Back to Prindle Institute

Is It Always Wrong to Blame the Victim?

photograph of burning match near a bunch of unlit matches

In July 2010, Terry Jones, the pastor of a small church in Florida, announced he would burn 200 Qurans on the ninth anniversary of the 9/11 attacks — an event he dubbed “International Burn the Quran Day.” The pastor blamed the Quran for the attacks and other terrorist violence. When September came, Jones was temporarily dissuaded from acting through the personal intervention of religious leaders and government officials, including a phone call from Defense Secretary Robert Gates. Nevertheless, in March 2011, Jones livestreamed a “trial” of the holy book, complete with Arabic subtitles. After a brief recitation of the “charges,” the pastor condemned a copy of the Quran to be torched in a portable fire pit. A few weeks later an Afghan mob, whipped into a frenzy by sermons and speeches denouncing the act, attacked a U.N. compound, killing seven U.N. employees. Subsequent riots left nine dead and more than ninety injured. Days later, two U.S. soldiers were shot and killed by an Afghan policeman in an attack that was later attributed to his anger over the burning.

Condemnation of Jones was nearly universal. A frequent theme in the chorus of opprobrium was the argument that Jones was responsible for putting American lives at risk overseas.

Prior to the burning, President Obama said that “I just want [Jones] to understand that this stunt that he is talking about pulling could greatly endanger our young men and women in uniform who are in Iraq, who are in Afghanistan.” After the riots, a Pentagon spokesman said the violence showed that “irresponsible words and actions do have consequences.” Some commentators also blamed the U.S. media for “recklessly” amplifying the story. Only a few, mostly conservative writers focused attention on the “eternal flame of Muslim outrage” that made Quran-burning such an explosive act.

This incident came to mind as I read Giles Howdle’s recent column on the assassination attempt against Salman Rushdie. Howdle argues that Rushdie is not responsible for any of the violence provoked by his novel, The Satanic Verses — including, but not limited to, violence directed at his own person.

To support his claim, Howdle points out that Rushdie’s actions, while part of a causal chain that predictably produced violence, were themselves non-violent, and that Rushdie never encouraged or desired violence.

According to Howdle, blaming Rushdie is akin to blaming the victim of sexual assault for having worn “provocative” clothing. Moreover, Howdle contends that placing responsibility for violence on Rushdie instead of the Muslim perpetrators treats the latter as “lacking full moral agency.”

These arguments are compelling, but I wonder if they derive some of their plausibility from the fact that Rushdie is an immensely sympathetic character: a brilliant writer and man of the left, persecuted for nothing more than a witty novel. Jones is a much less appealing figure; and yet, in its essentials, his act and Rushdie’s seem comparable. Jones’ act was non-violent, albeit part of a causal chain that predictably caused violence. While it is debatable whether Jones set out to incite violence, assume arguendo that his act expressed his sincerely held, if deeply bigoted beliefs, and that he merely foresaw the possibility of violence resulting from his act rather than wanting or intending it to occur. Doubtless, Rushdie’s novel is more valuable than Jones’ political stunt; but Howdle’s case does not turn on the value, aesthetic or otherwise, of Rushdie’s work.

If your intuitions about these cases still differ, I suggest it has something to do with your sympathy for Rushdie and aversion to Jones, rather than any consistent commitment to the proposition that those who, through their non-violent acts, provoke others to commit acts of violence as a foreseen or foreseeable but unwanted side effect are not responsible for that outcome.

Consider this thought experiment. Smith is walking briskly to a job interview for which he is already five minutes late. Suddenly, out of an alley appears a man holding a woman at gunpoint, blocking Smith’s path. The man warns Smith that if he takes one step closer, he will shoot the woman. Unfortunately, Smith has to move in the man’s direction if he wants to make his interview. Resolving to set up a college fund for any children the woman might have, Smith takes a step toward the man, who promptly shoots the woman. Here, Smith’s act is non-violent, though it has predictably violent consequences given the man’s credible threat. In addition, Smith does not want any misfortune to befall the victim: if, say, the man’s gun jammed and the woman were able to escape his clutches, Smith would be delighted. Yet surely he bears some responsibility for her death, and in the scenario in which the gun jams, he is still responsible for risking her life. It might be argued that by taking the step, Smith somehow encouraged or incited the man. But if simply doing what will predictably trigger the execution of another person’s threat constitutes incitement or encouragement, then writing, publishing, or not recalling a book in the face of credible threats that these acts will cause violence is also encouragement or incitement.

My point is not that the Smith case is analogous in every respect to the Rushdie case.

Rather, my argument is that we are sometimes partially responsible for other people’s violent acts and the harm that results, even if we don’t encourage or welcome them in any way.

If that’s true, then any argument for Rushdie’s lack of responsibility for the violence that occurred as the result of his novel’s publication needs to be more nuanced. It is not sufficient that Rushdie’s own acts were non-violent and that he did not encourage or incite violence or want it to occur.

What we need, in other words, is a more sophisticated theory of when we are morally responsible for causing others to harm third parties — notably including, but not limited to, situations in which we trigger the execution of another person’s credible threat to harm another. The range of cases is immense.

For example, when a government decides to abide by its policy never to pay a ransom in the face of a credible threat to a hostage’s life, and that decision leads to the hostage’s death, that is not generally considered an outcome for which the government is blameworthy. On the other hand, the media has sometimes been blamed for causing “copycat” acts of violence by publicizing the names or manifestos of mass shooters.

What distinguishes these cases? By carefully examining the differences between cases like these, we can start to build a theory that hopefully better explains our moral intuitions.

There is, of course, an obvious distinction between the Smith and Jones cases on the one hand, and Rushdie’s case on the other: Rushdie himself was a victim. Even if we grant that we are sometimes responsible for harm that others cause third parties, that is not the same as blaming the victim. The question, then, is whether we are ever responsible for self-harm that occurs as a foreseen or foreseeable but unwanted result of our actions’ influence on others.

There are actually two things we might mean when we say that we are “responsible” for this kind of self-harm. The first is that by knowingly running the risk of provoking harm to ourselves, we tacitly consent to the risk, thereby waiving our right against the perpetrator that she not harm us: the “he asked for it” defense. The second interpretation is that by knowingly running the risk of provoking harm to ourselves, we are blameworthy for the perpetrator’s acts and resulting self-harm. Space constraints prevent me from analyzing these interpretations in depth here, so a few general points must suffice.

As with responsibility for provoking others to harm third parties, it seems unlikely that we are either never or always responsible for self-harm in either of these senses.

The idea of holding sexual assault victims responsible for their perpetrators’ actions is morally repugnant, but this may be best explained in light of our attitudes and expectations related to sexual violence, rather than some general moral principle barring liability for self-harm in all cases. Again, it seems that we need a more nuanced theory than “the victim is never responsible.”

Despite the foregoing, I am confident that blaming Rushdie for the violence his novel provoked is morally perverse. However, as I hope to have shown, we need better arguments for why this is so.

Book Bans, the First Amendment, and Political Liberalism

photograph of banned book display in public library

Book bans in public schools are not new in America. But since 2021, they have reached levels not seen in decades, the result of efforts by conservative parents, advocacy groups, and lawmakers who view the availability of certain books in libraries or their inclusion in curricula as threats to their values. In one study that looked at just the nine-month period between July 1, 2021 and March 31, 2022, the free expression advocacy organization PEN America found nearly 1,600 instances of individual books being banned in eighty-six school districts with a combined enrollment of over two million students. Of the six most-banned titles, three (Gender Queer: A Memoir, All Boys Aren’t Blue, and Lawn Boy) are coming-of-age stories about LGBTQ+ youth; two (Out of Darkness and The Bluest Eye) deal principally with race relations in America; and one (Beyond Magenta: Transgender Teens Speak Out) features interviews with transgender or gender-neutral young adults. 41% of the bans were tied to “directives from state officials or elected lawmakers to investigate or remove books.”

The bans raise profound ethical and legal questions that expose unresolved issues in First Amendment jurisprudence and within political liberalism concerning the free speech rights of children, as well as the role of the state in inculcating values through public education.

What follows is an attempt to summarize, though not to settle, some of those issues.

First, the legal side. The Supreme Court has long held that First Amendment protections extend to public school students. In Tinker v. Des Moines Independent Community School District, a seminal Vietnam War-era case about student expression, the Court famously affirmed that students in public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Yet student expression in schools is limited in ways that would be unacceptable in other contexts; per Tinker, free speech rights are to be applied “in light of the special characteristics of the school environment.”

Accordingly, Tinker held that student speech on school premises can be prohibited if it “materially and substantially disrupts the work and discipline of the school.”

The Court has subsequently chipped away at this standard, holding that student speech that is not substantially and materially disruptive — including off-campus speech at school-sponsored events — can still be prohibited if it is “offensively lewd and indecent” (Bethel School District No. 403 v. Fraser), or can be “reasonably viewed as promoting illegal drug use” (Morse v. Frederick). In the context of “school-sponsored expressive activities,” such as student newspapers, the permissible scope for interference with student speech is even broader: in Hazelwood School District v. Kuhlmeier, the Court held that censorship and other forms of “editorial control” do not offend the First Amendment so long as they are “reasonably related to legitimate pedagogical concerns.”

Those cases all concerned student expression. A distinct issue is the extent to which students have a First Amendment right to access the expression of others, either through school curricula or by means of the school library. Book banning opponents generally point to a 1982 Supreme Court case, Board of Education, Island Trees Union Free School District No. 26 v. Pico, to support their argument that the First Amendment protects students’ rights to receive information and ideas and, as a consequence, public school officials cannot remove books from libraries because “they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, and other matters of opinion.”

There are, however, three problems with Pico from an anti-book banning perspective. First, those frequently cited, broad liberal principles belong to Justice Brennan’s opinion announcing the Court’s judgment. Only two other justices joined that opinion, with Justice Blackmun writing in partial concurrence and Justice White concurring only in the judgment. Thus, no majority opinion emerged from this case, meaning that Brennan’s principles are not binding rules of law. Second, even Brennan’s opinion conceded that school officials could remove books from public school libraries over concerns about their “pervasive vulgarity” or “educational suitability” without offending the First Amendment. This concession may prove particularly significant in relation to books depicting relationships between LGBTQ+ young adults, which tend to include graphic depictions of sex. Finally, Brennan’s opinion drew a sharp distinction between the scope of school officials’ discretion when it comes to curricular materials as opposed to school library books: with respect to the former, he suggested, officials may well have “absolute” discretion. Thus, removals of books from school curricula may be subject to a different, far less demanding constitutional standard than bans from school libraries. In short, Pico is a less-than-ideal legal precedent for those seeking to challenge book bans on constitutional grounds.

The question of what the law is is, of course, distinct from what the law should be. What principles should govern public school officials’ decisions regarding instructional or curricular materials and school library books?

A little reflection suggests that the Supreme Court’s struggle to articulate clear and consistent standards in the past few decades may be due to the fact that this is a genuinely hard question.

Political liberalism — the political philosophy that identifies the protection of individual liberty as the state’s raison d’être — has traditionally counted freedom of expression among the most important individual freedoms. Philosophers have customarily offered three justifications for this exalted status. The first two are broadly instrumental: according to one view, freedom of expression promotes the discovery of truth; according to another, it is a necessary condition for democratic self-governance. An important non-instrumental justification is that public expression is an exercise of autonomy, hence intrinsically good for the speaker.

The instrumental justifications seem to imply, or call for, a corresponding right to access information and ideas. After all, a person’s speech can only promote others’ discovery of truth or help others govern themselves if that speech is available to them. Simply having the unimpeded ability to speak would not contribute to those further goods if others were unable to take up that speech.

Yet even if the right of free speech implies a right to access information and ideas, it may be plausibly argued that the case for either right is less robust with respect to children. On the one hand, children generally have less to offer in terms of scientific, artistic, moral, or political speech that could promote the discovery of truth or facilitate democratic self-governance, and since they are not fully autonomous, their speech-acts are less valuable for them as exercises of their autonomy. On the other hand, since children generally are intellectually and emotionally less developed than adults, and also are not allowed to engage in the political process, they have less to gain from having broad access to information and ideas.

Obviously, even if sound, the foregoing argument only establishes lesser rights of free speech or informational access for children, not no such rights. And the case for lesser rights seems far weaker for teenagers than for younger children. Finally, the argument may be undermined by the state and society’s special interest in educating the young, which may in turn provide special justification for more robust free speech and informational access rights for children. I will return to this point shortly.

All the states of the United States, along with the federal government, recognize an obligation to educate American children. To fulfill that obligation, states maintain public schools, funded by taxation and operated by state and local government agencies, with substantial assistance from the federal government and subject to local, state, and federal regulation. As we’ve seen, the Supreme Court has mostly used the educational mission of the public school as a justification for allowing restrictions on students’ free speech and informational access rights inasmuch as their exercise would interfere with that mission.

Thus, the Court deems student speech that would disturb the discipline of the school, or books that would be “educationally unsuitable,” as fair game for censorship.

This is not radically different from the Court’s approach to speech in other public institutional contexts; for example, public employees’ speech is much more restricted than speech in traditional public forums. The combination of the sort of considerations adduced in the last paragraph, together with idea that speech and informational access can be legitimately restricted in public institutions, may lead one to conclude that student expression and informational access in public schools can be tightly circumscribed as long as it is for a “legitimate pedagogical purpose.”

This conclusion would, I think, be overhasty. The overriding pedagogical purpose of the public school does not cleanly cut in favor of censorship; in many ways, just the opposite. Educating students for citizenship in a liberal democracy must surely involve carefully exposing them to novel and challenging ideas. Moreover, mere exposure is not sufficient: the school must also encourage students to engage with such ideas in a curious, searching, skeptical, yet open-minded way. Students must be taught how to thrive in a society replete with contradictory and fiercely competing perspectives, philosophies, and opinions. Shielding students from disturbing ideas is a positive hindrance to that goal. This is not to deny that some content restrictions are necessary; it is merely to claim that the pedagogical mission of the public school may provide reason for more robust student free speech and informational access rights.

But what about conservatives’ objections — I assume at least some of them are made in good faith — to the “vulgarity” of certain books, irrespective of their intellectual content? Their determination to insulate students from graphic descriptions of sex might seem quixotic in our porn-saturated age, and one might think it is no worse than that. In fact, insofar as these objections derive from the notion that it is the job of public schools to “transmit community values,” as Brennan put it in Pico, they raise an important and unresolved problem for political liberalism.

Many versions of political liberalism hold that the state should strive to be neutral between the competing moral perspectives that inevitably exist in an open society.

The basic idea is that for the sake of both political legitimacy and stability, the state ought to be committed to a minimal moral framework — for example, a bill of rights — that can be reasonably accepted from different moral perspectives, while declining to throw its weight behind one particular “comprehensive doctrine,” to use John Rawls’s phrase.

For example, it would be intuitively unacceptable if state legislators deliberated about the harms and benefits of a particular policy proposal in terms of whether it would please or enrage God, or of its tendency to help the public achieve ataraxia, the Epicurean goal of serene calmness. One explanation for this intuition is that such deliberation would violate neutrality in employing ideas drawn from particular comprehensive doctrines, whether secular or religious, that are not part of that minimal moral framework with which most of the public can reasonably agree.

If state neutrality is a defensible principle, it should also apply to public education: the state should not be a transmitter of community values, at least insofar as those values are parochial and “thick,” rather than universal and “thin.” Concerns about children’s exposure to graphic depictions of sex may be grounded in worries about kinds of harm that everyone can recognize, such as psychological distress or, for certain depictions, the idea that they encourage violent sexual fantasies that might later be enacted in the real world. But conservatives’ worries might also be based in moral ideas that don’t have much purchase in the liberal moral imagination — ideas about preserving sexual purity or innocence, or about discouraging “unnatural” sexual conduct like homosexuality. These ideas, which are evidently not shared by a wide swath of the public, do not have a place in public education policy given the imperative of state neutrality.

Unfortunately, while perhaps intuitively compelling, the distinction between an acceptably “minimal” moral framework and a “comprehensive doctrine” has proved elusive. For example, are views about when strong moral subject-hood begins and ends necessarily part of a comprehensive doctrine, or can they be inscribed in the state’s minimal moral framework? Even if state neutrality can be adequately defined, many also question whether it is desirable or practically possible. Thus, it remains an open question whether the transmission of parochial values is a legitimate aim of public education.

Public educators’ role in mediating between students and the universe of ideas is and will likely remain the subject of ongoing philosophical and legal debate. However, this much seems clear: conservative book bans are just one front in a multi-front struggle to reverse the sixty-year trend of increasing social liberalization, particularly in the areas of sex, gender, and race.

Some University of Chicago Students Prove Lukewarm on Free Speech

photograph of University of Chicago ivy-covered Gothic buildings

The University of Chicago is known as a bastion for, and important intellectual proponent of, free speech and academic freedom. Its “Chicago Statement,” released in 2015 and since adopted by over eighty academic institutions across the country, is considered the gold standard for university free speech policy statements. Yet a recent incident involving its student newspaper, The Chicago Maroon, shows that a university’s commitment to free speech is only as robust as that of its members — including its students.

On January 26, 2022, the University of Chicago chapter of Students for Justice in Palestine (SJP UChicago) posted a call to boycott “Sh*tty Zionist Classes” on its Instagram page. Although the boycott included within its ambit any class at Chicago “on Israel or those taught by Israeli fellows,” it was apparently aimed at three particular classes, whose course descriptions the post reproduced along with critical annotations. “By attending these classes,” the post argued, “you are participating in a propaganda campaign that creates complicity in the continuation of Israel’s occupation of Palestine.”

Almost a month later, the Maroon published an op-ed entitled “We Must Condemn the SJP’s Online Anti-Semitism.” Notably, its subheading inaccurately described SJP UChicago’s boycott as aimed at “Jewish-taught and -related classes.” The op-ed itself argued that based on the lunisolar Hebrew calendar, SJP UChicago had posted its boycott demand on Holocaust Remembrance Day, which the authors claimed “was done to isolate and alienate the Jewish population at UChicago and to interfere with a day of mourning.” It also claimed that “the targeting of classes taught specifically by Israeli fellows is xenophobic” and that because all of the courses singled out in the post were housed within the university’s Center for Jewish Studies, the post “furthers the trope that Jewish courses and professors work to contribute to propaganda for Israel.” Finally, it denounced SJP UChicago’s attempt to persuade students to avoid or drop certain classes as a violation of the university’s discrimination and harassment policies, since Israeli faculty were “directly discriminated against,” Jewish students were “indirectly” discriminated against, and the harassment policy “states that any organization that uses social media . . . in order to interfere with the education of students is harassment [sic].”

The op-ed’s first two arguments are fine as far as they go: substantively they’re thin gruel, but they’re firmly in line with the Chicago Statement’s view that the best antidote to “offensive, unwise, immoral, or wrong-headed” speech is more speech. By contrast, the argument that the SJP UChicago boycott announcement violates the university’s discrimination and harassment policies was a blatant attempt by the authors to pressure the university into sanctioning other students for political speech under the flimsy pretext of “harassment” and “discrimination.” This is clearly contrary to the letter and spirit of the Statement, which states that

it is for the individual members of the University community, not for the University as an institution, to make those judgments [about which ideas are offensive, unwise, immoral, or wrong-headed] themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.

As a threshold matter, it’s unclear whether student choices concerning what classes to take, or speech directed at influencing such choices, fall within the scope of UChicago’s discrimination policy. Even if they do, SJP UChicago’s boycott demand was clearly based on the ideological content of the courses or the instructors’ institutional affiliations, not their national origins or religion. Assuming arguendo that the boycott announcement constituted or encouraged discrimination based on instructor national origin or faith, it could not constitute harassment unless, in addition to being based on a proscribed factor such as national origin, it unreasonably interfered with a person’s work performance or educational program participation or created an intimidating, hostile, or offensive work environment. Finally, because it plausibly occurred in “an academic context,” to qualify as harassment it also had to be directed at specific persons, constitute abuse, and serve no bona fide academic purpose. Clearly, SJP UChicago’s boycott announcement ticks none of these boxes.

If the op-ed itself didn’t excel in free speech terms, what happened next was no better and suggested that SJP UChicago and some editors at the Maroon would probably benefit from reading the Statement again.

On April 2 the editors of Viewpoints, the Maroon’s opinions page, decided to retract the op-ed, citing “factual inaccuracies.” In a long and rambling explanatory note, the editors said that these inaccuracies “flattened dialogue and perpetuated hate toward [SJP UChicago], Palestine Palestinian students, and those on campus who support the Palestinian liberation struggle,” and apologized to SJP UChicago and “all others affected by this decision.” However, the editors identified only four inaccuracies: the characterization of the boycott as targeting “Jewish-taught and -related classes,” which did not even appear in the op-ed itself but in its subheading; another description of the boycott as targeting classes “taught by Israeli professors,” rather than Israeli fellows affiliated with the Israel Institute; the claim that the post was deliberately published on Holocaust Remembrance Day; and the claim that SJP UChicago members had approached students on the quad about boycotting the classes. At key points, the editors appeared to rely upon information provided by SJP UChicago, rather than any independent reporting, to correct the op-ed’s claims. Notably, the retraction note included something like a disclaimer from the editor-in-chief and managing editor of the Maroon pointedly stating that “the following apology does not constitute an institutional perspective and represents only the views of the current Viewpoints Head Editors.”

Thus, apparently under pressure from SJP UChicago and its allies, the Viewpoints editors retracted the op-ed under a thin pretext of concern for four factual inaccuracies. One of these inaccuracies was not even the responsibility of the op-ed’s authors, while others were only inaccurate by the lights of SJP UChicago’s own account of events. Moreover, the Viewpoints editors had other, less dramatic options available to them to address what factual inaccuracies existed, such as publishing corrections or inviting a rebuttal from an SJP UChicago member.

Even if the factual inaccuracies were more significant, however, the crucial question the retraction raises is the extent to which a newspaper is responsible for the factual inaccuracies that appear in the opinion pieces it chooses to run.

On its face, it would seem that since the purpose of an opinions page is to provide a forum for community voices rather than news coverage, ensuring the factual accuracy of the former is a lesser priority. It is true that some factual inaccuracies may be so glaring that they either undermine an op-ed’s main claims or arguments or they amount to pernicious disinformation. In these cases, factual inaccuracies may sap an opinion piece of its value in fostering debate and discussion because they render the piece, in some important sense, irrelevant. That does not seem to be the case here.

In addition, the Viewpoints editors trotted out the specter of the “harm” caused by the op-ed to justify its retraction. The implication, it seems, is that speech must be harmless to be publishable. Some defenders of free speech tend to downplay the harm caused by it, arguing that belief in speech’s harmfulness is based on “cognitive distortions.” However, as I have argued before, the best argument for tolerating offensive, wrong-headed, hateful, or immoral speech is not that it is harmless. For example, the U.S. Supreme Court did not hold that journalists are immune from suit for negligent defamation of public officials because the latter are psychologically maladjusted snowflakes whose reputations are not really harmed by defamatory falsehoods broadcast about them by major news outlets. Instead, its rationale was that the costs of allowing journalists to be sued for negligent defamation — and in particular, the so-called “chilling effects” on politically important speech — substantially outweigh the benefits. By the same token, newspapers like the Maroon should publish potentially harmful speech at least partly because accepting the editorial principle that speech is publishable only if it cannot inflict any degree of harm upon any person at any time would have a devastating effect on a newspaper’s ability to serve as a forum for lively, relevant, and politically engaged debate and discussion.

If, as the original op-ed amply demonstrates, some are already tempted to use institutional discrimination and harassment policies to silence others’ speech, consider what a gift it would be to these censors manqué if everyone accepted that narrow principle of publishable speech.

The University of Chicago has much to be proud of in its record of defending free speech against the rising tide of illiberalism on both the right and left. But as Hannah Arendt reminded us, in every generation, civilization is invaded by barbarians — we call them “children.” Among the most important duties of the university in a liberal society is to inculcate in each new class of undergraduates the disposition to critically evaluate deeply offensive speech without invoking some institutional lever to censor the speaker. Apparently, in this respect even UChicago can stand to do better.

Academic Freedom and the Kershnar Case: A Partial Dissent

photograph of pole vault crossbar

American appellate court opinions often include one or more concurrences, where judges register their agreement with the majority or plurality’s decision but disagree in part or in whole with its reasoning. Judges are also free to concur with parts of the majority or plurality’s decision, but dissent to other parts. When this happens, it can be pretty unclear where the judge stands with respect to the majority or plurality opinion. As I read Rachel Robison-Greene’s excellent column about the Stephen Kershnar controversy, I felt something like this complicated patchwork of concurrence and dissent thread together in my mind. The following is an attempt to articulate these thoughts.

To quickly recap the controversy, late last month Kershnar, a philosophy professor at SUNY Fredonia, was interviewed for “Brain in a Vat,” a philosophy-themed podcast. In the interview, Kershnar claimed that adults having sex with children is not morally wrong. The argument he offered for this startling claim was fairly weak, as Robison-Greene shows in her column. Unfortunately, the interview has been removed from YouTube, which makes it difficult for people who haven’t watched it to evaluate the argument for themselves. In any case, clips of the interview went viral, and in response to the controversy, SUNY Fredonia barred Kershnar from campus or from contacting students pending the results of a formal investigation. Free speech advocacy organizations and not a few prominent academics have since protested SUNY Fredonia’s move on the grounds that it violates its own commitment to academic freedom, as well as First Amendment protections that apply to Kershnar as a state government employee.

Robison-Greene provides a clear summary of the academic freedom argument against sanctioning Kershnar, but I want to draw out a few strands that deserve closer attention. If society is actually committed to free inquiry in universities, it must be willing to tolerate academics questioning even its firmest convictions. Indeed, the case for academic freedom is arguably strongest with respect to those areas in which one viewpoint is overwhelmingly dominant, if not universal. It is here that a particular viewpoint comes to seem like the only possible viewpoint — where belief, claiming the mantle of self-evidence, petrifies into dogma. Examples from history are legion: the belief in the unsuitability of women for public life, or in the immorality of homosexuality.

It might be replied that surely, we know that pedophilic sex is wrong, just as we know that slavery is wrong. And even if we don’t know that these claims are true — and especially if, as some philosophers argue, these claims are not knowable, strictly speaking —why allow them to be publicly questioned given all of the deleterious effects that could result, as Robison-Greene plausibly argues? Here, I think, we come to the nub of the issue. The question is this: are the net benefits of allowing academics to freely inquire into the merits of any socially dominant opinion greater than the net benefits of requiring that someone — perhaps the academic herself, her academic department, or school administration officials — weigh up the costs and benefits of each line of inquiry ex ante before allowing it to proceed?

This is not an easy question to answer. Complicating matters is that some of the goods that can be obtained by free inquiry are arguably different in kind from those that can be obtained through censorship. But we can make a few general observations. First, it is very hard to know, ex ante, what the value of a line of inquiry is. It seems probable to me that questioning the moral wrongness of adult sex with children is, on net, a valueless or disvaluable line of inquiry. But my confidence that this is the case is too low to warrant quashing it ex ante. There are simply too many past examples of lines of inquiry that have seemed valueless or disvaluable ex ante to most people, but that have turned out to be enormously beneficial both epistemically and in terms of human welfare. Where the future is concerned, experience always seems to counsel humility.

Even if we were perfectly rational, the limitations on our knowledge would furnish a reason not to attempt to evaluate lines of inquiry ex ante. But we are not perfectly rational — far from it. In general, the more firmly held a belief is, the less disposed the believer is to entertain evidence that points to its falsity. This means that we are likely to systematically underrate the value of lines of inquiry that could threaten our deepest convictions. Thus, our knowledge of our own biases should make us even more skeptical of the possibility of accurately evaluating lines of inquiry ex ante. 

The argument so far assumes that academic censors would act in good faith — that they would not use their authority to advance their own political agendas by, for example, interpreting the rules in such a way that lines of inquiry they disfavor for political reasons would be proscribed. This is far from clear. Moreover, given the inherent unknowability of the future value of lines of inquiry, empowering people to make decisions about which ones ought to be allowed based on a prospective cost-benefit analysis seems particularly likely to lead to abuses.

There is also the problem of the so-called “Streisand Effect”: in liberal democracies with robust civil societies, attempts to censor opinions actually tend to amplify them. The vast majority of “Brain in a Vat” episodes have view counts in the hundreds. Now, thanks in part to SUNY Fredonia’s attempt to punish Kershnar, his ideas have been discussed in dozens of news articles and blog posts, and a far larger number of tweets. It is likely that had the podcast dropped without comment, thousands who now know about Kershnar’s views would have never heard of him. Authoritarian governments with much greater control over the production and distribution of information might be able to censor successfully, but it is doubtful that in the United States, depriving someone like Kershnar of his platform will make his ideas disappear. Censorship via de-platforming might not even be a viable strategy for quashing objectionable claims.

Robison-Greene writes that “the existence of so much support for [Kershnar’s] case by so many (mostly powerful male) [academics] is likely to make victims of childhood sexual assault feel unsupported and potentially unsafe.” This might be true, but I think it’s worth interrogating why. If victims feel less supported when other academics support Kershnar, it must be either because they think (a) that such support is tantamount to approval for Kershnar’s ideas or (b) that pedophiles view such support as tantamount to approval for Kershnar’s ideas, and the consequence of their viewing it this way is that they will be emboldened to satisfy their sexual desires. Either way, the key idea here is that opposition to punishing Kershnar for his ideas implies support for his ideas. There is, indeed, something highly counterintuitive about the idea of hating what Kershnar says but fighting for his right to say it; it produces the same dissonant sensation as hating the sin and loving the sinner, or appreciating the artistic genius of a moral monster. Human beings have a well-documented aversion to ambivalence; academic freedom and similar rights require us to be ambivalent. If society had a stronger commitment to free thought and free speech, it might be easier for people to accept that supporting a speaker’s right to speak does not imply approval of his ideas.

Robison-Greene reminds us that speech can do real harm, in this case by potentially “empower[ing] [pedophiles] in their conviction that their behavior isn’t actually morally wrong, it’s just commonly viewed that way by society.” Too often, free speech advocates seem to deny that speech harms at all. Given that most of them also point to the U.S. Supreme Court’s First Amendment jurisprudence as a model for how to draw the boundaries of free speech rights, this is somewhat ironic. Even as it strengthened protections for speakers over the course of the last century, the Supreme Court never denied that speech can do serious harm. For example, if a state makes speakers potentially liable for intentional infliction of emotional distress because of what they say, that is fully compatible with the First Amendment. The Court has also held that the First Amendment does not bar liability for defamation. In carving out these exceptions from First Amendment protection, the Court tacitly acknowledged that speech can cause profound emotional and reputational damage.

At the same time, however, it’s important to recognize that when people exercise any of their important individual rights, harm to others frequently results. For example, criminal defendants have constitutional rights that, by making it harder for prosecutors to secure convictions, often harm crime victims. Unlike the citizens of some authoritarian states, Americans are free to move about the country and travel abroad. But this freedom comes at a cost: tens of thousands die on the roads every year, and travel produces substantial greenhouse gas emissions. Parents have extensive rights over their children, and this can cause enormous harm even when parents do not transgress the bounds of law.

Thus, a successful argument for constraining the right to freely inquire — incidentally, the right that SUNY Fredonia guarantees for all of its professors — must do more than show that exercising that right can cause harm. It must show, at minimum, that a policy of constraint both (a) is practically feasible and (b) would produce outcomes that are, on net, better than those that issue from permitting truly free inquiry. I think there are serious reasons to doubt both. That is why, although I agree in some sense with Robison-Greene that this is an “unfortunate case,” at the same time, the fact that our society supports someone who questions its deepest moral convictions is a profound collective achievement. And in the end, I do not think that cases like this pose a serious ethical challenge to our society’s commitment to academic freedom.

Testing the Limits of Academic Freedom

photograph of SUNY Fredonia sign at dusk

On January 30th, 2022, SUNY Fredonia professor Stephen Kershnar was interviewed for the podcast “Brain in a Vat” in an episode titled “Sexual Taboos.” In the interview, Kershnar claimed that adult sex with children is not morally wrong. When asked about the cutoff point for when adult sex with a child becomes impermissible, Kershnar did not concede that such activity was wrong even with a child as young as one year old. He responded to the question by saying, “The notion that it’s wrong, even with a one-year-old, is not quite obvious to me.” The argument that he articulated in the interview is that we let children make all sorts of decisions for themselves: they decide what to wear in the morning, what to eat for breakfast, etc. We don’t challenge their ability to give free and informed consent to those things. He argues that sex is no different and claims that there isn’t anything significant about sex that changes the standards for what counts as giving consent. Therefore, if a child seems to be a willing participant to a sex act with an adult, it is not morally wrong for the adult to engage in a sex act with the child.

A short clip from the video circulated on social media and the content of the interview soon got back to administrators at SUNY Fredonia. Kershnar was reassigned pending an investigation of the case. As part of an official statement, the President of SUNY Fredonia said the following,

SUNY Fredonia is aware of a video posted online involving one of its professors. The views expressed by the professor are reprehensible and do not represent the values of SUNY Fredonia in any way, shape or form. They are solely the professor’s views. The matter is being reviewed.

In response to the news that action might be taken against Kershnar, The Foundation for Individual Rights in Education (FIRE) crafted an open letter in defense of Kershnar’s academic freedom. At the time of this writing, the letter has 115 signatories. A significant majority of the signatories are male and include such powerful and prominent figures as Peter Singer, Alex Byrne, and Brian Leiter.

The main argument in support of Kershnar is that the tenure system protects academic freedom, and such freedom is crucial to the functioning of democracy as well as to the give-and-take of reasons and evidence that knowledge attainment requires. The system depends on the broadly liberal idea that bad arguments and ideas are best addressed in open conflict with the articulation of other, more compelling arguments and ideas. It is only when people are free to express all ideas openly and without fear of reprisal that we can understand, as individuals and as communities of knowers, which conclusions the evidence or argument supports.

Those defending Kershnar’s speech may well find it repugnant, but may defend it as a matter of procedure, not of substance. We have a history of harshly punishing people with ideas that diverge from the mainstream. On many occasions, those ideas have turned out to be accurate (or at least more accurate than the views that preceded them). Once we start picking and choosing the thought expressions that will be cause for punishment, the domain of the exchange of ideas falls under the control of whoever is in charge of the punishment. Everything may seem fine when one is in agreement with punishment norms, but winds shift, and one day it is likely that the norms will be controlled by very different people with very different values.

The current political context only makes defense of academic freedom more urgent. For example, seven states currently have laws on the books banning teaching Critical Race Theory in local schools. In an additional sixteen states, similar laws are working their way through the legislature. New waves of book bans are surging through the country. Many states are considering legislation designed to hold public school teachers and their lesson plans up to unprecedented levels of scrutiny, up to and including laws that require video cameras in the classroom and laws that allow for parents to sue teachers if they dislike the material teachers are presenting in their classrooms. At a time when education is under attack and the country is grappling with rampant anti-intellectualism, we can’t afford to whittle academic freedom away. Academic freedom is a bulwark against fascism.

Regardless of whether one finds the arguments for academic freedom compelling, it is clear that there are also strong arguments on the other side of the case. The first argument acknowledges the fact that academic freedom is under attack but raises a concern for how protecting Kershnar in this case might potentially make things much worse. Many states have significantly weakened the tenure system by making it easier to fire tenured professors and giving the power to do so to entities outside of the academic community. Some states are pursuing getting rid of tenure altogether. The tenure system is supposed to protect the free exchange of ideas, which sounds like a lofty goal until it is used as a justification to argue for the permissibility of child rape. When administrators defend even a case such as this on the grounds of academic freedom, it might weaken support for the whole concept among the population in general and may make getting rid of tenure politically easier for lawmakers who were already inclined in that direction. Contributing to the firepower in this regard is the fact that Kershnar seems to have made his career as a sophist, engaging in the kinds of pursuits — attempting to make the weaker argument the stronger — against which Socrates frequently and famously argued. People may simply fail to see the value of a system that protects such activity.

Second, the arguments that Kershnar is making in the podcast aren’t just bad arguments, they’re bad arguments in support of a repugnant and potentially dangerous conclusion. If people accept the conclusion on the basis of the arguments and were already inclined toward pedophilia to begin with, Kershnar’s claims may serve to empower them in their conviction that their behavior isn’t actually morally wrong, it’s just commonly viewed that way by society. This could potentially increase the number of children who are victims of sexual abuse.

Third, Kershnar’s argument, and the existence of so much support for his case by so many (mostly powerful male) signatories, is likely to make victims of childhood sexual assault feel unsupported and potentially unsafe. Beyond a doubt, some people who feel this way will be students and colleagues of Kershnar. The situation may create a toxic work environment for colleagues and a distracting and challenging learning environment for students. A significant number of people who feel uncomfortable in this environment will be women, since 1 in 9 women are victims of sexual abuse as children. The number of men who report being victims of sexual abuse as children is 1 in 53. There are reporting challenges here, but there is a legitimate concern that the circumstances created by Kershnar’s comments will be extremely uncomfortable for many female students and faculty members in particular. In the podcast, Kershnar explicitly challenges the idea that the risk of doing serious long term psychological harm is significant enough to make sex with children wrong. Students and colleagues will both feel misunderstood and be misunderstood, since Kershnar undermines the significant damage sexual abuse can do to a person’s life and well-being. All this is occurring in an environment which gave rise to the MeToo movement in response to concerns that sexual misconduct was not being taken seriously.

There are other cases with a similar distasteful flavor. In 2019, Indiana University Bloomington economics professor David Rasmussen was subjected to similar scrutiny for publicly arguing that women are destroying academia both in the capacity of students and professors. He argued that geniuses are overwhelmingly male, and that the production of geniuses is stifled as a result of women on campus. Some argue that cases like Kershnar’s and Rasmussen’s are ripe for critique as demonstrations of the shortcomings of Enlightenment Liberalism. A society that highly prizes individualistic values such as free speech and academic freedom above all others often does so at the expense of the well-being of traditionally oppressed groups like women and people of color. People frequently use their freedom of expression not only to make unconscionable generalizations about members of such groups, but also to advocate for policies that do active and substantive harm. The most vulnerable are left unprotected.

In the end, this is an unfortunate case with no easy answers.

October’s Harvest: Threats to Academic Freedom

photograph of narrow wood bridge surrounded by woods leading to open water

With the month of October barely underway, we have already seen two incidents at elite institutions of higher education that underscore the continuing threats to academic freedom from both the right and left. A Twitter mob convinced MIT to disinvite a distinguished professor of geophysics from speaking at the school due to his views about Diversity, Equity, and Inclusion (DEI) policies. And at Yale, a prominent history professor stepped down from leadership of a prestigious program when right-wing donors insisted on selecting members of a “board of visitors” that would advise on the appointments of program instructors.

After publicly announcing earlier this year that Professor Dorian Abbot, a geophysical scientist at the University of Chicago, would be delivering the prestigious John Carlson Lecture, MIT rescinded his invitation and cancelled the event. The reason? Abbot is a harsh critic of DEI policies, which encourage representation and participation of diverse groups of people in higher education, including through preferential hiring of faculty and evaluation of student applicants. In a recent Newsweek column, Abbot wrote that DEI “violates the ethical and legal principle of equal treatment” and “undermines the public’s trust in universities and their graduates.” Abbot proposed an alternative framework he called Merit, Fairness, and Equality whereby “university applicants are treated as individuals and evaluated through a rigorous and unbiased process based on their merit and qualifications alone.” Apparently, graduate students and faculty at both MIT and Chicago were so affronted by Abbot’s words that they organized a disinvitation campaign, which ultimately convinced the chair of MIT’s Department of Earth, Atmospheric and Planetary Science to de-platform Abbot.

For MIT’s part, the school says that it merely disinvited Abbot from giving the Carlson Lecture, a public outreach talk aimed, in part, at engaging local high school students. The university says it invited Abbot to campus to address fellow climate scientists about his research instead. Apparently, Abbot’s views about DEI make his climate science research unfit for consumption by the general public, but not by his fellow academics.

There are a number of troubling aspects to this episode. First, Abbot’s views about DEI are decidedly mainstream. According to a recent Gallup poll, 74% of U.S. adults oppose preferential hiring or promotion of Blacks. The Republican Party’s platform includes this line: “Merit and hard work should determine advancement in our society, so we reject unfair preferences, quotas, and set-asides as forms of discrimination.” If the nation’s institutions of higher education are to remain effective as providers of civic education, forums for political debate, and incubators of novel policy ideas, the views of most Americans and one of the two major political parties cannot be made verboten. Note carefully that in saying Abbot’s views are mainstream, I am not saying they are right. Rather, I am claiming that if universities want to make a significant epistemic contribution to the larger society, they cannot seal themselves off from views that have wide currency in the general public.

Second, having determined that Abbot’s scholarship would make a valuable contribution to MIT and the local community — something which they have a plenary right to do — faculty and administrators should not have allowed objections to his political views to outweigh or override that initial determination. When the free exchange of ideas is obstructed by political actors — be they government officials or political activists — academic life suffers. The political views of a vocal minority are no justification for suppressing scholarly exchange. Those who object to Abbot’s ideas have every right to strenuously protest them, but not to try to exclude him from an academic community that has already validated his worth as a scholar.

Finally, rescinding the invitation will undoubtedly embolden activists who seek to harness the power of social media to silence speakers whose views they deem harmful or offensive. It would have been better if Abbot had not been invited at all, if the alternative was to truckle to the heckler’s veto.

That’s the view from the left. But recent events amply demonstrate that academia has something to fear from the political right, as well. The Brady-Johnson Program in Grand Strategy at Yale University takes a select group of two dozen students and immerses them in classic texts of history and statecraft while also introducing them to a raft of high-profile guest instructors. The program was until recently led by historian Beverly Gage, and is underwritten by large donations from Nicholas Brady, a former U.S. Treasury secretary under presidents Reagan and H.W. Bush, and Charles Johnson, a mutual fund billionaire and leading Republican donor. A week after the 2020 presidential election, a professor who teaches in the program published an opinion article titled “How to Protect America From the Next Donald Trump.” According to Gage, this led Brady and Johnson to demand the creation of a five-member “board of visitors” that would advise on the appointments of instructors, pursuant to a 2006 donor agreement that had until then not been followed. Worse, the donors insisted that they could choose the board. Again according to Gage, Yale president Peter Salovey and Pericles Lewis, vice president for global strategy and vice provost for academic initiatives, ultimately caved to these demands. This caused Gage to resign, effective at the end of the year.

The day after The New York Times reported the story, Salovey released a letter to the faculty affirming Yale’s commitment to academic freedom and promising that he will give “new and careful consideration to how we can reinforce” that commitment. No word yet about plans for the board of visitors.

It is a foundational principle of academic freedom that scholars should be insulated from, to quote Fritz Machlup, those “fears and anxieties that may inhibit them from freely studying and investigating whatever they are interested in, and from freely discussing, teaching or publishing whatever opinions they have reached.” One source of such fears and anxieties is left-wing Twitter mobs; another is powerful donors who seek to steer teaching and research in a particular direction, often for ideological reasons. Freedom from political interference entails that faculty ought to be free to choose, in the absence of outside interference or pressure, both who gets to do teaching and research in the academic community and what they can research and teach. A board of visitors of the kind envisioned by Brady and Johnson, with members appointed by them and whose “advice” would be backed by the threat of pulling the fiscal plug on the program, is anathema to these principles.

Despite these stories, there is reason for optimism. As Matthew Yglesias pointed out, some surveys seem to indicate broad, and indeed increasing, American support for free speech, particularly among college graduates. This suggests that threats to free speech mostly stem from vocal or powerful minorities. But such compact, determined groups can wreak havoc. For example, the cause of prohibition was never supported by the majority of Americans, but the Anti-Saloon League and the voters it galvanized nevertheless managed to amend the Constitution to forbid the “manufacture, sale, or transportation of intoxicating liquors.” As the weather turns cold, faculty and administrators at our institutions of higher education must commit to thwarting a profounder chill.

Trump v. Facebook, and the Future of Free Speech

photograph of trump speech playing on phone with Trump's Twitter page displayed in the background

On July 7th, former President Donald Trump announced his intention to sue Facebook, Twitter, and Google for banning him from posting on their platforms. Facebook initially banned Donald Trump following the January 6th insurrection and Twitter and Google soon followed suit. Trump’s ban poses not only legal questions concerning the First Amendment, but also moral questions concerning whether or not social media companies owe a duty to guarantee free speech.

Does Trump have any moral standing when it comes to his ban from Facebook, Twitter, and Google? How can we balance the value of free expression with the rights of social media companies to regulate their platforms?

After the events of January 6th, Trump was immediately banned from social media platforms. In its initial ban, the CEO of Facebook, Mark Zuckerberg, offered a brief justification: “We believe the risks of allowing the President to continue to use our service during this period are too great.” Following Trump’s exit from office, Facebook decided to extend Trump’s ban to two years. Twitter opted for a permanent ban, and YouTube has banned him indefinitely.

Though this came as a shock to many, some argued that Trump’s ban should have come much sooner. Throughout his presidency, Trump regularly used social media to communicate with his base, at times spreading false information. While some found this communication style unpresidential, it arguably brought the Office of the President closer to the American public than ever before. Trump’s use of Twitter engaged citizens who might not have otherwise engaged with politics and even reached many who did not follow him. Though there is value in allowing the president to authentically communicate with the American people, Trump’s use of the social media space has been declared unethical by many; he consistently used these communiques to spread falsehoods, issue personal attacks, campaign, and fund-raise.

But regardless of the merits of Trump’s lawsuit, it raises important questions regarding the role that social media platforms play in modern society. The First Amendment, and its protections regarding free speech, only apply to federal government regulation of speech (and to state regulation of speech, as incorporated by the 14th Amendment). This protection has generally not extended to private businesses or individuals who are not directly funded or affiliated with the government. General forums, however, such as the internet, have been considered a “free speech zone.” While located on the internet, social media companies have not been granted a similar “free speech zone” status. The Supreme Court has acknowledged that the “vast democratic forums of the Internet” serve an important function in the exchange of views, but it has refused to extend the responsibility to protect free speech beyond state actors, or those performing traditional and exclusive government functions. The definition of state actors is nebulous, but the Supreme Court has drawn hard lines, recently holding that private entities which provide publicly accessible forums are not inherently performing state actions. Recognizing the limits of the First Amendment, Trump has attempted to bridge the gap between private and state action in his complaint, arguing that Facebook, Twitter, and Google censored his speech due to “coercive pressure from the government” and therefore their “activities amount to state action.”

Though this argument may be somewhat of a stretch legally, it is worth considering whether or not social media platforms play an important enough role in our lives to consider them responsible for providing an unregulated forum for speech. Social media has become such a persistent and necessary feature of our lives that Supreme Court Justice Clarence Thomas has argued that they should be considered “common carriers” and subject to heightened regulation in a similar manner to planes, telephones, and other public accommodations. And perhaps Justice Thomas has a point. About 70% of Americans hold an active social media account and more than half of Americans rely upon social media for news. With an increasing percentage of society not only using social media, but relying upon it, perhaps social media companies would be better treated as providers of public accommodations rather than private corporations with the right to act as gatekeepers to their services.

Despite American’s growing dependence on social media, some have argued that viewing social media as a public service is ill-advised. In an article in the National Review, Jessica Melugin argues that there is not a strong legal nor practical basis for considering social media entities as common carriers. First, Melugin argues that exclusion is central to the business model of social media companies, who generate their revenue from choosing which advertisements to feature to generate revenue. Second, forcing social media companies to allow any and all speech to be published on their platforms may be more akin to compelling speech rather than preventing its suppression. Lastly, social media companies, unlike other common carriers, face consistent market competition. Though Facebook, Instagram, and Twitter appear to have taken over for now, companies such as Snapchat and TikTok represent growing and consistent competition.

Another consideration which weighs against applying First Amendment duties to social media companies is the widespread danger of propaganda and misinformation made possible by their algorithmic approach to boosting content. Any person can post information, whether true or false, which has the potential to reach millions of people. Though an increasing amount of Americans rely on social media for news, studies have found that those who do so tend to be less informed and more exposed to conspiracies. Extremists have also found a safe-haven on social media platforms to connect and plan terrorist acts. With these considerations in mind, allowing social media companies to limit the content on their platforms may be justified in combating the harmful tendencies of an ill-informed and conspiracy-laden public and perhaps even in preventing violent attacks.

Despite the pertinent moral questions posed by Trump’s lawsuit, he is likely to lose. Legal experts have argued that Trump’s suit “has almost no chance of success.” However, the legal standing of Trump’s claims do not necessarily dictate their morality, which is equally worthy of consideration. Though Trump’s lawsuit may fail, the role that social media companies play in the regulation of speech and information will only continue to grow.

Revenge Porn, Public Interest, and Free Speech

image of camera lens blended with an image of an eye

After resigning from office in 2019, former California Representative Katie Hill has been dragged back in the news. Hill’s lawsuits against the Daily Mail and RedState for publishing nonconsensual pornography were recently dismissed, and, to add insult to injury, she was ordered to pay more than $200,000 in defendants’ legal fees. Not only was Hill denied the possibility of being made whole, but was also forced to pay for the “privilege of them publishing nude photos … obtained from an abuser.”

How did we get here? Why is Katie Hill continuing to foot the bill for being made the target of “revenge porn”? How could the distribution of others’ private sexual images without their consent ever be protected by the First Amendment? Shouldn’t respect for individual privacy trump others’ interest in publicizing such intimate information?

In 2019, news broke that Hill and her then-husband had been involved in an improper relationship with a junior employee. Texts surfaced suggesting one of Hill’s campaign workers was not only engaged in a sexual relationship, but that she might also have been abused. It was further alleged that Hill was romantically involved with a congressional aide. RedState and the Daily Mail added fuel to the fire by publishing a number of suggestive and salacious photos. With rumors of a media trove containing hundreds of additional pictures and texts and a congressional probe just beginning, Hill resigned.

These revelations were no small thing; they suggested more than a mere lapse in judgment. The asymmetric power relation between the would-be congresswoman and a subordinate demonstrated a failure of responsibility and constituted an abuse of power. These charges must be taken seriously.

But the question of whether Hill’s relationship with a campaign staffer was improper (it was) should be kept separate from the question of whether the Daily Mail and RedState were acting in the public interest by choosing to publish nonconsensual pornography.

Judge Yolanda Orozco, who dismissed Hill’s case, claimed that the media outlets’ circulation of those nude photographs served a compelling public interest in questioning Hill’s “character, judgment and qualifications for her congressional position.” The electorate, she argued, deserved to bear witness to their representative’s apparent vices, and these news organizations were merely serving a democratic function in satisfying that need. The photos “allegedly depicted [Hill] with a campaign staffer whom she was alleged to have had a sexual affair with and appeared to show [Hill] using a then-illegal drug and displaying a tattoo that was controversial because it resembled a white supremacy symbol.” These, Orozco insists, are important details that the public has a right to know, or, at least, that news organizations have an overriding interest in disseminating.

This reasoning, however, appears to provide an incredibly broad read of what qualifies as a “matter of public concern.” Indeed, it seems to offer a blank check to any gossip or tabloid journalism that people might be able to put to good (political) use. (Consider, for example, the recently leaked video of New York City Council candidate Zack Weiner.) This justification does more than simply make the relaying of private information an important social good. Instead, Orozco’s position suggests that it is people’s feelings about the information, not the legal relevance of the information itself, which should determine the permissibility of sharing revenge porn. Whatever distaste or revulsion an image might provoke is enough to warrant overturning an individual’s right to legal protection against this kind of invasion of privacy, harassment, and sexual violence.

Further, according to Judge Orozco’s ruling, supplying a written description of the photos’ content instead of posting the photos themselves would fail to adequately capture or sufficiently communicate the level of depravity exhibited by the actual image. Instead, “the public should be permitted to determine the importance or relevance … for itself.” Again, this suggests that the ambiguity attending any likeness (inevitably lacking context) is just as important as (if not more important than) the cold, hard facts. A picture is worth a thousand words, and it’s meaning should lie with the beholder.

Note, however, that the photos’ publication is defended on the grounds that they provide evidence of Hill lacking moral fiber, not proof of the allegations leveled against her. The photograph which includes a staffer depicts a previous relationship that occurred during the campaign — a consensual relationship that was surely unethical, but not illegal, and to which Hill admitted — while the public value of the other photos centers on Hill holding a bong and sporting a questionable tattoo.

The publication of these photos, then, does little else but invite the viewer to pass judgment according to arbitrary standards of decency and decorum that amounts to nothing more than moralizing and slut-shaming. (Consider, for example, commentators’ judgments that the photos are revealing, “bespeaking a kind of hedonism that at least some voters may view as a character defect.”)

But our recognition of this unique kind of harm is precisely why revenge porn laws exist in the first place. Their purpose is to restrict the freedom of bad actors in recording and distributing salacious materials against their victims’ will. The publicizing of nonconsensual pornography weaponizes information by bringing public opinion down on the head of victims and branding them with an unerasable social stigma. Given the limitations to genuine redress, the law must have sufficient teeth to act as a deterrent capable of discouraging other would-be attackers. The law operates with the understanding that there is no putting the genie back in the bottle once a leak occurs.

The language of “revenge porn” is often criticized for focusing our attention on the perpetrator’s mindset as opposed to the damage done to victims. Surely, we shouldn’t concentrate our efforts on divining whether spite was the overwhelming motivation behind a perpetrator choosing to distribute illicit images. What matters is the unique kind of sexual violence that is being threatened. But, in this particular case, the context might prove important. First, the photos were taken without Hill’s knowledge (or consent) and distributed by a jilted and “abusive” ex-husband in the midst of a messy divorce. But the leak’s publication also looks to be the work of a concerted effort by Hill’s political opponents. As Quinta Jurecic of Lawfare notes, this may be the first known instance where a “politically aligned publication has published an explicit photo of an opposition politician for apparent political gain.” In fact, Politico reported that the person responsible for posting the photos used the same platform to publicly advocate for the Republican running for Hill’s vacated seat.

Despite these troubling circumstances, commentators have suggested that Hill simply “needs to take the L and move on.” Anyone who chooses to thrust herself into the public eye sacrifices the right to keep any detail of her private life hidden from view. Everything she does becomes a public concern. Ultimately, ours is a society that prioritizes the community’s right to know over individuals’ right not to disclose, privileges one’s freedom to do rather than others’ right to impede, and chafes much more at government overreach than at the paparazzi’s prying eyes. Still, it seems backwards to conclude those occupying the spotlight are less in need of this protection rather than more.

Should Speech Have Consequences?

image of speech bubbles surrounding iphone outline

Particularly in left-leaning circles, it has become fashionable to say that those who are targeted for various kinds of sanctions for their objectionable speech — unfriending, blocking, doxing, university investigations, terminations, threats of bodily harm or death, and so forth — are merely suffering the justifiable consequences of speaking in ways that harm or offend others. This was the line taken by many commentators concerning the recent controversy at the Journal of the American Medical Association (JAMA). There, an editor of the journal said in a podcast that “many people like myself are offended by the implication that we are somehow racist.” The outcry that followed led to the resignation of the journal’s editor-in-chief. Speech, indeed, has consequences.

We might put the principle as follows: “Freedom of speech does not mean freedom from the consequences.” While this principle seems sound, in this column I want to explore some of its implications. It turns out, I think, that we have many reasons not to sanction others for their speech, however offensive or harmful it may be.

The first question we should ask about social sanctions against speech is whether we ought to think of them as forward- or backward-looking. In other words: are they justified because they are deserved by the speaker (backward-looking) or are they justified because of the beneficial effects of sanctioning (forward-looking)? Here are some familiar reasons why we ought to think of them as forward-looking.

First and foremost, any system of sanctions requires a principle of proportionality: a principle that tells us which punishment “fits” a given crime. Does a racist slur deserve a cold shoulder or a death threat? Beyond simply invoking our moral intuitions, it seems that reason has little to say about what a particular transgression deserves. By contrast, forward-looking considerations give us some rational metric by which to judge the severity of the punishment based at least in part on the nature of the “crime” and the nature of the “criminal.” We don’t punish shoplifters with death, for example, because this would give them the perverse incentive to do worse things than shoplifting, and because shoplifters are more likely to be reformed by relatively light punishments than by onerous ones.

Second, there are well-known puzzles about whether people are morally responsible in the desert-implying sense. We can bypass all of these problems by justifying sanctions not on the basis of desert, but on the basis of the effects of the sanctions.

Why, then, sanction speech? Most obviously, sanctioning speech is a form of deterrence: say this, and you will suffer bad consequences. In this way, the amount of bad speech is reduced. Relatedly, sanctioning is a way of encouraging or promoting the adoption of certain views. If the assertion that p is sanctioned, this will encourage the adoption of the belief that not p. Secondly, sanctioning speech has a signaling function: it means that certain kinds of speech are not to be tolerated, and it tells those who are offended or harmed by the speech that their suffering matters. Finally, it may have a reforming effect: the sanctioned person might, by suffering consequences for his speech, come to understand why that speech is not to be tolerated.

These are the benefits of sanctioning speech. What are the drawbacks? Sanctioning speech undoubtedly has a chilling effect. After all, we listed its chilling effect as one of its benefits! If we could all agree on a narrow category of speech that is sanction-worthy, perhaps this effect would be entirely beneficial. But it turns out, I think, that when society adopts the norm that allows sanctioning any offensive or harmful speech, this empowers people to sanction every kind of speech they don’t like. And in a pluralistic society, there is no agreement about what kind of speech is acceptable. This inevitably leads to instances of benign speech, like one’s expression of political preferences, being sanctioned. This might be why, according to a recent poll, 62% of Americans say they are afraid to express some political beliefs. It is noteworthy that this feeling crosses party lines. But democracies require speech in order to function properly; democratic deliberation is possible only when people are able not only to have opinions, but to voice them to their fellow citizens. The cost of allowing the widespread sanctioning of speech, then, is weaker democratic deliberation.

Nor does sanctioning eliminate the views it aims at effacing from public discussion. Rather, the effect of sanctioning, particularly if harsh, is often to cause those who hold the views to double down on them and to look for ways to have those views affirmed by others. Far from deterring these views, then, burdensome sanctioning may in many cases encourage their secret proliferation.

Sanctioning is also not a very effective tool for educating others or getting them to adopt certain views. In the JAMA case, it seems doubtful that anyone who does not already believe in the existence of systemic racism in medicine will adopt that belief simply because someone has been sanctioned for denying it. Sanctions are not arguments; they are in fact the opposite.

In addition to the costs of sanctioning speech, we ought to consider the benefits of tolerating speech. Expression is itself a good for the speaker, insofar as it is the exercise of their autonomy. So, tolerating speech contributes to the well-being of speakers. And as J.S. Mill pointed out, in most matters we are in a state of at least partial ignorance, so tolerating the free play of ideas can help us get closer to the truth. Furthermore, even in those areas where we are not ignorant, the free play of ideas can get us closer to knowledge of the truth by sharpening our reasons for holding our beliefs.

It is often said that toleration of offensive and harmful speech protects the powerful. Like all generally applicable principles, this is true: the universal prohibition on murder protects Elon Musk. But like that prohibition, the toleration of free speech can also protect the weak. The peaceful protests against police violence that were the hallmark of 2020 were possible only in a country where a content neutral principle of free speech is respected not only by government but by the vast majority of citizens, even those vehemently opposed to the aims of Black Lives Matter. Conversely, speech codes and other restrictions have often been used to oppress minority groups. A speech code at the University of Michigan that was struck down by a federal court in 1989 was used to punish one student for stating that Jewish people use the Holocaust to justify Israel’s policy towards the Palestinians. Another speech code complaint was lodged against a student who said that “he had heard that minorities had a difficult time in the course and that he had heard they were not treated fairly.”

One of the strengths of consequentialism is that it teaches us that everything in life is a trade-off or a balancing act among competing values. Sometimes, surely, there will be strong reasons to sanction a particular speech-act or -acts. For example, speech that is sufficiently frequent and malicious can create a hostile environment. In many cases, however, people are currently being strongly sanctioned for stray remarks or for offensive speech from a long time ago. As in the JAMA case, they are also being sanctioned for departing from the political orthodoxy of their community by, for example, questioning the existence of systemic racism. In these sorts of cases, the benefits of sanctioning are slight, and the drawbacks great. Sanctioning will create an environment in which people feel scrutinized for every indiscretion, and as a result, they will self-censor. Self-censorship is an intrinsic harm, and is also detrimental to the search for truth and the communication of political views, both essential in a functioning democracy. Finally, sanctioning will alienate the sanctioned; far from educating them or getting them and others to change their views, it will cause a defensive reaction that leaves their objectionable views intact, and perhaps more popular due to the perception that they are being suppressed.

Toleration of offensive or harmful speech comes with costs. So does sanctioning such speech. The question is whether, on the whole, the benefits of sanctioning outweigh the costs. In many contemporary cases, I would argue that the answer is no.

The Double-Edged Sword of “Free Speech”

photograph of mic on graduation stage before empty chairs

On June 2nd, The Christian Post reported the story of Savannah Lefler, a high school valedictorian in Michigan whose “Christianized” honors night speech was facing censorship by school officials; after a legal nonprofit urged administrators to reconsider, Lefler was informed that she will be allowed to deliver her prepared remarks as desired. According to First Liberty, a law firm dedicated “to defending religious liberty for all Americans” who wrote in Lefler’s defense, “Too often, we have seen well-meaning school officials thinking they are complying with the Establishment Clause mistakenly go too far and censor the private speech of students, violating students’ rights under the Free Speech Clause.” (First Liberty has also defended other high school graduates from Pennsylvania and Michigan in similar cases.)

One day later, on June 3rd, The Christian Post reported the story of Paxton Smith, a high school valedictorian in Texas who delivered a graduation speech criticizing the so-called “heartbeat bill” recently signed by Governor Greg Abbott; rather than delivering the pre-approved remarks she had written and submitted, Smith spoke for roughly three minutes against Senate Bill 8 that, among other restrictions, bans abortions performed after six weeks of fetal development. According to Smith in her surprise, unapproved commentary, “I cannot give up this platform to promote complacency and peace, when there is a war on my body and a war on my rights.”

Rather than discuss the details of religious freedom or the debate about legal abortion in this article, I’m interested in thinking about what happened on June 4th — or, more accurately, what didn’t happen. As I comb through the recent archives of several large-scale news media organizations, many of them are only reporting about one of these two high school graduates with controversial speeches.

On one hand, as of this writing, sites like Fox News and Christianity Daily are promoting Lefler’s story, including excerpts from First Liberty’s letter to the school; in one of several articles it ran on the subject, Fox News also includes multiple excerpts of the religious language from Lefler’s draft and ends with additional comments from First Liberty on Lefler’s constitutional right to free speech. (In a similar — though inverted — fashion, NewsMax and the National Review have published pieces criticizing Smith while remaining silent about Lefler.)

On the other hand, sites like CNN and The New York Times are promoting Smith’s story, including by linking to the viral video of her graduation speech; the headline for the June 4th article from CBS News reads “Dallas high school valedictorian scraps speech, makes impassioned plea for abortion rights” and ends with a statement from Smith’s school district that reads, “The content of each student speaker’s message is the private, voluntary expression of the individual student and does not reflect the endorsement, sponsorship, position or expression of the District or its employees.” (As far as I could tell, no large-scale news outlets who have remained silent about Smith have also published opinion pieces critical of Lefler.)

It might well be true that no single news source could hope to comprehensively report on every newsworthy event, so it might be unfair to imply that Fox News or CNN is doing something wrong by only reporting on one of these stories. It might also be true that one (or both) of these stories is not actually “newsworthy” (in a broadly agreeable sense) — certainly there are differences between what Lefler and Smith did, and we might not want to oversimplify those distinctions for the sake of an easy comparison.

But it seems like defenders of “free speech” (as a blunt principle) are required to support both Lefler and Smith for exercising their right to express their private beliefs in a public forum.

John Stuart Mill is perhaps one of the most famous defenders of an inherent value in free speech; in his 1859 essay On Liberty, Mill argues that opinions are a kind of public good and the absolutely free exchange of differing opinions is the best way to promote ideal outcomes for the epistemic community. No one can hope to know all that there is to know on the complex topics relevant to social life, so we must rely on each other to raise alternate perspectives for our consideration; as he says, “Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right.” In short, because he also thought that false opinions would naturally give way to true ones, the more opinions we have on the table, the more likely Mill thought it would be that we would discover the truth.

Furthermore, because he found value in the process of inquiry itself, Mill saw absolutely free speech as an opportunity for the development of individual virtue; as he explains:

“No one can be a great thinker who does not recognise, that as a thinker it is his first duty to follow his intellect to whatever conclusions it may lead. Truth gains more even by the errors of one who, with due study and preparation, thinks for himself, than by the true opinions of those who only hold them because they do not suffer themselves to think.”

Akin to common refrains today about “doing your own research” and “thinking for yourself,” Mill believed that free speech was a necessary precondition for an optimal environment to promote intellectual activity (and, by extension, epistemic virtue).

So, suppose that Moe has a social media account and shares on it a story from Fox News about Savannah Lefler’s speech nearly being censored; if Moe believes that this is simply a matter of Lefler’s freedoms being threatened, and he also believes that justice was indeed upheld in Lefler’s case, then he should (upon pain of inconsistency) also be proud of Paxton Smith exercising those same freedoms in her speech. Similarly, if Calvin believes that Smith was doing something honorable by speaking freely (despite going off-script), then he might also be required to view Lefler in a similar light.

If, however, Moe or Calvin only feel like one of these two high school valedictorians was actually doing something praiseworthy, then it must be for reasons other than the value of free speech. This is, of course, as unproblematic as it is likely (indeed, Moe might well approve of public religious speech or not approve of outspoken abortion defenses while Calvin believes the opposite on both counts). In a society where people enjoy the freedom to hold and express such different opinions, neither Moe nor Calvin is clearly doing anything inappropriate by disagreeing on these matters.

But it does seem inappropriate (or, at the very least, confusing) to wave the concept of “free speech” around as a defense of ideas that others might criticize. As Mill stresses, Lefler and Smith being free to express their ideas does not automatically make those ideas correct — indeed, their free expression (on Mill’s view) is one of the best ways to recognize which one (if either) is actually false.

For clarity’s sake, it would be better for Moe, Calvin, and everyone to just say what they truly support and what positions they believe to be correct, rather than hiding behind the double-edged sword of “free speech.”

“Fake News” Is Not Dangerously Overblown

image of glitched "FAKE NEWS" title accompanied by bits of computer code

In a recent article here at The Prindle Post, Jimmy Alfonso Licon argues that the hype surrounding the problem of “fake news” might be less serious than people often suggest. By pointing to several recent studies, Licon highlights that concerns about social standing actually prevent a surprisingly large percentage of people from sharing fake news stories on social media; as he says, “people have strong incentives to avoid sharing fake news when their reputations are at stake.” Instead, it looks like many folks who share fake news do so because of pre-existing partisan biases (not necessarily because of their gullibility about or ignorance of the facts). If this is true, then calls to regulate speech online (or elsewhere) in an attempt to mitigate the spread of fake news might end up doing more harm than good (insofar as they unduly censor otherwise free speech).

To be clear: despite the “clickbaity” title of this present article, my goal here is not to argue with Licon’s main point; the empirical evidence is indeed consistently suggesting that fake news spreads online not simply because individual users are always fooled into believing a fake story’s content, but rather because the fake story:

On some level, this is frustratingly difficult to test: given the prevalence of expressive responding and other artifacts that can contaminate survey data, it is unclear how to interpret an affirmation of, say, the (demonstrably false) “immense crowd size” at Donald Trump’s presidential inauguration — does the subject genuinely believe that the pictures show a massive crowd or are they simply reporting this to the researcher as an expression of partisan allegiance? Moreover, a non-trivial amount of fake news (and, for that matter, real news) is spread by users who only read a story’s headline without clicking through to read the story itself. All of this, combined with additional concerns about the propagandistic politicization of the term ‘fake news,’ as when politicians invoke the concept to avoid responding to negative accusations against them, has led some researchers to argue that the “sloppy, arbitrary” nature of the term’s definition renders it effectively useless for careful analyses.

However, whereas Licon is concerned about potentially unwarranted threats to free speech online, I am concerned about what the reality of “fake news” tells us about the nature of online speech as a whole.

Suppose that we are having lunch and, during the natural flow of our conversation, I tell you a story about how my cat drank out of my coffee cup this morning; although I could communicate the details to you in various ways (depending on my story-telling ability), one upshot of this speech act would be to assert the following proposition:

1. My cat drank my coffee.

To assert something is to (as explained by Sandford Goldberg) “state, report, contend, or claim that such-and-such is the case. It is the act through which we tell others things, by which we inform an audience of this-or-that, or in which we vouch for something.” Were you to later learn that my cat did not drink my coffee, that I didn’t have any coffee to drink this morning, or that I don’t live with a cat, you would be well within your rights to think that something has gone wrong with my speech (most basically: I lied to you by asserting something that I knew to be false).

The kinds of conventions that govern our speech are sometimes described by philosophers of language as “norms” or “rules,” with a notable example being the knowledge norm of assertion. When I assert Proposition #1 (“My cat drank my coffee”), you can rightfully think that I’m representing myself as knowing the content of (1) — and since I can only know (as opposed to merely believe) something that is true, I furthermore am representing (1) as true when I assert it. This, then, is one of the problems with telling a lie: I’m violating how language is supposed to work when I tell you something false; I’m breaking the rules governing how assertion functions.

Now to add a wrinkle: what if, after hearing my story about my cat and coffee, you go and repeat the story to someone else? Assuming that you don’t pretend like the story happened to you personally, but you instead explain how (1) describes your friend (me) and you’re simply relaying the story as you heard it, then what you’re asserting might be something like:

2. My friend’s cat drank his coffee.

If this other person you’re speaking to later learns that I was lying about (1), that means that you’re wrong about (2), but it doesn’t clearly mean that you’re lying about (2) — you thought you knew that (2) was true (because you foolishly trusted me and my story-telling skills). Whereas I violated one or more norms of assertion by lying to you about (1), it’s not clear that you’ve violated those norms by asserting (2).

It’s also not clear how any of these norms might function when it comes to social media interaction and other online forms of communication.

Suppose that instead of speaking (1) in a conversation, I write about it in a tweet. And suppose that instead of asserting (2) to someone else, you simply retweet my initial post. While at first glance it might seem right to say that the basic norms of assertion still apply as before here, we’ve already seen (with those bullet points in the second paragraph of this article) that fake news spreads precisely because internet users seemingly aren’t as constrained in their digital speech acts. Maybe you retweet my story because you find it amusing (but don’t think it’s true) or because you believe that cat-related stories should be promoted online — we could imagine all sorts of possible reasons why you might retransmit the (false) information of (1) without believing that it’s true.

Some might point out that offline communication can often manifest some of these non-epistemic elements of communication, but C. Thi Nguyen points out how the mechanics of social media intentionally encourage this kind of behavior. Insofar as a platform like Twitter gamifies our communication by rewarding users with attention and acclaim (via tools such as “likes” and “follower counts”), it promotes information spreading online for many reasons beyond the basic knowledge norm of assertion. Similarly, Lucy McDonald argues that this gamification model (although good for maintaining a website’s user base) demonstrably harms the quality of the information shared throughout that platform; when people care more about attracting “likes” than communicating truth, digital speech can become severely epistemically problematic.

Now, add the concerns mentioned above (and by Licon) about fake news and it might be easy to see how those kinds of stories (and all of their partisan enticements) are particularly well-suited to spread through social media platforms (designed as they are to promote engagement, regardless of accuracy).

So, while Licon is right to be concerned about the potential over-policing of online speech by governments or corporations interested in shutting down fake news, it’s also the case that conversational norms (for both online and offline speech) are important features of how we communicate — the trick will be to find a way to manifest them consistently and to encourage others to do the same. (One promising element of a remedy — that does not approximate censorship — involves platforms like Twitter explicitly reminding or asking people to read articles before they share them; a growing body of evidence suggests that these kinds of “nudges” can help promote more epistemically desirable online norms of discourse in line with those well-developed in offline contexts.)

Ultimately, then, “fake news” seems like less of a rarely-shared digital phenomenon and more of a curiously noticeable indicator of a more wide-ranging issue for communication in the 21st century. Rather than being “dangerously overblown,” the problem of fake news is a proverbial canary in the coal mine for the epistemic ambiguities of online speech acts.

Is Fake News Dangerously Overblown?

photograph of smartphone displaying 'Fake News' story

“Censorship laws are blunt instruments, not sharp scalpels. Once enacted, they are easily misapplied to merely unpopular or only marginally dangerous speech.”

—Alan Dershowitz, Finding, Framing, and Hanging Jefferson: A Lost Letter, a Remarkable Discovery, and Freedom of Speech in an Age of Terrorism

Fake news, false or misleading information presented as though it’s true, has been blamed for distorting national politics in the United States and undercutting the faith that citizens place in elites and institutions — so much so that Google has recently stepped in to provide a tool to help users avoid being hoodwinked. It looks plausible, at first glance, that fake news is a widespread problem; if people can be fooled into thinking misleading or false information is genuine news, their attitudes and beliefs about politics and policy can be influenced for the worse. In a functioning democracy, we need citizens, and especially voters, to be well-informed — we cannot have that if fake news is commonplace.

A recent study found political polarization — left, right, or center — to be the primary psychological motivation behind people sharing fake news. It seems we aren’t driven by ignorance, but vitriol for one’s political opponents. It isn’t a matter of folks being fooled by political fictions because they lack knowledge of the salient subject matter, say, but rather that people are most inclined to share fake news when it targets political adversaries whom they hate. And this aligns with what we already know about the increasing polarization in American politics: that it’s becoming increasingly difficulty for people in different political parties, notably Republicans and Democrats, to agree on issues that used to be a matter of bipartisan consensus (e.g., a progressive tax structure).

In the face of the (alleged) increasing threat from fake news, some have argued we need stronger intervention on the part of tech companies that is just shy of censorship — that is, fake news is parasitic on free speech, and can perhaps only be controlled by a concerted legal effort, along with help from big technology companies like Facebook and Google.

But perhaps the claim that fake news is widespread is dangerously overblown. How? The sharing of fake news is less common than we are often led to believe. A study from last year found that

“[although] fake news can be made to be cognitively appealing, and congruent with anyone’s political stance, it is only shared by a small minority of social media users, and by specialized media outlets. We suggest that so few sources share fake news because sharing fake news hurts one’s reputation … and that it does so in a way that cannot be easily mended by sharing real news: not only did trust in sources that had provided one fake news story against a background of real news dropped, but this drop was larger than the increase in trust yielded by sharing one real news story against a background of fake news stories.”

There are strong reputation incentives against sharing fake news — people don’t want to look bad to others. (Of course, the researchers also acknowledge the same incentives don’t apply to anonymous individuals who share fake news.) Humans are a cooperative species that rely on help from others for survival — and so it matters how others view us. People wouldn’t want to cooperate with someone with a bad reputation, thus most people will track how they are seen by others. We want to know those we cooperate with have a good reputation; we want them to be sufficiently trustworthy and reliable since we rely on each other for basic goods. As other researchers explain,

“[Humans] depend for their survival and welfare on frequent and varied cooperation with others. In the short run, it would often be advantageous to cheat, that is, to take the benefits of cooperation without paying the costs. Cheating however may seriously compromise one’s reputation and one’s chances of being able to benefit from future cooperation. In the long run, cooperators who can be relied upon to act in a mutually beneficial manner are likely to do better.”

Of course, people sometimes do things which aren’t in their best interests — taking a hit to one’s reputation is no different. The point though is that people have strong incentives to avoid sharing fake news when their reputations are at stake. So we have at least some evidence that fake news is overblown; people aren’t as likely to share fake news, for reputational reasons, than it may appear given the amount of attention the phenomenon of fake news has garnered in the public square. This doesn’t mean, of course, that there isn’t a lot of fake news in circulation on places like, say, social media — there could be substantial fake news shared, but only by a few actors. Moreover, the term ‘fake news’ is often used in a sloppy, arbitrary way — not everything called ‘fake news’ is fake news. (Former President Trump, for example, would often call a story ‘fake news’ if it made him look bad, even if the story was accurate.)

Overstating the problem fake news represents is also troubling as it encourages people to police others’ speech in problematic ways. Actively discouraging people from sharing ‘fake news’ (or worse, silencing them) can be a dangerous road to traverse. The worry is that just as former President Trump did to journalists and critics, folks will weaponize the label ‘fake news’ and use it against their political enemies. While targeting those who supposedly share fake news may prevent misinformation, often it will be used to suppress folks who have unorthodox or unpopular views. As the journalist Chris Hedges observed,

“In late April and early May the World Socialist Web Site, which identifies itself as a Trotskyite group that focuses on the crimes of capitalism, the plight of the working class and imperialism, began to see a steep decline in readership. The decline persisted into June. Search traffic to the World Socialist Web Site has been reduced by 75 percent overall. And the site is not alone. … The reductions coincided with the introduction of algorithms imposed by Google to fight ‘fake news.’ Google said the algorithms are designed to elevate ‘more authoritative content’ and marginalize ‘blatantly misleading, low quality, offensive or downright false information.’ It soon became apparent, however, that in the name of combating ‘fake news,’ Google, Facebook, YouTube and Twitter are censoring left-wing, progressive and anti-war sites.”

Perhaps the phenomenon of fake news really is as bad as some people say — though the evidence suggests that isn’t the case. In any event, we shouldn’t conclude from this that fake news isn’t a problem at all; we may need some form of policing that, while respecting freedom of expression, can empower voters and citizens with tools to allow them to avoid, or at least identify, fake news. But we can acknowledge both the need for fake news oversight and the need to significantly curtail that power.

Justice for All?: William Kelly and Kyle Rittenhouse

photograph of police officer with blurred civilians in the background

Last week, a police officer was fired over the details of an anonymous donation he made. Norfolk Police Lieutenant William Kelly contributed $25 to a legal defense fund for Kenosha shooting suspect Kyle Rittenhouse last September. That donation was accompanied by a message:

“God bless. Thank you for your courage. Keep your head up. You’ve done nothing wrong. Every rank and file police officer supports you. Don’t be discouraged by actions of the political class of law enforcement leadership.”

Kelly’s donation was anonymous and only made public following a security breach of Christian crowdfunding website GiveSendGo when data was shared with and circulated by Distributed Denial of Secrets and later published by The Guardian.

In the wake of his firing, GiveSendGo has started a fundraising campaign for Kelly. Co-founder Heather Wilson argues that “Regardless of how you feel regarding Kyle Rittenhouse, the fact is that Mr. Kelly’s individual rights have been grossly violated.” His donation “wasn’t against the law, but a criminal hacker group and a biased media outlet decided that was enough to make an example of him.”

This particular framing conforms to a broader (misleading) narrative regarding cancel culture’s all-out assault on individual rights. The story is presented by some as the obvious overreach of the progressive thought police. Kelly, these voices claim, is being persecuted merely for holding private, personal opinions that a powerful bunch have deemed distasteful. Woke mob rule has conspired once again to force the hand of another institution to cut ties with a controversial figure or risk being tarred with the same brush. What was once a call for boycott or an urging to deplatform has transformed into something much bigger. This isn’t a mere public shaming; Kelly’s dismissal highlights the serious threat to professional livelihood: an 18-year veteran and the second-highest ranking officer in the Norfolk Police Department lost his job in less than 72 hours.

Given the situation, labor lawyers like Ray Hogge have suggested that the firing was “inappropriate and illegal.” Kelly’s dismissal is a violation of his rights of speech and association. As a free citizen, Kelly is at liberty to support any charitable cause he chooses, regardless of whether city leaders approve. Employers shouldn’t be in the business of picking and choosing the values their employees can espouse. And this should be especially true in the case of a private, off-duty communication between friends.

The trouble is that Mr. Kelly’s rights are not the only rights at issue. His interests must be weighed against the state’s interest in delivering impartial justice for us all. Kelly’s case is more than just a matter of bad optics or a squeamish politician rolling over to avoid backlash from a mob spoiling for a fight. This is a state official countermanding the expressed purpose and obligations of the post he serves a post that sometimes requires the use of deadly force. Kelly’s words give us reason to question whether he can adequately execute the functions of his office.

Even out of uniform, officers have a duty to uphold public image and not engage in activities that might erode respect for the badge. As Police Chief Larry D. Boone made clear,

“A police department cannot do its job when the public loses trust with those whose duty is to serve and protect them. We do not want perceptions of any individual officer to undermine the relations between the Norfolk Police Department and the community.”

The effect Kelly’s position as an officer of the law has on this speech act (even in private as a public citizen) appears inescapable (for discussion see A.G. Holdier’s “Pastor Fritts, the First Amendment, and Public and Private Reason”). His incidental use of his police department email in making the donation helps to highlight the trouble: Lt. Kelly is incapable of speaking on this matter while wearing a different hat. A police officer expressing support for a vigilante (publicly or privately) and suggesting that outlaw is above the law is fundamentally at odds with the sworn duty to protect and serve. It betrays an indifference to the law he is meant to uphold and to the exclusive position that he occupies. It confers legitimacy on some while denying it to others and fails to discourage us from taking the law into our own hands.

But there remains much that needs to be settled. Rittenhouse only stands accused and has pleaded not guilty on the basis of self-defense; the jury is still out. Unfortunately, this fact means that Kelly’s endorsement is more egregious, not less. Choosing to support a suspect before his day in court is a problematic stance for law enforcement to take. The police shouldn’t stand as judge, jury, and executioner. Kelly’s actions are objectionable, then, not because he chose the wrong side in the culture war, but because he chose to take a side at all.

QAnon and Two Johns

photograph of 'Q Army" sign displayed at political rally

In recent years, threats posed to and by free speech on the internet have grown larger and more concerning. Such problems as authoritarian regimes smothering dissent and misinformation campaigns targeting elections and public health have enjoyed quite a share of the limelight. Social media platforms have sought (and struggled) to address such challenges. Recently, a new insidious threat posed by free speech has emerged: far-right conspiracy theories. The insurrection of January 6th unveiled the danger of speech promoting such beliefs, namely ones the QAnon theory embraces. The insurrection demonstrated that speech promoting the anti-government extremist theory can not only engender violence but existentially threaten the United States. Such speech so threatens harm by manipulating individuals into believing in the necessity of violence to combat the schemes of a secretive, satanic elite. In the days following the insurrection, social media platforms rushed to combat this threat. Twitter alone removed more than 70,000 QAnon-focused accounts from its platform.

This bold but wise move was met with resistance, however. Right-wing media commentators were quick to decry this and similar policies as totalitarian censorship. Legal experts retorted that, as private entities, social media companies can restrict speech on their platform as they please. This is because the First Amendment to the U.S. Constitution protects citizens from legal restrictions on free speech, not the rules of private organizations. Such legal experts may be perfectly correct, and unequivocally siding with them might seem to offer a temptingly quick way to dismiss fanatic right-wing commentators. Nevertheless, caring only about government restrictions on speech seems perilous: such a stance neglects the great importance of social restrictions on speech.

The weight of social restrictions on speech (and behavior, more generally) is very real. Jean-Jacques Rousseau referred to such social restrictions as moral laws. He even seemed to regard this class of laws as more fundamental than the constitutional, civil, and criminal classes. Moral laws are inscribed in the very “hearts of the citizens” and include “morals, customs, and especially opinion.” Violations of these laws are typically penalized with either criticism or ostracism (or both). The emergence of “cancel culture” provides conspicuous examples (for better or worse) of this structure in action, from Gina Carano to John Schnatter. First, an individual (typically, a public figure) violates a moral law (frequently, customary prohibitions on racist speech). Then, the individual receives a punishment (often, in the form of damage to reputation and career). The prohibitions on QAnon-focused Twitter accounts are a form of ostracism: those promoting QAnon beliefs have been expelled from the Twitter community for transgressing moral laws, namely peace (by promoting violence) and honesty (by promoting misinformation). As Twitter has become an integral forum for political discourse (politicians, like former President Trump, heavily rely on the platform to both court popular support and bash their rivals), this Twitter expulsion amounts to marginalization within, or partial expulsion from, general public discourse. Upon considering this, the real restrictiveness of such prohibitions on speech should now be evident.

Once the real strength of social restrictions on speech is acknowledged, a certain tension becomes apparent: that between our liberties concerning speech and our liberties in regard to property. To elaborate, there appears to be a tension between Twitter users and Twitter shareholders (particularly, the right to set and enforce private restrictions on the speech shared over the platform they own). Efforts to balance the two can perhaps be aided by the wisdom of two great Johns: John Locke and Jean-Jacques Rousseau. Their writings offer some thought-provoking perspectives on the grounds and scope of each of the parties’ freedoms.

John Locke believed that rights are derived from nature. He thought they were contained in what he called the Law of Nature: “no one ought to harm another in [their] Life, Health, Liberty, or Possessions.” Certainly, this general rule implies the rights to free speech and property. Moreover, it follows that those particular rights extend only so far as they accord with that rule. Locke’s theory can thus affirm both natural rights and natural limits to them. Stated in Lockean terms, then, the now-removed QAnon accounts apparently promoted speech which transgressed natural limits on the right to free speech (by promoting violence).

Unlike Locke, Jean-Jacques Rousseau held that rights are derived from social agreement, not nature. He held that this social agreement takes the form of continuous negotiation by all members of the “body politic:” manifold “individual wills” are boiled into an all-binding “general will.” In this perspective, the rights to free speech and property extend only so far as social agreement allows. Rousseau’s theory can thus recognize the value of including diverse individuals in social discourse while also recognizing the validity of socially-established regulations on that discourse. Understood in this perspective, Twitter expelled the QAnon accounts for violating regulations on social discourse (namely, by supporting violence and thus threatening the process of discourse itself).

Locke’s and Rousseau’s perspectives can provide a useful guide to assessing the issues related to free speech and the internet. Each perspective offers a framework which seems reasonable and yet is opposed to the other. Considering both, then, should allow for multi-sided and nuanced discussion. Employing these two frameworks (and other conceivable ones), as well as considering the opinions of more recent thinkers, can potentially enrich public discourse surrounding free speech and the internet.

The Cost of Free Speech

cartoon image of excited speech bubble

As 2021 got underway, and the United States was dealing with the fallout from the January 6 insurrection, a much smaller-scale political controversy was blowing through Australia’s sweltering summer. The prime minister was on holiday, his deputy Michael McCormack was in charge, and Craig Kelly, an outspoken member of the leading party who is a notorious climate skeptic, alternative COVID-19 treatment theorist, and vaccine doubter, had a hold of the mic and was getting plenty of attention proffering conspiracy-style views on his social media accounts.

Australia has done exceptionally well in keeping the global coronavirus pandemic at bay with strict lockdowns in response to outbreaks, effective contact tracing, and strict quarantine rules for all international arrivals. The country of 25 million, has recorded fewer than 1,000 deaths since the pandemic hit last March. Though the community is generally willing to comply with expert public health advice, there has been some dissent from conspiracy theorists and anti-vaxxers.

As Australia began preparing to roll out its COVID-19 vaccination program, Craig Kelly, that zealous critic of scientific evidence, was hard at work on his personal Facebook page posting in favor of unproven treatments and against vaccines and other public health measures, such as the wearing of masks.

Kelly has a large social media following, and public health officials in Australia, including the Australian Medical Association and the chief medical officer, pushed back hard, expressing concern that his views pose a danger to public health, and calling on senior government figures – the acting Prime Minister Michael McCormack and the Health Minister Greg Hunt – to condemn those views and rebuke Kelly. But no rebuke came. Instead, McCormack had this to say:

“Facts are sometimes contentious and what you might think is right – somebody else might think is completely untrue – that is part of living in a democratic country… I don’t think we should have that sort of censorship in our society.”

Notice how familiar this type of response is becoming: when politicians or pundits are called out for expressing views that are misleading, offensive or wrong, there is a tendency to claim a free speech defense. Notice too that McCormack makes specific reference here to what living in a democratic country involves. It is of course true that democratic legitimacy is one of the functions of free speech, but does free speech include freedom to lie, confabulate, or spread misinformation? And how do these things affect democracy? Can we untangle freedom of speech, as a fundamentally necessary democratic principle, from demagoguery?

Let’s look in a bit more detail at McCormack’s statement, which is problematic for a number of reasons, but namely in invoking freedom of speech in defense of views which ought to be rejected because they are wrong, harmful, and generally indefensible. This is a sly move, given the high importance citizens of free, democratic countries place on the right to free speech. It is also a tactic which often has little to do with defending this important right and more to do with evading a subject or shutting down an argument – contra free speech.

As a point of logic, rebuking Kelly for proffering dangerous falsehoods is not censorship. If McCormack’s assertion is that Kelly is free to make these claims then, on that argument, McCormack is free to condemn them.

Furthermore, McCormack’s assertion that facts are contentious appears to imply an ‘everyone is entitled to their own opinion’ kind of defense, which bears a strong resemblance to the free speech defense. But it simply isn’t right. In matters of fact, for example matters of science, as opposed to matters of taste, you are not entitled to your opinion; you are entitled to what you can make a case for, and what you can support through reasoned argument, true premises, and solid inferences. You are not entitled to an opinion that is demonstrably false. Both logic and good faith hold you to a standard which requires you to recognize when a belief is indefensible. Democratic legitimacy depends as much on that as it does on freedom of speech.

Following McCormack’s comments, as public and medical professional pushback grew, no senior member of Kelly’s government – not the Federal Health Minister, nor the Prime Minister himself (now back from his holiday) would bring Kelly into line. Finally, it was Facebook whose moderators intervened and Kelly was required to remove one post proffering COVID-19 misinformation and conspiracy-style rhetoric. Kelly did so, saying: “I have since removed the post… under protest.” He then gave this ominous pronouncement: “We have entered a very dark time in human history when scientific debate and freedom of speech is being suppressed.”

Perhaps Kelly is right that we have ‘entered a dark time in human history’ (if the present can be said to be history) – but not for the reasons he thinks. When we see the right of free speech being used again and again to evade responsibility and excuse lies and falsehoods, it is time to take stock, and look closely at what is at stake in our fundamental beliefs about freedom, democracy, and truth.

One reason this use of the free speech defense is so pernicious, is that most people living in open, democratic societies will agree on the importance of free speech and hold it in high regard. This invocation of freedom of speech seems to trade on the hearer not noticing that something they value highly is being used to degrade other things of value.

International law recognizes and protects the right to freedom of speech which is enshrined into the UN Declaration of Human Rights, as stated in Article 19. The antithesis of freedom of speech is censorship. Censorship is the intolerance of opposing views. This happens, politically, where the establishment fears or dislikes opposition, or where governments want to suppress information about their activities.

Democratic legitimacy is one of the most important functions of free speech. And free speech is one of the most important mechanisms of democratic legitimacy. Real democratic engagement requires the free exchange of ideas, where forms of dissent are not censored, and where differing or opposing views can be aired, discussed, and considered. In this way the citizenry can be engaged, well-informed, and part of the political process.

Even though the argument from democratic legitimacy holds free speech in high regard, very few people take an absolutist position on freedom of speech. Free speech does not imply a free-for-all. Therefore, protection of free speech always involves judgments on when and why speech might justifiably be regulated or curtailed. The answer to the question of what kind of speech causes harm and is justifiably restricted hinges on the extent to which freedom of speech is valued in itself. In liberal societies its intrinsic value is usually held to be high. If freedom of speech is curtailed, its limits will be decided around the protection of other, countervailing values, like human dignity and equality. In this sense there is a (sometimes unacknowledged) weighing-up of the value of freedom of speech relative to other values. If freedom of speech is, in itself, very highly valued, then other values may be subordinated. It is upon this scale that the right to freedom of speech is, for some, synonymous with the right to give offense.

A quick internet search of “free speech quotes” is instructive here, serving up such ideas as: “free speech is meaningless unless it tolerates the speech that we hate,” from Henry Hyde; “Free speech is meant to protect unpopular speech. Popular speech by definition, needs no protection,” from Neil Boortz; and “Freedom of Speech includes the freedom to offend,” courtesy of Brad Thor. Add to these offerings, the infamous contribution of Senator George Brandis, Australia’s erstwhile attorney general, who, in 2014 while making an argument for winding back Australia’s anti-racial discrimination laws, put it to the parliament that ”People do have a right to be bigots, you know.”

All this illustrates which values go down in ranking when free speech goes up. If we take freedom of speech to protect or our right to be bigots, that points to something we value. That is, it suggests, we value our right to be bigots more than we value equality or human dignity; that we would prefer to be allowed to vilify than to protect people from vilification.

Perhaps we will decide that we do have a right, by virtue of to the right to freedom of speech, to be bigots. If that is so, it certainly sheds light on the ethical problems that can arise from constructing our basic moral bearings around defending our rights at the expense of other ways of thinking about what is important in our moral lives. Perhaps we might orient our ethical thinking more towards questions about what we owe one another morally rather than what we can lay claim to. We might, for example, ask ourselves whether, rather than uncritically digging in about our rights, it would be better to reflect on our values in this space.

It comes back to the question of why freedom of speech is so important. If free speech, according to the democratic legitimacy argument, is so important because it allows us to better hold power to account, allows citizens to make informed decisions and engage in reasoned, open debate, then it does not make sense to defend or promote speech which itself undermines these goals — speech like Craig Kelly’s COVID-19 misinformation posts, or any picking from the multiverse of conspiracy theories currently working their way into the marrow of certain sections of society. Americans have recently experienced the very hard consequences of lies and misinformation on democratic society in the twin crises of the January 6 insurrection and the runaway COVID-19 pandemic.

In conclusion, we don’t seem to be paying close enough attention to the way that freedom of speech is being used to justify lies and to push back against demands for accountability from the powerful and privileged. If we can untangle freedom of speech as a fundamentally necessary democratic principle from demagoguery, we must do so by directing more critical attention to how it is invoked and what is at stake when freedom of speech is taken to mean freedom to lie or to further a pernicious ideology. Yes, freedom of speech is fundamentally important, and we should protect it because of its central role in the democratic process. At the same time, truth matters and lies have real consequences. When we stand up for freedom of speech, we should be thinking broadly in terms of why it is valuable, what role it serves, and what our responsibilities are in respect of each other. A broader discussion about our values will serve us better than a narrow focus on rights, no matter what they cost us.

Freedom of Speech and the Self-Defense Argument

photograph of Alex Jones with megaphone reporting for InfoWars

As a philosopher, I especially value freedom of speech: the idea that everyone should be free to state their opinions and ideas, without fear of retaliation, censorship, or legal sanction — unless, of course, that speech incites violence. This is partly because I revel in odd, counterintuitive, and persuasive arguments that challenge my beliefs and assumptions. Here it appears freedom of speech norms are key to intellectual life: they allow disagreeing parties to express differing opinions without social or political reprisal. If those who disagree keep silent, then intellectual inquiry would stop — how could it not?

The British philosopher, John Stuart Mill, held something like this view, when he defended the instrumental (and personal) value of freedom of speech:

“He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.”

Antiquated language aside, Mill is offering an intellectual reason in defense of freedom of speech: without this liberty, we couldn’t really have an intellectual discussion; there would be viewpoints we may disagree with that wouldn’t be expressed. How can I know I’m right in my political, moral, or religious views, if I don’t know why there are other folks who disagree with me? Notice too this argument applies to cultural and societal norms, and not just the state. If we’re against freedom of expression, as a society, it won’t matter that the state allows.

Despite intellectual reasons for freedom of speech norms, critics have offered compelling moral reasons against it: words can hurt, and hurt badly. Verbal abuse, by example, can leave lasting psychological scars; freedom of speech can, and often is, used as a cudgel against marginalized and minority groups in society. There’s a sense in which freedom of speech can marginalize, control, and even erase individuals and groups that society deems other: folks too different from the rest of society to have a point of view worth heeding. Or we can see how freedom of speech norms can be a permission slip for folks to discuss views antithetical to the moral standing of members of marginalized groups. As some critics of the logic of freedom of speech argue (discussing freedom of speech on campus; but the logic generalizes):

“This logic expects members of marginalized groups to debate their very humanity. As a queer faculty member, it means I am expected to engage in a discussion about the validity of my identity: whether it is real, whether it might be symptomatic of demonic possession or perhaps a mental illness. Students and faculty of color, similarly, are expected to debate the reality of their experiences and their right to equitable systems.”

The logic of this argument — call it the self-defense argument — is that it would be wrong to prop up freedom of speech norms when free speech can be used to question the validity of members of marginalized groups. When supporters of free speech point to the instrumental values of our freedom of speech — for, say, preserving rigorous intellectual discussion — they often leave off that words can do serious harm. And the reply, by freedom of speech supporters, that harmful speech should be met with more speech may not be convincing to someone who, day in and day out, has to hear, either explicitly or in a subtle way, that their rights and identity aren’t really a thing. Perhaps freedom of speech is good for rigorous debate, but only when parties to that discussion are on comparable social footing — a thing people in marginalized groups oftentimes lack.

However compelling the self-defense argument against freedom of speech norms is, it functions as a philosophical double-edged sword. The self-defense reasons one can offer against freedom of speech norms can be rejiggered to support them too. First though, consider an insight from the famous Chinese general, Sun Tzu, who observed the following about war:

“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near […] Even though you are competent, appear to be incompetent. Though effective, appear to be ineffective.”

How are deception and war related to freedom of speech? Banning or restricting speech, and especially speech from individuals and groups who use their power and influence to challenge the validity and identity of marginalized group members, forces such individuals to hide what they really think and believe, and perhaps only express their views in select company. And even if this mostly silences their oppressive speech, it has a nasty by-product: we have a far poorer idea of who holds repugnant and morally objectionable views, and what those views are, than we would if they were allowed to (largely) speak their minds without fear of reprisal.

It is likely good to know whether folks are prejudiced and bigoted, for no other reason than we can keep an eye on them. And that appeal to self-defense should appeal to everyone, especially folks most at risk from freedom of speech abuses. They have a right to know who among them has bigoted and close-minded views, rather than being in the dark about what their neighbors, co-workers, and whatnot actually believe about them. Learning this can be painful, of course, but so is not knowing whether moral objectionable beliefs are pervasive — just as we should prefer, for practical reasons, clumsy and recognizable Nazis over the charming and subtle ones, to illustrate with an extreme case. As the saying goes: ‘forewarned is forearmed.’

Mill’s Dilemma

image of crowd with empty circle in the middle

One of the most famous defenders of free speech, John Stuart Mill, argued against the silencing of unpopular opinion on the grounds that we would potentially miss out on true ideas and that we need to check our own fallibility. Contained in this reasoning is the idea that in the marketplace of ideas that truth would hopefully emerge. But that marketplace is evolving into several niche submarkets. The use of algorithms and the creation of filter bubbles means that we no longer share a common pool of accepted facts. The recent US election has revealed just how polarized the electorate is, and this raises a moral question about to what extent a democratic public is obligated to look outside of their bubbles.

Regardless of whether the current president concedes at this point, it is difficult to think that the conspiracy theories about the 2020 election will disappear, and this will have long-term ramifications for the country. What this means is that at least two sets of citizens will have very different factual understandings of the world, especially after January. The fake news being spread about the election is filling a demand for a particular version of events, and on the right this demand is now being met with news sources whose content is ever more divorced from the reporting that the rest of us get. For example, the backlash by Trump supporters over Fox News’ projected win for Biden has led many on the right to label the network as “too liberal” and to switch to alternatives who are more willing to reflect the reality that is desired rather than the reality that exists. Similarly, conservatives feeling that their views have been censored on Facebook or Twitter have been drifting towards new platforms which are tailor-made to reflect their beliefs and are rife with misinformation.

The long-term concern of course is that as different political perspectives confine themselves to their own apps, sites, and feeds, the filter bubble effect becomes more pronounced. The concerns that Mill had about censorship in the marketplace of ideas isn’t the problem. The problem is that the pluralistic marketplaces that have spawned, and the different sets of political worldviews that have been created, are becoming insular and isolated from one another and thus more unrecognizable to each other. This is a problem for several reasons. Many have already pointed out that it allows for misinformation to spread, but the issue is more complicated.

The political bubbles of information and the echo chamber effect are making it easier to escape that check on fallibilism for those all across the political spectrum. It also makes addressing real world problems like climate change and COVID-19 more complicated. As one nurse has said, people are literally using their last breaths proclaiming that COVID isn’t real as they die from the disease. When recently asked about the fact that President Trump received over 70 million votes in the election, former President Obama opined that the nation is clearly divided and that the worldview presented in rightwing media is powerful. He noted, “It’s very hard for our democracy to function if we are operating on completely different sets of facts.”

As many experts have testified, this split in worldview is not going away. The moral issue isn’t merely that so many people can believe falsehoods or that truths may be buried; it’s the way that “facts,” as understood within an epistemic bubble, are related to each other and how political problems get defined by those relations which all lead to incommensurability. The moral issue is thus practical: how does a society where everyone is free to create their own worldview based on their preferences and have their views echoed back to them function when we can’t recognize what the other side is talking about? As the election debates demonstrated, certain dog whistles or narratives will resonate to some and not be recognized by others. Even if we put facts, fact-checking, and truth aside, do we still have a moral obligation to look outside of our own bubble and understand what our political opponents are saying?

In a recent paper from Episteme on the subject, C Thi Nguyen argues that we need to distinguish between epistemic bubbles and echo chambers. In the former, information is left out because a consumer is only provided certain sources. For example, if I open links to certain kinds of articles in a news feed, an algorithm may begin to provide more articles just like it and exclude articles that I am less likely to open. Thus leading to an epistemic bubble. On the other hand, if I specifically avoid certain sources or exclude certain sources I am creating an echo chamber. As described, “Both are structures of exclusion—but epistemic bubbles exclude through omission, while echo chambers exclude by manipulating trust.” Breaking free from an echo chamber is far more difficult because it involves using distrust of non-members to epistemically discredit them.

Trust is obviously important. Attempts to undermine fake news outlets or engage in censorship have only seemed to inspire more distrust. Fox News tries to maintain journalistic integrity by projecting an election, but this breaks the trust of Fox News viewers who leave for another network which will reflect their wishes. Since Twitter tags misleading tweets, conservatives are opting for other means of sharing their views. It seems the more that the so-called mainstream media tries to combat disinformation spread, the more it creates distrust. Simply trying to correct misinformation will not work either. Studies of disinformation campaigns reveal just how difficult it is to correct because even once a false claim is corrected, it is often the false claim that is remembered.

So, what is the alternative? As mainstream media attempts to prevent the spread of misinformation on their own platforms, trust in those platforms declines. And those who are left watching mainstream media, even if they do want truth, lose a check on their own biases and perspectives. Do the rest of us have an obligation to look at Newsmax, Breitbart, or Parler just so we can see what epistemic framework the other side is coming from? It may not be good for the cause of truth, but it might be necessary for the cause of democracy and for eventually getting the country to recognize and respond to the same problems. It may be that the only way to rebuild the epistemic trust required to break free from our echo chambers is to engage with our adversaries rather than merely fact-check them. By preventing the marketplace of ideas from balkanizing, there may still be a cheerful hope that through the exchange of ideas truth will eventually emerge. On the other hand, it may only cause more disinformation to spread even easier. Mill’s dilemma is still our dilemma.

In Defense of Mill

collage of colorful speech bubbles

In recent years, commentators — particularly those who lean left — have become increasingly dubious about John Stuart Mill’s famous defense of an absolutist position on free speech. Last week, for instance, The New York Times published a long piece by Yale Law School professor Emily Bazelon in which she echoes a now-popular complaint about Mill: that his arguments are fundamentally over-optimistic about the likelihood that the better argument will win the day, or that “good ideas win.” In this column, I will argue that this complaint rests on a mistaken view of Mill.

Mill’s argument, briefly stated, is that no matter whether a given belief is true, false, or partly true, its assertion will be useful for discovering truth and maintaining knowledge of the truth, and therefore it should not be suppressed. True beliefs are usually suppressed because they are believed to be either false or harmful, but according to Mill, to suppress a belief on these grounds is to imply that one’s grasp of the truth or of what is harmful is infallible. Mill, an empiricist, believed that no human being has infallible access to the truth. Even if the belief is actually false, its assertion can generate debate, which will lead to greater understanding and ensure that truths do not lapse into “mere dogma.” Finally, if the belief is partially true, it should not be suppressed because it can be indispensable to discovering the “whole” truth.

Notice that Mill’s whole argument concerns the assertion of beliefs, or the communication of what the speaker genuinely takes to be true. The key assumption in Mill’s argument is thus not that the truth will win out in the rough and tumble of debate. This may well be true — at least, it may be true in the long run, when every participant is really engaging in debate, or the evaluation of truth claims. Rather, Mill is taking as given that a lot of the public discourse is aimed at communicating truth claims in good faith. The problem is that much of this discourse is not intended to inform others about what speakers actually believe. Much of the public discourse is propaganda — speech aimed at achieving some political outcome, rather than at communicating belief. As Bazelon points out, referring to the deluge of disinformation that currently swamps our national public conversation,

“The conspiracy theories, the lies, the distortions, the overwhelming amount of information, the anger encoded in it — these all serve to create chaos and confusion and make people, even nonpartisans, exhausted, skeptical and cynical about politics. The spewing of falsehoods isn’t meant to win any battle of ideas. Its goal is to prevent the actual battle from being fought, by causing us to simply give up.”

The purpose of disinformation propaganda is to overwhelm people with contradictory claims and ultimately to encourage their retreat into apolitical cynicism. Even where propagandists appear to be in the business of putting forward truth claims, this is always in bad faith: propagandists aren’t trying to express truth claims. 

Where does this leave Mill? Mill may have been mistaken in overlooking the pervasiveness of propaganda. However, his defense of free speech need not extend to propaganda. If Mill is concerned only with defending communicative acts that are aimed at expressing belief, then we have no reason to think that Mill needs to defend propaganda. Thus, a Millian defense of speech can distinguish between speech that is intended primarily to express a truth claim and speech that is intended primarily to effect some political outcome. While the former must be protected from suppression, the latter need not be, precisely because the latter is not aimed at, nor likely to produce, greater understanding.

Of course, this distinction might be difficult to draw in practice. Nevertheless, new policies recently rolled out by social media platforms appear to be aimed precisely at suppressing the spread of harmful propaganda. Twitter banned political ads a year ago, and last month Facebook restricted its Messenger app by preventing mass forwarding of private messages. Facebook’s Project P (P for propaganda) was an internal effort after the 2016 election to take down pages that spread Russian disinformation. Bazelon recommends pressuring social media platforms into changing their algorithms or identifying disinformation “super spreaders” and slowing the virality of their posts. Free speech absolutists might decry such measures as contrary to John Stuart Mill’s vision, but I have suggested that this might be a mistake.

Kyle Rittenhouse and the Legal/Moral Limits of Self-Defense

photograph of protesters carrying automatic rifles

On August 25th, Kyle Rittenhouse carried a firearm into the protests in Kenosha, WI. He killed Joseph Rosenbaum, 36, and Anthony Huber, 26, and seriously injured Gaige Grosskreutz, 26.

Rittenhouse is being charged with one count of first-degree intentional homicide; one count of first-degree reckless homicide; one count of attempted first-degree intentional homicide; and two counts of first-degree reckless endangerment. The Kenosha police chief called the shootings a senseless act of violence on protesters: “We’ve had two people lose their lives senselessly while peacefully protesting,” Chief Miskinis said.

His lawyers, on the other hand, claim that he was “protecting his community,” acting in self-defense: “before Rittenhouse fired his gun, he was ‘accosted,’ ‘verbally threatened and taunted’ by ‘rioters’ while he guarded a mechanic’s shop alongside a group of armed men.” By claiming that Rittenhouse was acting in self-defense the legal team invokes one of the most intuitive exceptions to the prohibition on inflicting harm on another person. But, there are limits, both morally and legally.

Morally speaking, the views on the appropriate use of self-defense are more varied than the range permitted by law. This is of necessity – to allow broad ranges of interpretation in matters that include inflicting harm on one another isn’t conducive to a well-functioning legal system. In ethical theories, the question of self-defense involves slightly different questions than in the realm of law. Legally, you have some right to defend your person — though the conditions differ by jurisdiction — and this presumption already diverges from one moral position: pacifists. Pacifists defend the position that harming another person is never justified. There are pacifists that emphasize that this lack of justification arises because of the alternatives to harm that are ever-present, and this concern does show up in many self-defense statutes. If someone can avoid using force in order to defend themselves, then this can undermine the justification for the use of force (though in WI, there isn’t a “duty to retreat” as there is in other states).

Other pacifists emphasize that the same principle that makes it inappropriate for your assailant to harm you also holds in the case of your harming them. And it gets more complicated because most theorists agree that not all cases of harming someone in order to avoid them harming you are justified. There are limits to when defensive force is permissible even for non-pacifists. Self-defense doesn’t always work as a defense, so to speak.

Imagine if I put myself in the position where I needed to defend myself in the first place. In such circumstances, the role of the “attacker” becomes more murky, and the sense in which I need to defend myself becomes harder to explain. This complicates matters for a number of ethicists. In such a case, if some action of mine could de-escalate the situation or prevent the threat to my safety, then I am not justified in using force to defend myself. Underlying these cases is the idea that we can avoid circumstances where inflicting harm, or at the very least inflicting lethal harm, on assailants. If generalizable, this would undermine the force of the self-defense arguments.

For example: Imagine that I am robbing a house with a firearm, and the homeowner pulls a gun on me, shouting “Make another move and I’ll shoot!” I believe the homeowner to be a little trigger-happy and fear for my life. I shoot the homeowner out of this fear, and thus in self-defense. Was I acting permissibly in shooting the homeowner? According to moral theorists, self-defense doesn’t clearly apply here because the home’s defenders were responding to my use of force. The important feature, arguably, is that I could avoid defending myself by ceasing my aggressive, law-breaking conduct that initiated the exchange. When I threatened the homeowner with lethal force, she was using appropriate force in response. Morally speaking, if I stepped down and ceased posing a threat, the homeowner loses her moral justification for threatening harm to me.

Here the law and these moral theories arrive at similar conclusions (with the Castle Doctrine complicating matters), but with important differences. Legally speaking, breaking a law at the time of defending your safety undermines a claim to self-defense, but not entirely. However, it isn’t purely the lawbreaking that changes the morality of the situation for all ethicists. In this idealized scenario, the threat to my life exists because of my threat to the homeowner. If I stop my threat, I do not need to harm anyone in self-defense.

According to Wisconsin’s self-defense law, people are permitted to “use force which is intended or likely to cause death or great bodily harm (if they) reasonably believe that such force is necessary to prevent imminent death or great bodily harm to (themselves).” The key here is what the defendant reasonably believes. If the defendant’s lawyers can establish that he had a reasonable belief that he needed to use the force he did to prevent imminent death, his self-defense claim may stand. In Wisconsin, there isn’t a duty to retreat before using force. As such, a great deal rests on whether the jury judges that Rittenhouse had a reasonable belief that his use of lethal force was necessary to preserve his life. The jury’s judgment will depend on a variety of interpretative aspects, as none of the defendant’s victims seem to, in fact, be directing lethal force at him according to witnesses and video, and only one was armed at all. But there is often a distance between what is true and what someone reasonably believes is true.

Eric Zorn, news and politics correspondent for the Chicago Tribune, highlights elements of the scenario from both the legal and moral discussion above: “Did the teen willingly put himself in that fraught milieu and illegally, allegedly, risk a horrific escalation of that danger by carrying a gun on the scene? Yes.” Rittenhouse chose to put himself into a potentially lethal situation. In fact, that the situation was dangerous is his reason for being there. For some theorists, this makes a difference in how morally justified he is in using force against his assailants. He could have avoided the risk to his safety and avoided inflicting harm, similar to the armed burglar example.

Zorn also notes: “What about the context, though? The confrontational, high-adrenaline interactions that led up to the tragic deaths. The night air punctuated by gunshots. Danger all around.” From a legal perspective, and also according to some moral theorists, the relevant context is more narrow in scope. It is the setting in which Rittenhouse killed two people and injured another. Did he reasonably feel his life was threatened then? And was lethal force his reasonable route of defense?

Rittenhouse’s lawyers say yes: “In fear for his life and concerned the crowd would either continue to shoot at him or even use his own weapon against him,” the lawyer’s statement says, “Kyle had no choice but to fire multiple rounds towards his immediate attackers.”

But there are further moral and legal issues that the Rittenhouse case represents.

Aside from the question of whether there was a reasonable belief in a lethal threat to his life, Rittenhouse faces further legal scrutiny in his carrying of a firearm illegally. Further, his behavior exists in a context of a culture that is praising violent responses to protests of police violence, and in this case, inciting violence in response to them.

Rittenhouse allegedly did a lot of illegal things. The 17-year-old reports being motivated by a call to protect people and businesses in Kenosha, and arrived with a gun at an auto mechanic’s on August 25th. His lawyers claim that the 17-year-old’s “intent was not to incite violence, but simply to deter property damage and use his training to provide first aid to injured community members.” The lawyers also report: “Rittenhouse and others stood guard at a mechanic’s shop near the car depot, even after the curfew was in effect.” Unfortunately, Rittenhouse’s chosen method of “deterring property damage” was standing guard with an assault-style rifle he was not legally permitted to possess in Wisconsin, or conceal carry in his home state of Illinois.

Rittenhouse is facing misdemeanor charges for his illegal engagement with the assault-style rifle. Meanwhile, the calls for armed response against the protests in Kenosha have come under scrutiny. Facebook chief executive Mark Zuckerberg said the “Armed Citizens to Protect our Lives and Property” event, hosted by the Kenosha Guard on Tuesday night encouraging armed people to go to Kenosha, was in violation of policies and should have been removed. The direct calls for armed citizens to go to Kenosha were seen as inciting violence, and thus inappropriate on social media. We see their impact in Rittenhouse’s behavior, and the deaths that the calls result in.

In response to these protests, besides directing violence to the protestors themselves, there has been an outpouring of praise towards the people committing the acts of violence. For example, Rep. Thomas Massie (R-Ky.) praised Rittenhouse’s “incredible restraint” at not emptying his magazine into the crowd. And though he also admitted to not being as aware of the circumstance of the murder of Jacob Blake as the case against Rittenhouse, despite claiming: “As a 17-year-old, he was legally entitled to have that firearm in his possession. This is 100% self-defense.” Likewise, DeAnna Lorraine, a Republican congressional candidate, tweeted: “We need more young people like Kyle Rittenhouse and less like Greta Thunberg.” And even President Trump praised Rittenhouse in a tweet: “The only way you will stop the violence in the high crime Democrat run cities is through strength!”

While praise and comparisons to heroes might not rise to the level of incitement — it does not directly encourage another person to commit a crime — it is still dangerous. So, on the other side of the incitement that drove Rittenhouse, there is the encouragement and positive reinforcement that leads to think pieces about an oncoming Civil War.

When the praise heaped onto a vigilante who acted in response to incitement comes from so many sources, the positive reinforcement becomes dangerous in itself. It doesn’t constitute incitement, but continues to divide cultural battle lines where institutional systems that promote violence are paired individual citizens suppressing voices protesting those systems. This encouragement, the incitement, and the people who act on it are a unified voice against change and institutional reform.

This praise is not for someone acting in self-defense. It is for acts of aggression against people rising up against violence and murder. The mixed messaging regarding the case of Kyle Rittenhouse may complicate the case for self-defense. Is he a brave patriot, fighting on the side of law, justice, and the American way, or a scared innocent simply trying to protect himself?

Under Discussion: On Cancelling “Cancel Culture”

photograph of a fountain pen and a signature on yellow paper.

This piece completes our Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: The Harper’s Letter.

On the morning of July 7th, Harper’s Magazine published its “Letter on Justice and Open Debate” that portended all manner of dangers to contemporary society if the “stifling atmosphere” it referenced was allowed to continue eclipsing the “free exchange of information and ideas.” With over 150 signatories — many of whom were either popular celebrities, Ivy League academics, or a strange combination of the two — the letter commanded a considerable amount of attention and has since spawned a host of responses, critiques, endorsements, rejections, and parodies — including by multiple writers for The Prindle Post — as well as its own Wikipedia article.

But on the evening of July 7th (mere hours after the letter’s initial online release), two of its signatories issued retractions of their original endorsements: Kerri Greenidge, a historian and director of the American Studies program at Tufts University, and Jennifer Boylan, an English professor at Barnard College, both released short statements on Twitter indicating that they did not, in fact, support the letter’s message. Although her name has been deleted from the list, Greenidge has not commented publicly about her decision to retract her support. However, Boylan offered the following explanation on Twitter: “I did not know who else had signed that letter.  I thought I was endorsing a well meaning, if vague, message against internet shaming. I did know Chomsky, Steinem, and Atwood were in, and I thought, good company. The consequences are mine to bear. I am so sorry.”

Critics quickly attacked these pivots as being either disingenuous or cowardly; for example, journalist (and letter-signer) Malcolm Gladwell quote-tweeted Boylan’s retraction, sarcastically quipping, “I signed the Harpers letter because there were lots of people who also signed the Harpers letter whose views I disagreed with. I thought that was the point of the Harpers letter.” Others, such as Jesse Singal (another letter-signer), took them as further proof of the pervasiveness of the problem the letter purported to highlight in the first place; in a now-deleted response to Boylan’s tweet, Singal said: “Ah yes, here it is — the first official apology for signing a statement condemning the climate of conformity, fear, and mutual surveillance that has descended upon public intellectual life.” For many, the apparent irony of “cancelling” a letter decrying so-called “cancel culture” was simply too much to avoid ridiculing.

But those complaints miss the point.

Even if we set aside the unusual (and potentially deceptive) way that Harper’s Magazine collected signatures for the letter in the first place, it is not hard to understand why someone could initially agree to sign the letter, then change their mind after seeing the final product in all of its context. Put differently: it is not ridiculous for someone to make (or affirm) a public statement, then cancel that erstwhile claim in light of new information learned later.

Of course, everything turns on what you mean by ‘cancel’ here. In its broadest strokes, “cancellation” is a kind of collective public shunning of an individual, typically as a backlash to something for which that person was responsible: examples could include the ways that the reputations of entertainers like Louis CK and Shane Gillis have been damaged as a result of their past sins coming to light. “Cancel culture,” then, is a social force that promotes the cancellation of individuals; Barack Obama recently compared it to “casting stones” instead of actually “bringing about change” and its critics argue that its unforgiving expectations are unrealistic. In its more academic forms, cancellation is akin to censorship and involves critics deploying various social pressures to throttle conversations of which they do not approve — this seems to be the target of the warnings trumpeted by the Harper’s Letter (which denounced a perceived cultural trend towards “an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty”). In its most public forms, cancel culture manifests as protests or other coordinated actions to sanction thinkers for the ideas that they choose to express, such as the unsuccessful attempt by over 600 academics who recently petitioned the Linguistic Society of America to remove (Harper’s Letter–signer) Steven Pinker from its list of “distinguished fellows.”

Instead of “cancelling” thinkers who espouse distasteful ideas, the critics of cancel culture typically argue that those ideas should be freely and openly discussed and considered — if they truly are distasteful, then conversations held in good faith will render such judgments in due time (see also Desmonda Lawrence’s explanation of John Stuart Mill’s views on free speech). By instead targeting the person encouraging an idea’s discussion, a would-be canceller is unfairly shifting the focus of a conversation from “what is said” to “who is saying it.”

Or so the complaint goes.

I’ve written here before about the importance of distinguishing between the semantics and pragmatics of a sentence — in short, between a speech act’s “propositional content” and the complex manner in which that content is deployed in a given conversation. Most simply, this is the difference between what a speaker says and what they mean by saying it. Often, these two features align, such as when my wife asks me if the coffee is ready and I reply, “No, we ran out of filters” — the content of this sentence is twofold (we have neither coffee nor coffee filters) and my intention in speaking it is simply to inform my audience of these tragic facts. But if I instead reply “Someone forgot to buy coffee filters,” I still mean to report that we have no coffee, but I do so in a way that simultaneously highlights  “someone’s” choices during our most recent shopping trip (which is the target of my reply’s semantic content). In his book The Language Instinct, Pinker explains how “It is natural that people exploit the expectations necessary for successful conversation as a way of slipping their real intentions into covert layers of meaning. Human communication is not just a transfer of information like two fax machines connected with a wire; it is a series of alternating displays of behavior by sensitive, scheming, second-guessing, social animals.”

This feature of natural language — the socially-embedded pragmatic applications of our speech acts — is something that the Harper’s Letter (and critics of so-called “cancel culture” writ large) overlook by focusing primarily on the abstract propositions within a discursive exchange. By saying that various public criticisms and professional consequences have resulted in an “intolerant society” concerned to “steadily narrow the boundaries of what can be said without the threat of reprisal” (emphasis added), the Letter seems to pretend like the semantic content of an article, speech, tweet, or what have you is the only meaningful element to consider about a conversation. But often, what would-be cancelers are also concerned with is what is meant by what is said, including what is meant by even having the conversation in the first place.

For one example: Recently, when Tom Cotton, the junior senator from Arkansas, wrote an editorial in The New York Times calling for the deployment of the American military against American citizens, critics not only condemned Cotton’s ideas, but also the paper’s Editorial Board for allowing those ideas to be spread. The concern was not simply about Cotton’s meaning, but about what The New York Times at least tacitly intended by lending the legitimacy of the “newspaper of record” to Cotton’s violent hopes. The important thing to notice here is that even though The New York Times wasn’t “saying” anything in Cotton’s article (because only the senator was responsible for the article’s semantic content), it must have been the case that the Editorial Board meant something by allowing it to be released (insofar as The New York Times must have had a reason for approving its publication) — that meaning is fully eligible for assessment on its own terms. Contra the Harper’s Letter, criticizing the Board’s approval of Cotton’s article is far from a “restriction of debate” that “invariably hurts those who lack power” — instead, it seems a legitimate critique within standard norms of discourse.

And while each incident of alleged “cancellation” must be considered individually, most Americans agree that speakers should be held accountable (and potentially experience “social consequences”) as a result of the positions they defend; for example, a recent POLITICO survey found that fewer than one-third of respondents actually agreed that “There should not be social consequences for expressing unpopular opinions in public, even those that are deeply offensive to other people because free speech is protected.” Because “expression” includes both semantic and pragmatic forms of a speaker’s meaning, it again seems quite normal to expect that a given speech act can have all manner of consequences.

Crucially, the attention needed to interpret what all a conversation expresses is far more complicated than the “literal/non-literal” binary recently suggested by Agnes Callard. In her defense of Aristotle’s lasting value, despite his problematic moral track record, she says that “The answer is to take him literally — which is to say, read his words purely as vehicles for the contents of his beliefs” — in so doing, she says, we can come to see Aristotle’s full-throated defenses of sexism or slavery as being free of any anachronistic “messaging” relevant to contemporary political debates and can instead simply see Aristotle taking an “empirical” approach to the world he knew. According to Callard, “‘Cancel culture’ is merely the logical extension of what we might call ‘messaging culture,’ in which every speech act is classified as friend or foe, in which literal content can barely be communicated, and in which very little faith exists as to the rational faculties of those being spoken to.”

This seems mistaken; “cancel culture” is often just the natural manifestation of the pragmatic effects of a speech act (or a pattern of speech acts) — something easily divorcable from political signaling or social “messaging.” As Bryan Van Norden explains, not only are there legitimate questions of pedagogical priorities with the time constraints of a given syllabus, but the pragmatic effects of both Aristotle’s beliefs and of teaching Aristotle’s beliefs are additional facts that responsible philosophers cannot ignore: “To primly insist that we (and they) treat [Aristotle’s] views as merely ‘empirical’ hypotheses or focus only on the ‘literal content’ of what he says is to leave out too many important — and philosophically interesting! — issues.” Notably, as Van Norden also points out, talking about teaching Aristotle’s beliefs can have additional pragmatic effects, as shown by Callard’s NYT article rippling into more explicitly partisan publications (whose ideological goals are notably different from both Callard and Aristotle).

In short, what I mean to say is that it is simply wrong to pretend like expressed propositions can be fully analyzed “literally” in isolation from the social contexts of their expression. Furthermore, it’s quite unremarkable that those social contexts often include effects on things like a speaker’s reputation. So, if someone’s speech act redounds upon their opportunity to make additional speech acts of a similar kind at a later date, this is ultimately just a function of how societies organize themselves. Certainly, it is a far cry from any sort of “political weapon” wielded by nefarious agents (as Donald Trump has recently asserted): it is instead an epiphenomenal manifestation of public opinion, collectively organized. (This also explains why it is, by definition, impossible for an individual to “cancel” another in the way described here.)

So, what all does this mean for the people who retracted their initial support for the Harper’s Letter? Although she may well have approved of the semantic (or, perhaps, “literal”) content of the Letter in isolation, when Jennifer Boylan learned how that Letter was actually deployed and the likely sorts of interpretations that its many pragmatic features could engender — in particular, features arising from the reputations of multiple other signatories — she could easily reconsider and even retract her endorsement in light of those new facts without violating any moral or rational norms. In fact, Boylan’s cancellation of her support for the Letter is ultimately not that different from the cancellation of a Gricean implicature: she was simply clarifying what she did and did not actually mean.

This is all captured best by Lucía Martínez Valdivia, an English professor at Reed college who also signed the Harper’s Letter: in a tweet posted on July 8th (the day after the Letter’s publication), Martínez Valdivia shared a screenshot of an email where she wrote,

“The presence on that list of those who have shown through their actions that they do not in truth agree with the principles outlined in the letter turned it from a sincere presentation of a difficult but valuable ideal into an entirely different and hypocritical text…it saddens me that a statement that could have fought for the common good and equal protection of everyone…was instead poisoned and perverted by the insincere voices of people who have wielded their considerable influence, platforms, and resources to silence those who would disagree with or criticize them.”

That is to say, the pragmatic implications of the list of signatories means something different from the literal, semantic content of the Letter itself, and approving of the latter does not equate to supporting the former. Martínez Valdivia concluded her email by also withdrawing — or cancelling, in the Gricean sense — her endorsement.

Under Discussion: Platforms of Power and Privilege

image of megaphone amplifying certains rays from an array of color bands

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: The Harper’s Letter.

Many individuals in the public sphere have signed an open letter referred to as the Harper’s Letter. The gist of the letter is that the free discourse of ideas is currently being hampered by what has been called “cancel culture” — the sudden and wide-ranging criticism that individuals in the public eye are subject to when private citizens find their speech or behavior unacceptable. The undersigned of this letter represent all manner of points across the political spectrum and a variety of professions.

The letter itself tends to fixate on contributors who occupy a privileged position in public debate: editors, authors, journalists, professors. In focusing on the figures with high-impact voices in public dialog, the letter misses important features of open discourse. As participants in dialog, there are responsibilities we have to one another as speakers, as contributors to our public discourse. We do not voice opinions, or indeed act, in a vacuum. We speak and operate in contexts where a great deal of our meaning is determined by our intended audience and the conversations we are entering into. In short, what we say and do depend on the world around us for its meaning and impact.

The public figures that signed the Harper’s letter have received public sanction for their speech and behavior, and the letter comes off as a complaint about the public consequences of their own behavior as it does their characterization of public discourse in general. When speaking as a public figure, or occupying a privileged position in public discourse in general, your voice has a context that is open to criticism by a broad audience, and, unfortunately for some, that audience finds their voices wanting.

No one deserves to occupy a particular space in the public sphere in our society, or to be above criticism. No one deserves to be in a privileged position, such as editors, authors, and other media figures who speak to the public. Such figures are open to criticism and bear the consequences for their behavior according to public judgment and standards just as private members of the community do, but at the scale of their privileged position. No one has to listen to them or subject them to “exposure, argument, or persuasion” (as the Harper’s Letter seems to demand of immoral and toxic, misinformed behavior and speech that is particularly damaging to society when amplified by these privileged voices).

We have categories that limit harmful speech, such as “harassment,” “libel,” and “slander” that handle those instances where criticism becomes out of line, but the Harper’s Letter equates publicly criticizing speech or figures being de-platformed with being “silenced.” If one’s livelihood depends on public opinion, then part of their professional expertise is managing their public image, and they have not performed it adequately when they are subject to the amount of public criticism that the undersigned describe.

However, it may be more or less appropriate to take public criticism as the standard by which the speech of individuals should be judged. As public figures, we can, for instance, consider what the standards are for your position as a public figure? Depending on the grounds for the attention and status you have, public criticism may be more or less warranted, or perhaps should have more or less of a degree of impact on your life and career.

An example from the letter regards issues with faculty in universities. On occasion, professors’ scheduled talks at other universities have been met with student protests, making them unable to present their speech. These cases are complicated, as faculty aren’t exactly public figures, but when they are asked to speak, they are being given a voice above other possible speakers — it is not part of their explicit job, and the inviting institution had options for which voices to promote. In that sense, criticism by the audience can be appropriate regarding the speech. Audiences are constituent members of acts of speech, and speakers don’t inherently deserve one. On the wider professional level in academia, your research is judged by your peers, and you are not a privileged speaker or public figure. When your peers find your scholarship wanting, your speech is silenced according to some loose standard. Such an incident happened recently with Daniel Feller, the historian who gave the Plenary Address at the 2020 Shear Conference. Professor Feller drew criticism when his speech diminished the atrocities committed by Andrew Jackson against Native Americans, with many of his peers submitting scholarly evidence countering the points in his speech.

There are further examples where individuals draw criticism for their speech and behavior that are in line with the undersigned’s personal grievances. With individual figures whose careers are primarily in the public sphere, the standards for criticisms can be more amorphous. Whether they should have a career, or whether their place in the public eye should be actively discouraged, could depend on a number of things.

For instance, one complicated example of publicity and criticism concerns businesses and the sudden, large outcry policies and statements can provoke. Large numbers regularly criticize business leaders in and the direction of their profits, calling for their removal from their positions or boycotting their companies’ goods. Chik-fil-A, Soul Cycle, and LaCroix are just a few recent examples. These leaders have a very privileged position; economic realities influence the political reality in an extreme way in the United States. As of 2015, corporations spend more money lobbying Congress than taxpayers spend funding Congress.

It might be helpful to consider other comparisons. Civil servants, for instance, depend on their constituents for their legitimacy. If their voters disagree with anything about their lives, conduct, opinions, or personality, it is sufficient for them to lose their justification for having that position. The grey area here is the connection between celebrity and political role. Often in order to remove someone from their role in politics, public messaging plays a large part and this involves open criticism that damages reputations and employs strategies that are frequently controversial. This is also the feature that makes public criticism and campaigning to remove individuals from the public roles they occupy difficult to parse.

News anchors and other media figures explicitly depend on their behaviors and speech to be understood in particular ways and to meet societal standards where sufficient amounts of their audience approve of their speech and behavior. When their speech and behavior elicits sudden and large public outcry, this is a professional rather than a personal issue, more similar to civil servants than academics.

For artists, the connection between creating art and the celebrity it can bring is more complicated than for civil servants and media figures. If artists take on the mantle of public figure, they also take on the potential for public criticism and blame.

There are two identifiable threads that people find alarming when sudden and marked criticism targets public figures. First, it can seem undeserved, or an overreaction, in which case the outcry seems unjust, or unfairly backing someone into a corner or painting one with too broad a brush. This leads to a defensive response by the object of criticism, and a vulnerable and defensive reaction by some of the audience of the events. The response this engenders denies that the wrongdoing was “all that bad.” It suggests that we should be more tolerant to the behavior that is being called out.

When the defensive reaction elicits a denial of the misstep or outright wrong of the public figure, this can obviously be very problematic. Everyone goes wrong at multiple times in their life be it through behavior, speech, or intention. Public figures *do* go wrong, just as private members of society do. We need to not only acknowledge that, but also take seriously the over-sized impact that public figures have in our society: they influence our communities more than private members do. The increased impact brings with it more responsibility for critical reflection.

It is *wrong* for J.K. Rowling to promote transphobic and hateful positions, just as it is *wrong* for Louis C.K. to commit sexual misconduct. It was similarly wrong for Chik-fil-A to promote damaging and hateful treatment of LGBT+ people. Al Franken lost his political position over allegations of sexual misconduct, and Matt Lauer was removed from the “Today” show due to allegations of rape and sexual misconduct. These examples are of entities that exist in the public sphere, and who faced backlash and criticism based on their expressed views or behavior. Just as there’s not a justification for them to be in the public sphere in the first place, there is not a justification for them to be exempt from losing their place after enough people take issue with their behavior.

Second, it can seem as though there is no possible way to behave in such a way to avoid the strong backlash that some public figures have received. This amplifies the vulnerable, threatened feelings not just among the public figures, but also private members of society who might identify with those behaviors. It may seem that there is no getting away from some types of criticism, of going wrong in some sort of way. And this kind of condemnation cuts off further conversation about repair and progress.

Consider the months in 2019 when many public figures were exposed for having worn blackface in the past. Unfortunately, few who were revealed to have taken part in this obviously offensive and unacceptable behavior took responsibility for their actions. Few admitted to having done something wrong, expressed regret having since learned what made their actions unacceptable, or indicated that they were grateful to those who helped them grow and reflect on their former understanding, etc. The idea that there is no way to respond to criticism or wrong-doing does not help progress or understanding. Again, people will make mistakes. While nearly everyone will not make the mistakes listed here, it could be earnest dialog rather than defensiveness that is the focus when communal moral standards are not met. When private members of society see public figures being castigated, it is an important step past the fear of “cancel culture” to realize that they themselves are not under threat and that most likely they would not do what these figures did in the first place. It is also important to keep in mind that our moral missteps be approached with an attitude geared toward growth and repair.

Adopting such an attitude can be an extremely difficult task. As the Harper’s Letter attests, the criticism that occurs on social media — and that criticism’s real-life consequences — encourage defensive reactions. The threat wielded by such sudden and effective criticism evokes feelings of vulnerability and insecurity. But it is important to remember that it is the place in the public eye, or one’s professional reputation that is under threat, not the person’s safety or even freedom of speech. Further, threatening their place in the public sphere is frequently warranted, especially when their profession confers public status, as with politicians, news anchors, celebrities, etc.

In the end, the discussion of freedom of speech is a red herring that distracts us from our principal target. We should instead be focusing on why individuals receive the attention that they do, and whether the appropriate form of moral engagement when they fail to meet moral standards is to criticize their place in the public sphere. This can result in mutual progress, as opposed to mere removal.

Under Discussion: Free Speech, Cancel Culture, and Compassion

photograph of yellow push pin in the center of blue push pins with their spike turned to the yellow one

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: The Harper’s Letter.

In July, 2020, Harper’s Magazine published a letter signed by 153 prominent authors and thinkers. Signatories included figures such as Noam Chomsky, Gloria Steinem, and J.K. Rowling. Their main contention was that an “illiberal left” has emerged in recent political discourse — a left that allows no room for divergent points of view and that deals with “wrongdoers” swiftly and mercilessly.

Though the letter is about responses to speech, it does not express fear that first amendment violations are occurring; it does not suggest that the government is censoring speech on the basis of content. Instead, the signatories are concerned about the current cultural climate. They are concerned about cancel culture and the chilling effect it can have on the free exchange of ideas. Constitutions provide protections against tyrannical governments, and historically governments have been the primary coercive force looming over the lives of private citizens. In the new age in which we live, the internet — and the anonymous people on it — pose a comparable threat to personal well-being.

The main argument in support of cancel culture, at least when it comes to speech, is that some ideas are so wrong and so harmful that they should not be expressed. If they are expressed, the consequences should be so severe that the community as a whole learns that those views will not be tolerated. Racist, sexist, and homophobic (to name just a few) messages ought never to be advanced on any platform. It isn’t simply that these messages are inherently bad, they also cause real harm. The argument is that our response to speech should match in severity the potential harm caused by that speech.

The idea that the value of free speech can be outweighed by other important values is not new. The approach has been codified into law on multiple occasions. In one such case, the circumstances were morbidly similar in some respects to those in which we now find ourselves — Nero fiddled while Rome burned. In 1918, the Spanish Flu raged. Its existence and severity were undermined and covered up by governments, and the global travel initiated by World War I ensured rapid spread of the virus. Amidst this turmoil, Congress passed The Sedition Act which outlawed “disloyal, profane, scurrilous, or abusive language” against the United States government. Those that violated the act could spend up to twenty years in prison. The rationale for passing the legislation concerned the potential harms and unrest that anti-government sentiment could cause during wartime.

The highest courts in the country repeatedly upheld the act, making use of what is now referred to as the “Bad Tendency Test.” One noteworthy use of the Bad Tendency Test involved a man who wrote a book that contained arguments against war. In the book, the man argued, “that patriotism is identical with murder and the spirit of the devil, that war is a crime, and…that it was yet to be proved whether Germany had any intention or desire of attacking the United States.” At the time, this kind of argument was very unpopular — patriotism and loyalty to one’s country were viewed as important social virtues, and those who did not exhibit said virtues were viewed as pariahs. The courts agreed, and held that the issue at stake was “whether the natural and probable tendency and effect of the words quoted therefrom are such as are calculated to produce the result condemned by the statute.” In other words, the mere potential harms caused by certain kinds of speech were viewed as being so significant that it justified punishment for speech that might have a tendency to bring about those harms. The result was that the man was “cancelled” for being a pacifist. Of course, this example involves state action, whereas cancel culture involves the behavior of private actors. Nevertheless, our history can and should inform our strategies for private punishment of speech. We should never lose sight of the fact that beliefs that we now view as admirable were once viewed with disdain and even hatred by earlier generations. Hubris is dangerous; we are unlikely to have, at this precise moment, arrived at all the right answers regarding both facts and values. Freedom of expression allows us to explore what we have right and what we have wrong.

There are reasons for protecting freedom of expression that go beyond protecting ourselves from tyrannical governments. The ability to express oneself freely is important for living a meaningful, flourishing human life. We are nourished by the words of others and responding to others is part of how we create ourselves. When we nurture our children into the people they’ll become, we provide them with many outlets for expression but also with plenty of room to get things wrong. Building a worldview is a messy process and none of us get through it without making significant mistakes. Respect for the dignity and humanity of another person requires compassion in the face of mistakes that they will inevitably make. One of the most compassionate ways to rectify mistakes is through the patient exchange of ideas, which involves encouraging freedom of expression rather than stifling it. What’s more, antagonistic climates are likely to deter people from developing as thinkers. We want citizens to do more than simply take life as it comes, we want them to take an active interest in developing coherent, consistent worldviews, ideally strongly informed by evidence. The threat of being torn apart if something goes wrong may be enough to make plenty of people give up on the enterprise altogether.

At least some objections to cancel culture have to do with its underlying assumptions. “Canceling” someone for their speech is an act of retribution, which is motivated by the idea that individuals who express problematic views should “get what they deserve.” There are both broad and narrow reasons to be concerned about this. The broad concern is that there are compelling reasons to be skeptical of retributivism as a theory of punishment in the first place. The idea that retribution is the path to justice is a popular one — if you pluck out my eye, I get to pluck out yours. This view portrays justice as something to be exacted rather than as something to be achieved; it maintains that when a person exacts retribution, they somehow get back what the bad actor took. In her book Anger and Forgiveness: Resentment, Generosity Justice, Martha Nussbaum refers to this sentiment as the “payback wish.” People frequently believe that when they are harmed, severe punishment for the wrongdoer will somehow right the wrong. This simply isn’t so. When someone expresses a view with which we disagree, causing that person significant harm in response will not make their speech disappear. If a person feels harmed by another person’s speech, “canceling” the person who spoke will not undo the harm.

The narrow concern has to do with the severity of some of the retributive actions that take place in the climate of cancel culture. Even if one is inclined to believe that proportional retribution is justice, often the consequences for unpopular speech are not proportional. For example, recently, UNC Wilmington professor Mark Adams made national news for making a series of reprehensible comments on social media. He was encouraged to retire from his position, and he was compensated handsomely for doing so. On July 24th, 2020, he was found in his home, dead from a bullet wound. The official cause of his death has not yet been released, but many suspect suicide — it is plausible to speculate that the backlash that resulted from his callous behavior created for him a world in which he no longer could stand to live. It’s one thing to say that there should be consequences for harmful speech — there should. If an author engages in problematic speech, it is reasonable to refrain from buying that author’s books. Making that decision isn’t an instance of “canceling” anyone. The person who did something wrong isn’t off the hook, they should reflect on their actions and take responsibility for them. That said, the set of reasonable consequences for harmful speech doesn’t include bullying someone until they commit suicide.

All of this is not to say that the careful and conscientious exchange of ideas is some kind of magic elixir that can solve all of the world’s problems. Realistically, in most cases, if a person is a racist, misogynist, or conspiracy theorist, trying to talk them out of any of those positions will be a significant waste of time. Belief in the value of free speech shouldn’t itself turn into a form of dogma. We need to look at our social problems straight in the face in order to find solutions. We need to be realistic, also, about when people are engaging in discourse in good faith and when they aren’t. We only make progress when all participants enter the discussion with some epistemic humility. That said, exhibiting epistemic humility need not, and in many cases should not, involve commitment to the idea that all ideas are equally reasonable, evidence-based, or likely to be correct.

What, then, do we do when civil discourse isn’t successful at changing minds and hearts? The cases that we care the most about are cases in which there is a lot on the line; they are cases in which people stand to suffer a great deal as a result of the speech of powerful others. Is cancelling people the only viable alternative? In his “Letter from a Birmingham Jail”, Martin Luther King Jr. explained why the demonstrations for which he was arrested were necessary. He directed his remarks at members of Alabama’s religious community who had advised him to wait or to express his demands in different ways. He pointed out that the political leaders “consistently refused to engage in good faith negotiation.” He concluded that those fighting injustice “had no alternative except that of preparing for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and national community.” King’s critical insight was to turn to other peaceful and meaningful forms of persuasion when patient dialogue led nowhere. One of the most powerful moves in his playbook was to appeal to the common humanity and dignity of others — even racists.

Creative and productive responses to ugly speech are possible. Cancel culture, at least when it comes to speech, is often fueled by rage and mob mentality — hardly the most noble human motivators. What’s more, if the goal is to change the mind of the bad actor, insisting that they should nevermore be listened to or taken seriously as a rational expressive human being is unlikely to get the job done. If one authentically commits oneself to the task of elevating discussion regarding important social issues and of getting rid of antiquated and harmful attitudes, one will employ strategies that actually work. Anything else looks like an attempt to satisfy the payback wish.