Category Archives: Free Speech

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.”

To Publish or Not To Publish

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.

The Queen is a Fink!

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.)

Buffer Zones and Free Speech Zones

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?

No Need for the Truth Police

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 Wants Us to Stop Being Mean…Or Else

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.

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