internet — one from Arizona, the other from the U.S. Senate.

You may have heard of the first punch, in the form of a stupid law that I can only guess is an overreaction to the “bullying” panic. The Media Coalition offers this description of Arizona House Bill 2549:

Arizona House Bill 2549 would update the state’s telephone harassment law to apply to the Internet and other electronic communications. It would make it a crime to communicate via electronic means speech that is intended to “annoy,” “offend,” “harass” or “terrify,” as well as certain sexual speech.  However, because the bill is not limited to one-to-one communications, H.B. 2549 would apply to the Internet as a whole, thus criminalizing all manner of writing, cartoons, and other protected material the state finds offensive or annoying.

The Media Coalition explains what’s wrong with this in their letter to Arizona Governor Janice Brewer:

Government may criminalize speech that rises to the level of harassment and many states have laws that do so, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.

In other words, this law would enact broad censorship of the press, and precisely because its result is so blatantly unconsitutional, I’m not too worried about it, even if it spreads outside of Arizona.

The second punch comes at the federal level, from reliable internet panic-monger Senator Joe Lieberman.

I know a lot of blogs attract crazy people, but I don’t get too many of them here. I was reminded of this recently when I got a comment on this post about Julian Assange blaming me for the decline of journalism since Walter Cronkite died (or something). Perhaps the most dangerous sounding was “Albatross,” who stopped by to defend writing about his fantasy of killing one of my former co-bloggers, and even he wasn’t as crazy as that short summary makes him sound. I’d like to think the relative lack of crazy is because all of you regular readers are so goddamned intelligent and level headed, but I suspect it has more to do with the fact that there just aren’t very many of you.

But even if the craziness in the comments got much, much worse, I don’t have to spend too much time worrying about it, largely due to Section 230 of the Communications Decency Act, which makes it clear that web sites that accept content from third parties are not considered publishers of that content, and are therefore not legally responsible for it. Essentially, comments I receive are not editorial content of this blog; they’re more like sheets of paper pinned to the billboard at a neighborhood community center.

All that could change if Senator Lieberman gets his way with a stupid new bill he’s just proposed. The bill changes Section 230 to essentially strip away the protection against third-party content, making every blogger responsible for what commenters post. This will kill or cripple the lively comment areas of many blogs.

Even worse, remember that in many cases the blogs themselves are third-party content on someone else’s site, such as blogs hosted by Live Journal, Blogger, or WordPress. (The Huffington Post media empire itself would never have gotten off the ground if this law had been passed a few years ago.) There’s no way those companies could afford to police the millions of blogs for which they would now be liable, and I suspect most of them would go out of business. Even my own humble blog might go under, since the company I pay to host it might somehow become liable for its content.

The Arizona law seems blatantly unconstitutional, but I’m not sure to what extent something as technical as the status of third-party content is constrained by the Bill of Rights, especially since 1st Amendment lawyer Brian Cuban seems concerned:

One may look at this and think, “good riddance to sites like the Dirty” but free speech for one is free speech for all, even commentary we find offense.  If this amendment passes, we are all stripped naked in our ability to engage in the honest and blunt discourse that anonymous commenting protects. It  puts an unbearable burden on not only the sites we might not like but the sites that encourage legitimate discourse. All consumer rating sites would disappear practically overnight.

Hat-tip to Florida criminal defense Lawyer Brian Tannebaum, who takes a Voltaire-esque stand:

I’m not a fan of the sewage that is most anonymous comments. In my little part of the blogging world they come from lawyers, lawyers parading as cowards – afraid to express their thoughts unless protected by anonynimity. But I certainly don’t support federal legislation controlling the sewage.

Strangely, Mark Bennet thinks it might be a good idea:

Obviously, making it possible for web hosts to be held responsible for the conduct can’t help but raise the tone. Letting people who have been libeled online seek justice from those who allow the comments rather than chasing anonymous ghosts will essentially bring much-needed grown-up (but — and this is the key — nongovernmental) supervision to the Internet, raising barriers to entry and therefore the quality and utility of the discussion.

I think the Other Mark is forgetting that he doesn’t own the servers his blog is hosting on, and if this stupid bill passes, he might get an ugly surprise when his hosting company decides they don’t have the time to research the facts behind some of the potentially libelous things he writes.

First Amendment Badass (and restauranteur) Marc Randazza confirms my interpretation and, naturally, stands strong, so I’ll let him have the last word, in his inimitable style:

Although Lieberman is touting this amendment as an anti-terrorist effort, this action will have a chilling effect on all forms of Internet speech. Service providers from Comcast to Consumerist may now be treated as publishers to content posted to their websites. This opens up the possibility that review sites and others that rely on third parties for content will be held responsible for those very same deranged, sub-literate contributions. Lieberman’s proposed amendment will have a chilling effect on free speech, as any site that does not want to drown in legal bills likely won’t accept anonymous comments.  If you’re a sissy with paper-thin skin or an obsession with “bullying,” rejoice, I suppose.

Needless to say, inhibiting anonymous speech is an attack on this right in gross.  It will be a grave day if this amendment succeeds.  Although anonymous speech on the Internet is not always the most intelligent, it still has its place in public discourse — for me to poop on.  Civil liberties should not be victims in the attempt to curb terrorism, yet we have already succumbed to the Scylla and Charybdis of the TSA and NSA in entrusting our rights to the benevolent government.  At this point, what’s one more right ceded to the security theater’s alphabet soup?

Eternal vigilance, folks. Enternal vigilance.

This is a great explanation of how and why the Stop Online Piracy Act (H.R.3261) is going to do a lot of damage to the Internet:

And this is what you can do about it. Make waves. Talk to people. Tell your congresscritters to vote against it.

If you want to know more, you can read more about SOPA at Wikipedia, you can see its progress at GovTrack, and you can find out more about your representatives at places like Project Vote Smart and OpenSecrets.

Apparently, Professor James Miller at the University of Wisconsin (Stout campus) is a Firefly fan, because he had on his office door a poster of Nathan Fillion as Captain Mal Reynolds, with the quote “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.”

That sentiment so enraged the morons in the campus police department that they ripped down the poster. and Chief Lisa Walter sent Miller a nastygram:

Dr. Miller,

I wanted to notify you that I removed a printed/copy (pictures attached) of a poster from the outside of your office. I don’t know if you posted it or if someone else placed it on your board, but it is unacceptable to have postings such as this that refer to killing.

I knocked on your office door while there, but it appeared as though you were not in your office at the time.  Contact me if you have any questions.

Respectfully,

Chief Walter

When someone complains about something because it “refers to” a killing or “refers to” drug use or “refers to” some actual conduct, it’s almost always a sign that they are censorious bastards trying to stretch a loophole to cover something they don’t like.

Miller’s reply was short and to the point:

Unacceptable to whom?

How dare you act in a fascistic manner and then sign your email “respectfully!” Respect liberty and respect my first amendment rights.

Walter, who hasn’t learned that you don’t have to respond to everything people say to you, responded thus:

I appreciate and understand the First Amendment, but also understand my responsibilities as the Chief of Police at UW Stout regarding postings that refer to violence and/or harm.

There’s that stretchy “refer to” again.

My actions are appropriate and defensible. Speech can be limited on a reasonable expectation that it will cause a material and/or substantial disruption of school activities and/or be constituted as a threat. We were notified of the existence of the posting, reviewed it and believe that the wording on the poster can be interpreted as a threat by others and/or could cause those that view it to believe that you are willing/able to carry out actions similar to what is listed.  This posting can cause others to fear for their safety, thus it was removed.

I am willing to schedule a meeting with you to discuss this further, if you wish.  If you choose to repost the article or something similar to it, it will be removed and you could face charges of disorderly conduct.

As Professor Miller points out, this is insane: 

Postings that “refer” to violence constitute a threat? As in a poster from Hamlet? Or a news clipping about Hockey players that commit violent murder?

Don’t threaten me with charges that have no basis in reality–I am a committed pacifist and a devotee of non-violence, and I don’t appreciate card carrying members of the NRA who are wearing side arms and truncheons lecturing me about violence.

Exactly right. Police officers have no business complaining that words on a poster can cause people to fear for their safety. Not when they’re carrying weapons.

Miller responded with another poster on his door, this one showing a diagram of a cop beating someone down, with the text “Warning: Fascism. Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.”

On the one hand, calling this incident Fascism is a bit over-blown. This is just a run-of-the-mill case of an overbearing bureaucrat abusing her power for her own self-aggrandizement. On the other hand, Chief Lisa Walter certainly seems to be trying to live up to Professor Miller’s expectations with her response to the new poster:

Dr. Miller,

My office removed another posting from the outside of your office. The posting depicts violence and mentions violence and death. The campuses threat assessment team met yesterday and conferred with UW System Office of General Counsel and made the decision that this posting should be removed. It is believed that this posting also has a reasonable expectation that it will cause a material and/or substantial disruption of school activities and/or be constituted as a threat.

Got that? A college Professor puts up a poster showing police beating someone and the police tear it down because it depicts violence. It doesn’t get much more blatant than that.

This part gets me: “The campuses threat assessment team…made the decision that this posting should be removed.”

As it happens, I know a little bit about threat assessment. A very little bit. As in, I’ve read a few books on the subject. That’s it. I am far from an expert. And yet I’m pretty sure I know more about distinguishing actual threats than the entire University of Wisconsin (Stout campus) threat assessment team.

The materials in question — one from a popular television series and the other an anti-fascism message — simply aren’t indicative of any kind of threat. They lack specificity, especially as to the target of the threat, and they therefore lack the intimacy that makes it likely the threat will result in action. Miller’s responses to the chief are hardly enraged or indicative of unstable emotions. I suppose his references to Fascism could indicate a paranoid over-reaction, although the chief did threaten to have him arrested for a poster. And technically a fascination with violent entertainment is an indicator, although I don’t think ordinary American television counts.

In fact, as the wording of the email indicates, they didn’t do a threat assessment at all. They simply decided that people seeing the poster could feel threatened. That’s really not what a threat assessment is about. That’s not how a threat assessment team should be used.

Fortunately, University Chancellor Charles W. Sorensen stepped in and reminded Chief Walter that the campus police are there to support the university’s faculty, and that trying to suppress their First Amendment rights is unacceptable…Nah! Just kidding. Chancellor Sorensen was actually a total dick:

UW-Stout administrators believe strongly in the right of all students, faculty and staff to express themselves freely about issues on campus and off.  This freedom is fundamental on a public university campus.

Don’t be fooled. That’s just the standard bureaucratic tyrant’s obligatory genuflection to free speech. It always comes right before they explain why they’re suppressing free speech:

However, we also have the responsibility to promote a campus environment that is free from threats of any kind–both direct and implied. It was our belief, after consultation with UW System legal counsel, that the posters in question constituted an implied threat of violence. That is why they were removed.

This was not an act of censorship. This was an act of sensitivity to and care for our shared community, and was intended to maintain a campus climate in which everyone can feel welcome, safe and secure.

Of course it was an act of censorship. Free speech is not limited to only speech which makes people feel safe and secure. Although, really, if either of the things that Miller had on his door makes you feel threatened, you’re kind of a wimp. Or a liar.

The Foundation for Individual Rights in Education has gotten involved.

(I’ve been hanging onto this for a few days in the hope of figuring out a better way to say what I’m trying to say, but it’s just not coming to me, so I’m going with what I’ve got.)

In the wake of the tragic shooting of Representative Gabrielle Giffords last weekend, we’ve been hearing the usual scolding from public figures worried about the anger and hatred in our political discourse:

Last spring Politico.com reported on a surge in threats against members of Congress, which were already up by 300 percent. A number of the people making those threats had a history of mental illness — but something about the current state of America has been causing far more disturbed people than before to act out their illness by threatening, or actually engaging in, political violence.

And there’s not much question what has changed. As Clarence Dupnik, the sheriff responsible for dealing with the Arizona shootings, put it, it’s “the vitriolic rhetoric that we hear day in and day out from people in the radio business and some people in the TV business.” The vast majority of those who listen to that toxic rhetoric stop short of actual violence, but some, inevitably, cross that line.

Here’s an example from an AP article by Charles Babington and Calvin Woodward:

Sen. Dick Durbin, the second-ranking Democratic leader in the Senate, on Sunday cited imagery of crosshairs on political opponents and Sarah Palin’s combative rallying cry, “Don’t retreat; reload.”

“These sorts of things, I think, invite the kind of toxic rhetoric that can lead unstable people to believe this is an acceptable response,” Durbin said Sunday on CNN’s “State of the Union.”

The attack might be the work of “a single nut,” Democratic Rep. Raul Grijalva, whose Arizona district shares Tucson with Giffords’ district, said Saturday, the day Giffords was shot. But he said the nation must assess the fallout of “an atmosphere where the political discourse is about hate, anger and bitterness.”

It seems like every time something like this happens, some people try to blame it on the rhetoric of their political opponents. They tell people to tone it down, to quell the vitriolic rhetoric, to be careful what they say, so that crazy people don’t violently overreact.

I say to hell with that.

First of all, if politicians and other public figures don’t want us to hate them, if they don’t want us angry at them, then they should stop doing stuff that pisses us off. I know that’s going to be difficult: Every issue has people on all sides of it, so no matter which side they take, someone’s going to be angry at them.

Tough. That’s the job. If they want to hold an important public position, then by definition they’re going to be responsible for making decisions that matter to people. They’re going to have to make hard calls, and they won’t be able to please everyone. That’s what having power means. Thinking you can hold public office without angering people is like wanting to be a race car driver without damaging any cars.

Second, the idea that we should tone it down is related to the pop-psychology idea that anger and hatred are “negative emotions” which we should try to suppress. That’s mostly nonsense. Feelings of anger and hatred are part of the perfectly normal human reaction to dreadful situations. So if you think the folks who run our government are doing bad things, it’s normal to be angry. It’s normal to hate them. How else should we feel about the people who are ruining everything?

That said, you don’t want to let anger and hatred consume you. Timothy McVeigh should not be your role mode. (And, for different reasons, neither should Fred Goldman.) But getting pissed off at the people you think are messing up our country…that’s normal. Don’t worry about it.

Third, anybody who’s ever given a speech or written a blog knows that it’s hard to make people understand what you want to say. Some people will misunderstand your point because they lack the background, or because they’ve had different life experiences, or just because they have a different way of thinking about the world. It’s hard work telling a story or making a point in a way that communicates clearly with most of your audience.

And that’s just with normal, sane, and intelligent people. Throw in some real insanity, and there’s no hope of being understood properly. Crazy people are quite likely to hear something very different from what you’re saying. We’re talking here about the kinds of people who watch David Letterman on television and think he’s sending them secret personal messages, or the kind of people who talk to Steven Spielberg for 30 seconds in a hotel elevator and think he’s agreed to produce their script.

There’s no way to predict how someone like this will understand the things you say, and it’s madness to censor yourself in anticipation of every possible reaction. You just can’t let crazy people run your life that way.

Finally, we have to look at the kinds of people calling for moderation: Politicians and media personalities. The prominent and the powerful. They always hate it when the rest of us have something to say.

For example,

In Pima County, Ariz., Sheriff Clarence Dupnik suggested “all this vitriol” in recent discourse might be connected to Saturday’s shootings. “This may be free speech,” he told reporters, “but it’s not without consequences.”

So we’re getting a lecture about violent rhetoric from a guy who has his own SWAT team? A dozen guys like Glenn Beck and Keith Olbermann–or a thousand bloggers like me–couldn’t begin to do as much harm with words as Sheriff Dupnik’s SWAT team could do in one bad day. The Sheriff was probably even carrying a gun while he spoke, so those consequences he’s worried about are just one trigger pull away for him.

It’s the same with all the members of Congress. They’re funding big wars in two countries–not to mention the drug war here are home–and they’re telling us to tone it down? President Obama orders the assasination of an American citizen, but we’re supposed to be worried about violent subtext on talk radio? Police around the country are shooting innocent people as the unavoidable consequence of performing forty thousand armed raids every year, but we should worry about heated expressions of opinion?

I’m not saying it’s good to be a tough-talking jackass, but people who have the authority to kill–and who have on occasion used it–should lay off telling the rest of us to be careful how we say things.

Update: Since I wrote this, the Pima County Sheriff’s SWAT team has had their bad day. On May 5, they killed a United States Marine during a drug raid.

Over at the Legal Satyricon, Charles Platt is a little annoyed at Julian Assange over the whole Wikileaks business:

I’m getting an uneasy feeling when I watch Julian Assange using pretentious phrases such as “my philosophy” and “my work.” … It’s the same feeling I had when I saw the World Trade Center going down. A feeling that I am watching a golden opportunity for people in power to take away some of my freedoms.

That wasn’t exactly my first thought when I saw the towers fall, but I know what he means. This is going to be an excuse for some people in government. Oh, they’ll say they’re all for freedom of the press, they just want to make sure it’s used responsibly, not abused by people who aren’t legitimate members of the press.

Assange’s self-righteous crusade is sufficiently defiant, and is being done in such a pompous style, some kind of retaliation seems inevitable. Already the UN is on record as wanting to “harmonize” efforts to regulate the Internet, in response to Wikileaks. (See this news item.)

Oh God, the last thing we need is U.N. involvement. Those are the folks who put Lybia in charge of the Human Rights commission and recently decided not to concern themselves that some countries were executing people for being gay.

I am old enough to remember how publishers got rid of US laws regarding pornography. They fought a carefully executed, incremental campaign. Freedoms tend to be won this way, slowly but relentlessly, in small steps. Media whores who make grand gestures are not useful in this process. They just provide more fuel for backlash.

Look, I’m not a huge fan of Julian Assange, either. He comes across like a self-important jerk. But when you fight for free speech rights, you often fight for the free speech rights of self-important jerks–pornographers, gangsta rappers, foul-mouthed comedians, primadonna rock stars, racists, Fred Phelps. They’re the kinds of people that everybody wants to shut up. Nice people, the ones with accomplishments and values you admire, are a lot less likely to set some would-be censor on a clean-up crusade.

(There are, of course, exceptions. Even non-controversial people can run into campus political correctness or bizarre commercial speech laws.)

We enjoy freedoms online because resourceful groups such as ACLU and EFF fought and won test cases. How unfortunate it would be to see those freedoms squashed because of a prima-donna whose “philosophy” and “work” have been of negligible value so far. It’s important to remember that he is really just another content aggregator, and the material that he has revealed has not been of critical significance. Certainly not important enough to justify a battle that we are likely to lose.

The things WikiLeaks has revealed may not be “important enough to justify a battle that we are likely to lose” (although this is pretty awful), but that’s the sort of evaluation that would have been useful before they started dumping documents. Now that Assange has made his move, for better or worse, we’re in the battle, and we have to fight it or we certainly will lose.

(We all serve in our own way. Guys like Marc Randazza become First-Amendment lawyers, and guys like me just bitch about it to anyone who will listen.)

The other thing to remember is that this is how we want it to be. If we’re fighting the forces of government censorship over really important issues, then we’ve already let them get too far. It’s like defending a country against invasion: You want to stop the enemy at the borders, not in the heartland. We want the battles for free speech to occur at the fringes, and that means defending people like Julian Assange.

I was reading yet another story about the good old fashioned book burning organized, then cancelled, by Pastor Terry Jones. President Hamid Karzai was quoted as saying:

“We have heard that in the US, a pastor has decided to insult Korans. Now although we have heard that they are not doing this, we tell them they should not even think of it.
“By burning the Koran, they cannot harm it. The Koran is in the hearts and minds of one-and-a-half billion people. Insulting the Koran is an insult to nations.”

It sounds like he has read Fahrenheit 451 and even managed to understand the premise that burning a book cannot destroy the ideas within the pages. Yet he still considers the act an insult to the book. Protesters around the world burn American flags (which doesn’t matter since that act cannot harm the ideals of the US Constitution) angry that the US government didn’t take away the liberties of the Koran burners.

Can we compare or contrast this with Everybody Draw Mohammed Day? What is the difference between that (very cool) event and the Great Orlando Koran BBQ? One difference, I suppose, is in the intent of the event. Pastor Jones really does want to insult Muslims and is not trying to promote freedom of expression. I’m sure, however, that many Mohammed artists had the same intent, ignoring the idea that it was supposed to be about threats to freedom of expression.
As a baby-eating American atheist it did get me to thinking about how these actions are perceived by Muslims around the world. The protesters around the world do seem to understand that Pastor Jones is trying to insult them yet fail to understand why our government allows Koran burning.
What can be done to change that perception? People like Imam Feisal Abdul Rauf, the leader behind the Cordoba House, are working on interfaith projects in hopes that followers of different religions will realize that they are not so different after all.
This sounds like a reasonable idea. Perhaps the problem with Koran burnings and Draw Mohammed days is that they focus on one faith. Maybe what we need is a interfaith event that will insult as many religions as possible all at once. And we should find a way to desecrate an American flag as well so the flag worshipers don’t feel left out. Maybe then the people around the world will realize that the US government allows these events not because Americans hate Muslims, but because Americans love freedom of speech.
So what we need is a new event. Maybe we can barbecue a cow using Bibles for fuel and use the ashes to draw Mohammed. Hmm… Only insulting three religions there. We have to be able to do better than that.

It’s hardly the greatest infringement of free speech I’ve ever heard of, but this doesn’t sound right:

The manager of a North Chicago sandwich shop learned in a Lake County courtroom this week that the difference between a joke in poor taste and an inflammatory remark is about 75 bucks.

Arjunsinh Sindha, 64, said he feels as if he was treated unfairly when he was fined $75 after he was found guilty of disorderly conduct for asking a Pakistani-born customer if he was a terrorist.

Khan reported Sindha’s comment to North Chicago officials and Sindha was issued a ticket under a city ordinance for disorderly conduct.

I can’t tell from context if Sindha is a jerk or just a talkative guy who went a bit over the line, but either way I’m pretty sure this falls well within his right to freedom of speech. Cops have always stretched the definition of disorderly conduct to include whatever happens to piss them off, but speech restrictions like this are supposed to be based on time, place, and manner of speech — e.g. screaming your head off late at night in a hospital zone — not on the offensiveness of the words spoken.