Two more entries on my recent fascination with free speech and the private sphere
. Unfortunately, these are not exactly of the highest quality.
The first is an atypically bad post
from Ken White, arguing against calls by Professor Thane Rosenbaum to take a more European (read: stricter) approach towards "hate speech". White takes significant issue with the famous Oliver Wendell Holmes quote that one may not falsely shout "fire" in a crowded theater. White is fair to note that this rhetoric was originally deployed not
to defend a speech restriction which was responsive to such a clear and present danger, but rather to uphold considerably more authoritarian restrictions around World War I. Which, fair enough, and fair enough to note Holmes' later repudiation of those cases. But I don't think Holmes (or White, for that matter) ever disavowed the literal statement at issue -- free speech would not protect that false cry of fire in a crowded theater. Which is to say, we do
prohibit certain types of speech in certain types of contexts. That doesn't answer the question of scope, but it does throw a crimp on simply relying on a mythical absolutist defense of speech. To say that by quoting that language " you're echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself" goes way, way too far.
Ultimately, White's conclusion -- that prohibitions on hate speech are more likely to oppress rather than defend minorities -- is the strongest point in favor his position. But he hardly needs to take the detours he does to get there.
Meanwhile, Jenny Jarvie
has one of those annoying columns that comes so close to making an important point, only to swerve away into inanity. She writes about a local Atlanta magazine whose editor -- known to be a provocateur -- wrote a really offensive column about a recently deceased pillar of the community who happened to be widely beloved by most of the magazine's core readership. Backlash ensued, including many people boycotting the magazine, which now is at risk of going under.
Jarvie characterizes the question as boycotters wanting to "silence" the magazine. Which, well, no and yes. In the literal sense, nobody is being "silenced", they're just being ignored -- the problem being that a media outlet that's ignored is a media outlet that soon will go out of business. But at some level, the entire point of the market place of ideas is to replace bad ideas with better ones. In that sense we should
hope that horrible, offensive comments are "silenced" -- silenced by the fact that they don't have an audience willing to pay for them or a constituency willing to stand by them. If the marketplace of ideas doesn't accomplish that, what's the point? It is frankly bizarre to act as if it is a bad thing when people, through naught but the power of private persuasion, are moved to refrain from airing horrible ideas and encouraged instead to voice better ones.
What Jarvie almost gets at but never quite goes into is the sense that the community wants to "punish" the editor for saying such horrible things, but does not want it to go so far as to destroy his entire magazine. Punishment is deserved, but proportionate punishment, and the worry is that the train has gotten out of control. And this is
an interesting problem. The private sphere can regulate bad behavior, but only quite bluntly. Many of the persons boycotting the magazine would probably not, if given the power, decree that it should go bankrupt -- they view the punishment they're ordaining as symbolic criticism (appropriate and proportionate) rather than an economic death sentence (disproportionate). We don't have a way of controlling for the effects of aggregation, and that's a big problem. Ironically, government is far, far better at this -- by maintaining a monopoly on sanction, they can make punishments more precise and ultimately more just. Which isn't to say that the government should step in such cases -- as noted above, there are lots of good reasons why that's a bad idea -- but it might be a ledger mark in its favor.