Sunday, December 22, 2013

Free Speech and the Private Sphere

I've been thinking about the concept of "free speech" as applied to private criticism. This has come up most recently in the flap over Duck Dynasty star Phil Robertson's statements regarding gays and Blacks, and the resulting calls to boycott the show. Some people have responded by saying the critics are violating Robertson's free speech rights. Others have replied that no such thing is occurring, since we are not talking about government censorship but rather private counter-criticism -- free speech in its own right. Take Popehat, for example:
The phrase "the spirit of the First Amendment" often signals approaching nonsense. So, regrettably, does the phrase "free speech" when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred+ First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn't like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks "why was it necessary for you to say that" or "what was your motive in saying that" or "did you consider how that would impact someone" to the second person and not the first. It's ultimately incoherent as a theory of freedom of expression.
These are good points, particularly the idea of the Preferred First Speaker. So the following isn't meant to be critical.

But what does it mean that so many people really seem to believe that private retaliation -- whether in tangible forms such as economic boycotts or firing someone from a job, or even intangible form such as overly vitriolic responses -- poses a threat to free speech on par with government censorship? Does that mean we have to maybe reevaluate the concept a bit?

After all, if the issue really is just a problem of "chilling", private actors can do that nearly as well as the government. Maybe not quite as efficiently -- the government's power to imprison you is difficult to top -- but most people would view the loss of their job or even the loss of fraternity as a sufficiently grave deterrent to avoid voicing certain opinions. And as everything from the continued worries over "cyberbullying" to my own "Criticism as Punishment" post indicate, people seem to perceive these sorts of private sanctions as punitive in nature.

Again, none of this is to say that we should actually treat hostile private reactions to speech as on par with government censorship of speech. A functioning public sphere requires that we be able to criticize, sometimes harshly, and requires that we be able to react negatively towards the speech of others, even stridently. But again, the fact that there is such a large popular consensus that is a real and genuine problem does counsel that this is a problem that requires deeper thoughts than just drawing a line between public and private and leaving it at that.


Burt Likko said...

But private actors have a wide array of incentives influencing their responses to speech or the speech they make themselves. I quail at the thought of trying to define some sort of rule that might penetrate into the quasi-public realm of private speech.

Just as an example, the PruneYard case from California is worrisome on a lot of levels, and you'll notice that the California courts have subsequently dialed PruneYard back pretty much to its facts.

Or, relevant to the case at hand, what if A&E experiences a dramatic drop in viewership after letting the Duck Dynasty folks back on the air? Is that A&E just cancelling a show that isn't getting the ratings anymore and is dragging the rest of the network down with it? Or is that A&E using its power as a private corporate actor to suppress free (if obnoxious) speech? The former seems more likely, and thus a more defensible sort of motive, even if the effect is the same -- and it's a blurry line indeed between "our ratings have declined because of you" to "we reasonably suspect that our ratings will decline because of you" to "we fear that our ratings will decline because of you." I don't want to be the one to have to fashion a rule seeking to brighten that line and especially not rules to remedy when that line has been crossed. I'm not sure it can be done.

The easy line that we can see is one distinguishing between government and private action. A discernable, if somewhat blurrier, line may be found in determining the reasonability of time, place, and manner restrictions.

PG said...

I strongly suspect that the belief is purely opportunistic. Check how many people believe BOTH that Robertson had a free speech right to remain on A&E, AND that Chris Kluwe has a free speech right to remain a punter for the Minnesota Vikings. Moreover, when pressed no one thinks you really ought to be able to say whatever you want to your boss and keep your job. No one is going to rally for my right to tell my boss he has an ugly baby without suffering consequences for my free speech.