Friday, March 10, 2023

Who's Legitimately Protest-Worthy?

Let's divide the expression of certain opinions into four categories.

  1. Correct. This is speech one outright agrees with -- you think is correct on the merits.
  2. Legitimate. This is speech you do not agree with, but you concede is within the bounds of legitimate argument. "Reasonable minds can differ" and all that.
  3. Permitted. This is speech which you neither think is correct or legitimate, but which you agree one has the formal legal right to say.
  4. Impermissible. This is speech you think should be legally prohibited. 
In the United States, of course, the "impermissible" column is a narrow if not non-existent category, at least, with respect to opinions. And we're all relatively capable of figuring out what speech we agree with. So most of the interesting action comes in whether a given act of expression falls in the second or third category -- that is, whether speech we disagree with is nonetheless legitimate (within the bounds of reasonable argument) or merely permitted (an unreasonable view that nonetheless must be tolerated as part of our commitment to free expression). (This distinction was presaged in my "Academic Freedom versus Academic Legitimacy" mini-essay).

To a large extent, the cultivation of a "free speech culture" is about trying to ensure that the "legitimate" category remains relatively expansive (that we aren't too trigger-happy in placing all speech that we don't think is correct in the merely permitted category). And what makes "free speech culture" a difficult concept is that even as we might agree we should cultivate a strong inclination towards slotting most speech we disagree with into the "legitimate" category, there absolutely are plenty of cases of speech which should be viewed as merely "permitted". I don't think we can ban Holocaust deniers -- their speech is permitted -- but we should absolutely not view them as expressing a legitimate opinion on which reasonable minds can differ.

This is all by of introduction to what I actually am curious about, which is how to apply this framework to protests of speech (here I'm imagining a situation akin to the protest of a speaker invited to give a public lecture, as opposed to broader protests regarding a social or political phenomenon. Picketing a speaker rather than BlackLivesMatter). To wit: Does anyone view themselves as legitimately protest-worthy?

Protests are a form of expression. Stated loosely, when people protest a given speaker, that protest is an expression of a position that this speaker is sufficiently terrible in some relevant respect that it would be wrong and improper to engage with them via the normal deliberative process. And as expression, protests can thus be grouped into the above framework. Some protests we think are correct (yes, this person is so vile and outrageous that they should be protested). Some we think are legitimate (we might not personally share the belief that this person is some terrible as to be protest-worthy, but we recognize that reasonable minds can differ in that assessment). Some we think are merely permitted (the protesters are being unreasonable in their assertion that such-and-such person is that terrible, but they nonetheless have the formal right to protest). And we can imagine protests we think should be outright impermissible, though again, under the First Amendment the set of protests which can be declared unlawful on basis of their opinion is narrow if not nonexistent.*

So: Imagine you are the subject of a protest. Presumably, you don't think the protesters are correct (that you're a vile individual who should not be engaged with via the normal deliberative process). But assuming you accept the American legal tradition, you also don't think protest is impermissible (that it  should be illegal to protest you -- though again, this doesn't mean that all particular modes of protest have to be permitted). So the action is, once again, between the "legitimate" versus "permitted" categories. But it's hard for me to imagine that any individual would ever think they are legitimately protest-worthy. And notice how this is different from how most speakers would treat substantive disagreement. There are many circumstances where one might face a challenging question and think "well, that's not my position, but I think it's a fairly-raised point that reasonable people should consider." It's hard to imagine a circumstance where someone would say "I may disagree, but reasonable minds can differ about whether I'm the sort of vile individual who should not even be met with normal deliberative engagement." All protests, to the protested, will be viewed as falling in at best the "permitted" category. 

Why does this matter? As we said above, the concept of "free speech culture" is in some ways about cultivating an inclination away from removing disagreeable speech from the "legitimate" category and deeming it merely permissible. We should be willing to consider -- not just on a formal legal level but on the level of practical public judgment -- a wider array of challenging opinions that we might otherwise be naturally inclined to accept. But protests put systematic pressure on this inclination because the protested party will always view their circumstance as falling outside the "legitimate" category, and so present a perpetual pressure point pushing away from "free speech culture". 

Admittedly, part of the reason why is that protests themselves probably are assertions that the speech in question falls outside the "legitimate" category. So we have dueling claims of illegitimate speech -- the protesters say the speaker is illegitimate; the speaker says the protesters are illegitimate. But that underscores the problem rather than solves it -- the entire structure of protests, including opposition to them, exerts pressure against "free speech culture".

I mentioned earlier that the challenge of "free speech culture" is that the inclination towards categorizing speech as "legitimate" still has to be one exercised via individual and case-by-case judgment, because there absolutely are cases (probably many cases) of speech that should not be viewed as legitimate even if it is permitted. There are circumstances where it is proper to view a given speaker as illegitimate (even if permitted); there are circumstances where it is proper to view a given protest as illegitimate (even if permitted). There's no dodging out of personal accountability and discipline here.

But there does seem to be at least one asymmetry in the situation I've identified: the protesters at least in concept could go through the process of individualized assessment and judgment (is this speaker truly in that beyond-the-pale, illegitimate category?). They may get that assessment right or wrong, but the outcome is not structurally foreordained. The protested party, by contrast, I suggest will always come to the conclusion that the protest is in the illegitimate category; there's no realistic circumstance where
he or she will concede "you know, the protesters do have a valid point in how they view me."

I'm not really sure what to do with this observation, but it struck me as interesting.

* To be clear: There are all sorts of ways that a particular way of protesting can be unlawful -- but those mechanisms are unlawful regardless of the underlying opinion being expressed. For example, we could say that "shout-downs" are an impermissible form of protest -- but the point is they're not impermissible contingent on who is being shouted down. They're impermissible regardless of whether their target is the Dalai Lama or David Duke. And by the same token, a protest that does not take one of these impermissible forms cannot be deemed unlawful no matter how unreasonable or absurd we think it is that a protest is targeting someone like that -- people are permitted to protest the Dalai Lama, even if I think that's an utterly absurd and unreasonable (i.e., illegitimate) thing to do.

1 comment:

Ian said...

Interesting post!

I think you're probably right that no speaker thinks they are protest-worthy. But Peter Singer comes to mind as an example of someone who maybe could (or should).

Disability rights activists frequently protest Singer's talks in response to his views on disability. Roughly, he thinks disability inherently makes a person worse off, so it would be better for the world if there were no disabled people in it. He takes this as a reason to terminate many pregnancies with prenatal diagnosis of disability.

What is interesting about his case is that the conclusions he draws are based on the contested claim that disability inherently makes a person worse-off. The disability rights community has long flatly rejected that claim and, it seems to me, they've got the better arguments and evidence. Singer's views about the role disabilities play in the lives of disabled people are probably false.

I suspect Singer would say: "we should be having a rational debate about the welfare of disabled people, which is why these protests of me are illegitimate."

But I also think he MIGHT say: "I recognize that if I am wrong that disabilities inherently make a person worse off, then my advocacy for abortion and infanticide of disabled babies would be legitimately protest worthy, because it would be monstrous."

From there, it seems a small step to: "I recognize the legitimacy of protests from people who reject the claim that disabilities inherently make a person worse off."

The quality of discussion of underlying contested claims might improve if speakers acknowledged the legitimacy of protest in situations this kind of structure. The structure I have in mind, I guess, is something like: the speaker's conclusions would obviously be protest-worthy if a contested premise in the speaker's argument turned out to be false.