On Freedom and Speech

Codes of Conduct push us back up the slippery slope that brought us to a low point where personal insults and threats of violence are considered an acceptable part of public discourse.

Three events spurred on the final publication of this post, which has lived as various drafts on my blog for the better part of two years: This week, Sarah Palin accused American politicians of wearing (…) political correctness kind of like a suicide vest,” a group including Facebook launched theOnline Civil Courage Initiative, aimed at curbing online hate speech, and a proposal for a Code of Conduct for the PHP community was withdrawn after a flood of online rage.

I am not going to discuss Palin, Facebook, or the PHP community. Instead I’ll share some of my thoughts on Freedom of Speech, Hate Speech, and the idea of speech as an act. It should be pointed out that I come at this from the perspective of a philosopher, not a constitutional scholar or one of international law.

I invite you to take part in this conversation. Keep it civil and on topic.

The Right to Speak

At an event late last year, I took part in a lively discussion among friends about Codes of Conduct and how to enforce them. One of the participants brought up a common argument: “I will always defend your right to offend me.” This is a variant of the standard argument against any type of moderation, control, or censorship of speech, and it stems from a fundamental belief that Freedom of Speech is an absolute freedom:

Freedom of Speech means you can say whatever you want without fear of repercussions.

This belief stems from the core idea that every person has the right to hold their own beliefs and express those beliefs. Thus follows the conclusion that any attempt at moderating, controlling, or censoring speech is in fact an attempt at moderating, controlling, or censoring opinion.

We find clear-text versions of these ideals in the Universal Declaration of Human Rights:

Article 1.
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 18.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Various countries also have their own, more specific, versions of these rights that grant further rights and freedoms.

Reading these definitions, in particular Article 19, it is easy to think that we do have the right to say whatever we want. And we do. However, that right neither trumps nor infringes upon other rights in the declaration. This, I think, is where the confusion arises and much of the current debate is stuck.

The Right to Safety

Articles 3,  5, 12, and 29(2) of the Universal Declaration of Human Rights are of import here:

Article 3.
Everyone has the right to life, liberty and security of person.

Article 5.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 29. 
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

What these rights lay out is a framework under which all humans are granted equal rights to protection; from challenges to their security; from mistreatment; from interference; and under which each human is responsible for protecting and upholding the rights of others.

There is an apparent juxtaposition here, between the rights to believe and say whatever you want, and the rights of the audience to be protected from acts that interfere with their security, which may result in mistreatment, etc.

I say “apparent,” because there is no conflict here. The Universal Declaration of Human Rights is a singular declaration, not a combination of individual articles. The right to expression is there as long as that expression does not interfere with any of the other rights granted the audience. Freedom of Speech is not the primary right; it is part of a larger whole that in totality provides us all with freedom.

Political Correctness

This is where critics moor their concerns over the “Tyranny of Political Correctness”. An example of this argument would be something like “I’m not able to say what I think because you use your claim of being oppressed by my speech as a tool to silence my valid opinions.”

In my view, this is a severe and deliberate misinterpretation of the idea of rights and protections. It malforms a specific set of rules set out to protect humans from direct infringements on their rights to safety and protection, and portrays it as an arbitrary tool used to infringe on the freedoms of expression of others.

When we talk about harmful speech, we are not typically referring to general expressions of opinion. Harmful speech is highly contextual, and occurs when a speech act is directed towards the recipient and the recipient’s status is changed because their rights are infringed upon.

Take the following situation:

During the recording of a reality TV show, a host, reveling in the excellence of a dance performance by an amateur, exclaims: “Shut up! I’ll stab you in the eye!”

In the context of the conversation, there is no perceived threat, and although the statement is somewhat odd, it is not an infringement on the rights of the recipient to life, liberty, and the security of person. In fact, in the context this statement can be interpreted as a strong and sincere compliment.

Now change the situation:

An unknown person sends a message to a person over social media stating “Shut up! I’ll stab you in the eye!”

In this context, the recipient has no way of knowing whether this is a random statement, a poor attempt at a joke, or a genuine threat of violence. In this case, one could argue that the recipient’s rights to life, liberty, and the security of person have been infringed upon because their status has changed. In the conversation, they are no longer a participant, but a possible target of future violence.

Free speech supporters will immediately stop here and say “The recipient can’t assume they are under threat here. Words are just words.” I disagree.

If a call is made to a public building with a statement suggesting a bomb or other violent attack, that statement will be taken at face value and precautions will be put in place. Whether or not the statement reflects a genuine intent to commit a violent act is irrelevant. The status of the people in the building in question has changed from people going about their business to possible targets of future violence. And the person calling in the statement will be under scrutiny and quite possibly prosecuted and convicted of uttering a threat.

In this circumstance, words are not just words. They are actions. And there is no substantive difference between this threat and one against a single person, issued over social media.

Speech Acts

To me, this all boils down to speech acts and their consequences. When we say or write words, we are not merely stringing syllables or letters together to form coherent meaningful sentences. We are enacting change on the world. When Romeo professes his love for Juliet, his words are not merely sounds, they are a tool used to project his feelings onto Juliet with the intent of changing her status from conversational partner or friend to romantic partner, and this can only happen if his words actively change the way she sees herself. This is an act in every sense of the word, as much as a promise, a commitment, a judgement, a command, is an act.

When we talk about speech and oppression, it is easy to fall into the “words are just words” trap because on the face of it, words seem harmless and can always be excused. In the end, only the speaker knows the true intent of their words, and any interpretation can be called a misinterpretation. This is a problem, but it is not an unsolvable one.

Where Is The Line?

When we look at situations in which a person claims words have infringed on their rights, we should start by looking at the speech act and its consequences. One way to do this is to ask questions:

  1. What was said?
  2. What was heard?
  3. What was the reaction of the recipient?
  4. What is the relationship between the speaker and the recipient?
  5. What was the context in which the utterance occurred?
  6. Can we objectively conclude that the recipient would be able to understand the intent of the speaker?
  7. Was the status of the recipient changed in a negative or significant way due to the utterance?

The purpose of these questions is to unpack the situation and investigate both what happened  (the saying / writing of the words), and what the consequences were (how did this change the status, or perceived status, of the recipient). A major part of this process is the acceptance of the recipient’s reaction and immediate response to ensure the person feels heard and respected, regardless of the eventual outcome. Likewise, the process must treat the speaker fairly and leave room for the reality that many conflicts are caused by misunderstandings or misinterpretations. It is important to defuse and de-escalate the situation to ensure any harm done is limited to the interaction in question and does not have secondary effects.

In the process of evaluating the situation, impartiality and objectivity are paramount qualities: Is the status change of the recipient objectively recognized, meaning if someone else in the same context and with the same relationship to the speaker was subjected to the same utterance, would their status change in the same way?

This last part is the most complex component, because it appears to be a challenge of empathy while in reality being a challenge of acceptance: When judging the consequences of a speech act, we cannot simply “put ourselves in the recipient’s shoes” because every person is unique, and we know little about their previous experiences and cannot see the world from their point of view. Instead we have to accept their disclosure as genuine, investigate what led to this reaction, and effort to generalize these prior experiences enough that we can make an impartial objective judgement.

For this to work, cool heads and a focus on de-escalation are paramount. As empathic creatures, we are programmed to react immediately and strongly to these types of situations, and we tend to make snap judgements based on our own personal experiences. To judge a situation objectively, we have to step outside ourselves and look at the situation from the outside, consulting with others in similar situations, and making every effort to map out how the group the recipient belongs to would react given a similar set of circumstances.

This in turn is a process with serious flaws. Objectors will argue that groups with specific agendas can hijack such processes to impose unjustifiable limitations on other groups. While this is true, it is also hard to pull off without everyone around seeing what is going on.

Take the example of harassment of women online through social media: An objective study of statements directed toward women online, which include threats of violence, sexual harassment, the publishing of personal information online, ongoing harassment of individuals, their friends, and their families, etc, will conclude these are direct violations of these women’s rights, including their rights to life, liberty, and the security of person. In spite of arguments from the speakers that it is their right to Freedom of Speech that is being infringed upon and that so-called “Social Justice Warriors” are conspiring against them, there is no question that the acts listed above are beyond the protections of “freedom of opinion”. These statements are not “just words”, they are deliberate acts with a deliberate desired consequence in mind: To change the status of the recipient from that of conversational partner to that of person in fear of their life and safety.

Freedom of Civilized Speech

Let me return to the statement from my friend:

“I will always defend your right to offend me.”

At this point I hope I’ve been able to explain why this statement is neither a challenge to the adoption of Codes of Conduct nor a necessary protection of Freedom of Speech. When we talk about moderating speech or eliminating hate speech online, we are not creating a proverbial “slippery slope” that will lead to outright censorship. We are codifying a framework under which a civil discourse can take place without participants having to fear attacks from others. I would argue Codes of Conduct are introduced to push us back up the slippery slope that brought us to a point where personal insults and threats of violence are considered an acceptable part of public discourse.

Most arguments against Codes of Conduct fly under the umbrella of protection of freedom of speech, but are in reality arguments stating that verbal attacks on discussion partners are not just expected, but required for a discourse to take place. Any attempt at keeping the conversation civil is thus branded as oppression and censorship in the name of “Political Correctness.” This is patently false. You do have the right to your own opinions, and you do have the right to voice those opinions in any way you want. You do not have the right to use attacks on other people or groups as a tool to silence them or put their opinions in a bad light. You do not have the right to infringe on other people’s right to partake in the discussion on an equal footing. You have a responsibility to ensure your speech does not turn into acts that change the status of your conversational partners, especially if that status change results in a removal of their rights.

If you have an argument you want to put forward, it has to be on topic, not an attack on another person or group of people. Discussions of matters of importance should be conducted in a civilized way that ensures every view is heard and the conversation is focussed on substance, not the subjects taking part.

Codes of Conduct are in place to protect everyone’s rights: They ensure a space in which a civil discourse can take place without anyone resorting to personal attacks and creating an environment that becomes inaccessible or actively hostile to participants or groups. Codes of Conduct ensure open spaces for freedom of expression.