- Rethinking Democracy - http://molvray.com/govforum -


Defining Terms


Limits to power aren’t just for the powerful. They have to start with the individual, with each and every individual. Rights are supposed to provide those limits, to demarcate the borders so that everyone has the most freedom compatible with an equal level for others. However, equality is so far from realized that the word has become Orwellian: some are always being more equal than others.

Given how well-articulated and well-known the basic rights are by now, the pervasive difficulty of actually implementing them has to be due to an equally pervasive factor. External factors, such as apathy or ignorance, should vary independently of rights. They shouldn’t be able to result consistently in the same losses and the same pattern of losses that we see repeated over and over again. Rights are gained or regained in a social convulsion, and then the slow erosion repeats. The uniformity of failure suggests the fault has to be endogenous, a problem with the understanding of the rights themselves.

However, at the most fundamental level there doesn’t seem to be much to misunderstand. All rights share one quintessential feature: they apply equally to everyone. When that’s not true, they’re not rights. They become privileges. So far, so clear, but then it rapidly becomes less so.

The rights themselves are not all created equal. Some depend on others. For instance, freedom of assembly is meaningless without freedom of movement. Their relative importance can also vary. Perfect guarantees of security of life and limb become useless without any freedoms to make life worth living. On the other hand, freedom doesn’t mean much when keeping body and soul together takes all one’s time. Last, some rights are just plain missing. The right to make a living is included in the Universal Declaration of Human Rights, but it’s really more of a hope everywhere in the world. And yet it’s obvious to the meanest intelligence that without a livelihood no other freedom means a thing.

So rights are not equal. They can depend on other rights, vary in importance, or be entirely absent. However, those factors don’t receive the same attention as the equal application of rights to all. The latter is critical, of course, but it can also be meaningless if one of the other factors is in play. If people are to use, in fact, the rights they have in theory, then all the factors are critical. Obscuring that point by focusing only on the equal application of rights does nothing but render the right useless. Sometimes it seems that the focus is not an accident, since it allows weightier parties to say they’re for the equal rights while pulling the actual situation their way. Then conflicts aren’t resolved on the merits, which leads to the usual descending spiral of encroaching power. It is not simply a philosophical exercise to figure out how to resolve the inequality between rights. It is essential.

The first step is to enumerate how the inequality among rights plays out. Which ones, exactly, take precedence? This is a ticklish issue, since nobody wants the rights dear to them declared insignificant. The usual way of handling it is to gloss over it. The Universal Declaration of Human Rights, for instance, has a couple of articles at the end pointing out that no right may be construed so as to abridge other rights. That’s a rare acknowledgment that rights can conflict, but it’s also ironic because a little higher on the same page are two rights, one of which has to abridge the other. It states that everyone has a right to education that promotes personal fulfillment, peace and tolerance, and then it says that parents have a “prior right” to determine their children’s education. But, despite the injunction against abridging, there’s no word on how to handle a parental choice of militant patriotic or religious indoctrination for their children.

Examples of direct conflicts between rights are many. Is vaccination more important than respect for the right to refuse medical treatment? Is it never, always, or sometimes more important? Does freedom of speech trump freedom from persecution? Can speech insult religious icons? Can it threaten death by mail? Or on the web? What is the difference between speech and persecution when it’s a telemarketer’s call?

Rights can also be related in other ways besides a straightforward conflict. Depending on point of view or context, the same right can be vital or irrelevant. Someone trying to pass a final exam isn’t hoping to exercise the right to free speech. A person facing a murderer’s gun may not share Patrick Henry’s feelings on the relative worth of liberty and life. The dependencies of different rights can change, too. Freedom of religion for a mystic does not require the right to assemble in the same way as it does for, say, a Catholic. A whole series of interlocking and changing issues all need to work together to resolve rights into their correct relationships, and even then they’re only valid in a given situation. The complexity is more reminiscent of biology than logic. Rights may be universal, but how people feel about them isn’t.

Given the complexity, and especially given its mutable nature, looking for static answers seems foolish. And yet the concept of adapting to reality is sometimes rejected out of hand because it would lead to a legal morass. That is a strange approach. Saying “away with complexity!” doesn’t make it so. The Dutch might as well decide that this business of having a fluid ocean makes life too difficult, so dikes will be built as if the sea was solid. Writing laws that ignore reality is equally senseless. It’s the legal system that must adapt, not the other way around. Expecting laws to create their own reality is just magical thinking.

The complexity of the situation doesn’t make it hopeless, however. Simple rules can often deal with an infinitely complex reality, and the same is true here. Specific static answers may be impossible, but the rule of equality can find a way through much of the complexity even when the answers themselves depend on each given situation. No situation has exactly the same blend of important factors, and equality just needs to be balanced among all of them, not limited to one.

Another objection made sometimes is that striving for equity is naive. It requires a definition of fairness, which is a subjective matter and thus doomed to failure. It’s said to be better to rely on something quantifiable, such as a cost-benefit analysis. I’m not sure whether that view is based on willful ignorance or the plain variety. Surely, it’s obvious that cost-benefit analysis can only begin after deciding who pays the cost and who gets the benefit. That can’t be decided without rules about what’s fair, or, alternatively, about what some people can get away with. Cost-benefit analysis can’t take away the need for the step it rests on. It can, however, muddy it. Possibly, that comfortable obscurity is the attraction of pretending the first step can be ignored.

Dealing with that first step of defining fairness is not impossible. It’s not any specific or static situation. It’s that everyone has equal rights. Each individual enjoys the widest possible range of rights that is compatible with the same range for others. The essential step in applying the idea is that some rights depend on others, and that the totality must be preserved. No single right takes precedence over all others.

The principle that rights must apply equally, and that the priority of rights may change in order to preserve that equality, can provide a resolution of some conflicts on that basis alone. For instance, it’s not hard to see that allowing a religion, any religion, to dictate speech will make religious freedom meaningless. If everyone is to have both freedom of speech and of religion, speech has to have priority. Giving religion priority would paradoxically end freedom of religion, since any offensive expression associated with another set of beliefs could be prohibited.

Missing Rights


So far, so good, but even that blindingly obvious example gets into trouble rather fast. Freedom of religion is meaningless without freedom from persecution, and some speech can certainly feel like harassment to the recipient. The current solution is to try to put conflicting demands on the same right: to promote free expression and to throttle it back; to promote freedom of religion and to refuse it a congenial environment. That’s doomed to failure.

However, logical absurdity is not the only choice. The irresolvable nature of the conflict is a symptom not of inevitability but of a deeper problem. The borders between the two rights aren’t good enough. They leak over onto each other’s territories. The solution is not to let one or the other leak preferentially, but to plug up the gap. The solution is to find what’s missing, and that actually doesn’t seem too difficult in this case. What’s missing is the right not to hear.

The lack of an explicit right to control our own sensory inputs is at the root of a number of modern frictions. The technology to amplify our ability to bother each other, for good or ill, simply wasn’t there before. The lack of a right not to hear is doubly odd because it would seem to be an obvious parallel to other well-established rights. For instance, control over our own bodies means more than freedom of movement. There’s also the right to refuse medical procedures, to be free of assault, and generally to limit other people’s ability to impinge on us. We control not only what we do, but also what other people can do to us. Yet when it comes to sensory matters, we have freedom of expression, but no equivalent right to refuse inputs from other people. That’s a recipe for disaster which is in the making all around us.

Aggressive marketing, whether commercial, charitable, or political, is currently considered a minor annoyance worth suffering for the sake of free speech. The advertisers aren’t expected to control themselves. The targets are expected to “tune it out.” Interestingly, research [8] shows that the effectiveness of advertising depends on the extent to which it is tuned out. That makes the injunction to ignore it downright sinister. (Repetitive messaging is discussed at greater length under Advertising [9] and in Education [10].) We’ve become so habituated to advertising that it takes a new angle to remind us just how intrusive it is. There is now a technique to use focused sound that reflects off the inside of the cranium (1 [11], 2 [12]). At the focus of the speakers, you hear voices inside your head. Marketers placed these things on buildings to advertise a movie about ghosts by making passersby hear what seemed to be ghosts. It came as a surprise to them that people were outraged. (The marketers were surprised. Not the ghosts. They have more sense.) There is no real difference between reflecting sound off a wall or a skull to get to the auditory nerve. The only difference is that we’re not used to tuning out the latter. But once we’re used to it, the tendency is to accept that it’s somehow up to us to deal with it. It takes a new intrusion to remind people that, no, it shouldn’t be up to us. We have a right to silence.

Although the right has yet to be articulated, it’s already starting to be applied. It’s so obvious to so many people that even in the U. S. of A., where the dollar is king, a Do Not Call Registry limiting marketing by phone is one of the most popular laws of the last decade. Stephen Fry [13], champion and master of communication that he is, has made the same point about avoiding unsought words: “No matter who you are no one has … a right to address you if you don’t want to be addressed.” However, the lack of articulation about a right to silence causes helplessness in the face of all kinds of violations, not all of them commercial. Cell phone conversations in confined spaces are another example. The level of discourse about that sometimes echoes the old one about smoking. The “right” to smoke was important and the right to breathe was not.

Soft porn is one area where the right not to see is explicitly discussed even if not always acknowledged. (There is general agreement that we have a right not to see the hard core stuff.) As with telemarketers, sometimes the need for a missing right is so clear, it’s demanded even if we don’t know what to call it. But because we don’t have a name for it the argument is ostensibly about whether parents should decide what’s acceptable for their children. So a parent’s right to control what a fifteen year-old sees is more important than anybody’s own right to control what they themselves see. It’s another farcical contortion symptomatic of unresolved conflicts between rights.

Now that everybody has the ability to din at everybody, 24/7, it’s going to become increasingly obvious that an explicit right not to hear, see, smell, taste, or touch is an inalienable right, and that it has to stop being alienated. As a shorthand, I’ll call it a right to silence in the same way as free speech is used to mean all forms of expresssion.

The big sticking point with any “new” right is how to implement it. It always seems laughably absurd at the time. In the high and far off times, when there was talk of broadening voting rights beyond the landed gentry, the gentry sputtered about the impossibility of determining the addresses of fly-by-night renters. We’ve managed to solve that problem. The same process is repeated with each newly recognized right. Creating a quiet environment is no different. It only seems difficult because it’s a measure of how much intrusion has become commonplace.

The basic rule is that any given expression should be sought out, and if it’s not, it shouldn’t intrude. The old clumsy brown paper covers on sex magazines were a step in this direction. Those who wanted that content could get it, but it wasn’t up to the general public to avert its eyes. Updating that attitude to the electronic age, the idea is that all content has to be opt-in rather than opt-out. If a web site wants to carry ads, a button click could lead to them, but there can be nothing “in your face.” Billboards would be banned since there is no way for them not to be in your face. Magazine articles and advertising would have to be distinguishable and separate. Television advertising would be grouped together in its own time slot, as it is in Europe. Product placement in entertainment would be a no-no.

Obviously, respecting the right to silence would affect current business models dependent on ad-supported-everything. However, simply because a whole industry has fattened on the violation of rights doesn’t mean they must continue to be violated. (For ideas on how to pay for content without ads, see an earlier piece [14] of mine, or the chapter on Creativity [15], which reflects an idea gaining currency in many places, (e.g. 1 [16], 2 [17], 3 [18]). Once again, the distance between respect for the right to silence and our current world is a measure of how far technology has enabled some people to push others and how far we have to go to get back.

Not all implementations of the right to silence require readjustments to the whole social order. The issue of bellowing into cell phones could be solved rather simply, for instance. They don’t have a feedback circuit to allow the caller to hear their own voice at the ear piece. No doubt it was cheaper to make them that way. Mandating a feedback circuit, possibly an amplified one to make people talk very, very quietly, (and usable volume controls to boost the sound from muttering callers) would go a long way to returning cell phone bellowing back to normal speaking tones. Sometimes there are technological fixes.

The thorniest balancing issue raised by a right to silence is the one brought up at the beginning of this discussion: how can the greatest scope be preserved both for offensive opinions and for the right to an unintrusive environment? Bottling advertising or soft porn back up may be very difficult in practice, but there aren’t too many conceptual gray areas. How to draw the lines between conflicting opinions, however, is a much tougher question and it starts with the fundamental one of whether any lines should be drawn at all. Serrano desecrated a crucifix for the sake of art. Hoyer drew Mohammed in a cartoon for the sake of free speech. Should they have been silenced? Absolutely not.

Should the people offended by it have had to notice it? That’s a much harder question. At least in those cases, the desecration happened in venues not likely to be frequented by those faithful who would take offense. (A modern art show, and a general circulation Danish newspaper.) The issue had to be brought to their attention; a fervor had to be whipped up. In that case, if people go out of their way to notice things they don’t like, there is no issue of persecution and freedom of speech takes precedence. Persecution seeks out its victims, not vice versa.

In a different situation, where the wider culture presents a rain of unavoidable and offensive messages, such as an insistence that homosexuality is a perversion, justice seems better served by limiting that expression to venues where people would have to actively seek it out. The principle is always the same, which means the resolution may or may not be. Conflicts should be resolved to preserve the most rights for everybody, and to preserve the most equality among the conflicted parties. Precisely because equality is the goal, the resolution of any specific conflict has to be decided on its own merits.



While I’m on the subject of missing rights, privacy is another essential one. Unlike the right to silence, at least we know it’s name and there’s growing acknowledgment that it should be on the books. However, as a recently understood right, it’s relegated to the status of the new kid on the block: tolerated if it stays on the fringes, but not welcome to interfere with the old big ones like free speech. I’m going to argue that this is backwards. Respect for privacy is fundamental to all the other freedoms and should take precedence as a rule.

To begin at the beginning, what is privacy? What is it that we have a right to? Thoughtful and thorough discussions of the definition of privacy (such as Solove’s “Understanding Privacy” [19]) explore the concept in all its permutations. However, in one important respect there’s a missing element. Just as with all the other rights, it’s not the exact definition or its place in the hierarchy that matters because those change depending on the situation.

Trying to make a fluid issue static is part of the reason it’s generally easy to subvert the intent. It would be better to go to the shared characteristic of all the concerns about privacy. Every aspect of privacy involves the ability to control the flow of information about oneself. Exactly which bits of information need to be controlled varies according to personal feelings. It’s not the information that defines privacy. It is, once again, about control.

Control implies that the individual decides which information about her or him can be stored, where it can be stored, and for how long. It implies that the permission to store it can be revoked at any time. And it implies that potentially private information also follows that rule. It has to be “opt-in” and never “opt-out,” and the permission is revocable.

As with all rights, if they are to be meaningful, the burden of implementing respect for privacy falls on the potential violators, not the victims. A so-called right might as well not exist if it’s nothing but the suggestion that people can spend their time trying to defend against violations. The equivalent in a more familiar situation would be to make robbery illegal but to do nothing to stop it except give the victims, without any police assistance, the “right” to try to find the perps and to try to get their property back. That’s not the way rights work.

Violating a right is a crime and it’s up to the violator not to do it. That is equally true of privacy as it is of personal safety. It is not up to the individual to try to object to violations after they’ve happened. It’s up to the people who want that information to first get permission to have it. So, no, Google can’t photograph recognizable residences. Marketers can’t track your every web click. Credit reporting agencies can’t hold data against people’s wishes. Before anyone objects that then life would cease, remember that loans were made and insurance risks evaluated before the days of centralized databases. There’s nothing impossible about respecting privacy rights. It’s just expensive because a whole industry has been allowed to feed on violating them. That’s only made us used to it. It doesn’t make it good. Neither does it stop the growing resentment that always accompanies violated rights. The anger will burst out eventually, and no doubt stupidly, since we haven’t put a name on the real problem.

One curious aspect of privacy is that as a rather newly recognized right which is not well articulated, it has become an umbrella for several unarticulated rights whose lack is becoming obvious. There’s a sense that privacy is about control, so sometimes what I’ve called the right to silence is conflated with it. This is especially so when the unwanted noise involves sex. Sex is a private matter, one wants enough control not to hear about somebody else’s work on it, so it must be a privacy issue. Because the terms haven’t been correctly defined, it’s relatively simple to argue that sexual content, unless it’s about the viewer, has nothing to do with his or her privacy. The argument then spins off into being about the children. In reality, it’s about different areas of control. The right to silence is control over the extent to which one can be forced to notice the activities of others. Privacy is the right to control one’s own information.

Another issue conflated with privacy is abortion rights. The main thing the two seem to have in common is that both started to be discussed in public at about the same time. Possibly it has to do with the fact that medical procedures are normally private. However, whether or not medical procedures are performed has nothing to do with privacy. That has to do with the right to control one’s own person, one of the most fundamental rights of all. Even the right not to be murdered is secondary, since killing is allowed in self-defence. Similarly, if there was no right to control over one’s own body, patients dying of, say, kidney disease could requisition a kidney from healthy people walking around with a spare.

Abortion muddies the argument only because some people believe the fetus is a person with legal rights greater than those of the mother since it can require her life support. There is nothing to stop women from believing this and living accordingly because there is a right to control one’s own body.

Everyone has the right to live according to their own beliefs. The relevance to abortion is that personhood is necessarily a belief, a social or religious category. It is not a matter of objective fact. Biology can only determine who belongs in the species Homo sapiens [20]. No cellular marker lights up when someone is due to get legal rights.

It bears repeating: personhood is necessarily a matter of belief, whether that’s based on religion or social consensus. Therefore those who oppose abortion because they believe the fetus is a person with special status have to hope they are never successful in legislating how others handle their pregnancies. If they were, it would mean that exceptions could be made to the right to control one’s own person. And once that principle is admitted, then there is nothing to stop a majority with different beliefs from legislating forced abortions.

The fight over abortion is a good example of just how bad unintended consequences can be if there is enough confusion over concepts. Control over one’s own person is different from a right to privacy. So is the freedom to live according to one’s own beliefs. When the issues involved in abortion are correctly categorized as ones of control and beliefs about personhood, then the appropriate social policies are not hard to identify. Individual decisions are not the point here. They may be complex, depending on beliefs. Fair social policies are obvious: everyone has the same right to control their own bodies. Nor can any religion take precedence over that control without, ironically, destroying freedom of religion as well as other basic rights. Privacy is not the issue at any point.

Having discussed what privacy is, and what it’s not, let’s go on to why it is a fundamental right. That seems counterintuitive at first because privacy, in and of itself, is not very interesting. Like the right not to be murdered, it becomes critical only when it’s violated. But, like control over one’s body, control over one’s own information is necessary if other rights are to have any meaning. The only reason that hasn’t always been obvious is that we haven’t had the technical capability to spy on each other 24/7, or to retain every whisper forever. When anyone on the internet — including, for instance, your boss — can look over your shoulder and examine where you live, which plants grow in your window boxes, which gym you visit, who you have sex with, and how you looked in your baby pictures, there will effectively be no freedom left. Everything will have to be hidden if everyone can see it. What you can say will depend on what others approve of being said. Where you can go will depend on where others approve of you going. Old-fashioned police states, which depended on limited little human informants to keep people in line, will come to seem like desirable places with a few minor constraints. The logical conclusion of no privacy rights is no freedom of speech, movement, or assembly.

A common objection to drawing logical conclusions is that the situation would never really get that bad. There’s no need to take the trouble to prevent a situation that’s not going to arise. That kind of thinking is wrong on two counts. One is that it’s symptomatic of evaluating the cost of preserving rights against losing bits of them, and of the tendency to opt for the path of least resistance. It’s too much trouble to fight so we put up with the loss. Then we get used to it. Then there’s a further loss … and so on. The evidence so far does not provide grounds for optimism that things will never get too bad because people won’t stand for it.

But even if there is no problem at all, even if an invasion of privacy never happens, that is not the point. The thinking is wrong on a second, and even more important, count. Rights aren’t abandoned just because nobody happens to be using them. A nation of bores with nothing to say still has to preserve the right to free speech, or stop being a free country. A nation of atheists has to preserve freedom of religion. A nation where nobody has ever been murdered still has to consider murder a crime. And a nation where nobody cares about privacy has to enforce the right to it. It’s not good enough to say that the explicit right is unnecessary because nobody needs it. Having a right to privacy is different from waiting for someone to take it away. We find that out every time a new invasion occurs.

Privacy is a linchpin right that needs to be explicitly included in its real place in the hierarchy.

Right to Live


There’s another vital but missing right, one that’s been identified for decades, one that was noted by statesmen like Franklin Roosevelt, and one that requires plenty of social change in some parts of the world. It’s the right to keep body and soul together under all circumstances, not only the special case of avoiding violent death. There’s a right to make a living, a right to medical care, and a right to care in old age. Obviously, the right to live has to be understood within its social context. In the Paleolithic, people didn’t have the same capacity to provide for each other that we do now. There are limits to how much we can guarantee each others’ lives, but within those limits, there is the obligation to respect everyone’s right to live. Not recognizing that right leads directly to the eventual loss of all other rights as people give them up to make a living. Just the threat of being deprived of a living leads to the loss of rights. The right to live isn’t merely a nice, pie-in-the-sky privilege for when we’re all rich enough to eat off gold spoons. It’s critical to any sustainable free society.

The right to live, perhaps more than any other, makes people fear how the inevitable conflict between rights can be resolved. A right to live costs money, and many people want to be sure it’s not their own money. However, conflict with other rights is not some special defect that makes this one uniquely impractical. All rights have conflicts and need to be balanced. The solution isn’t to rigidly prefer one. It’s to evaluate the situation on its merits and see which solution preserves the most rights for everyone.

The sticking point is how it might work in practice because the greatest good of the greatest number is not the same as a guarantee that wealthier citizens won’t lose by it. The only way to achieve no-cost economic justice is sufficient growth, equitably distributed, which brings everyone up to an adequate level. That rosy scenario is so comforting that it’s now the dominant model for how economic justice will happen. Sadly, it’s doomed. That’s not because growth could never be sufficiently vast. It could be and has been at several points in recent history when technological advances led to huge wealth creation. But spontaneous equitable distribution of that wealth has never happened. If enough people spontaneously limited themselves to ensure justice for others, there wouldn’t be a problem to begin with. There’s a problem because people do want justice, but for themselves, not as limits on their own activities for the sake of others. Economic growth doesn’t change that.

The truth of the matter is that a right to live will inevitably be costly to some people in the short term. Wealth is currently distributed without regard to economic justice, so the people whose money comes at the expense of the lives of others would not get that money under a just system. Again, if nobody made money unjustly, there wouldn’t be a problem to begin with. Given that there is a problem,there is no way to make it cost-free to everyone.

In some ways, it’s ironic that there should be resistance to implementing economic rights because there’s really nothing objectionable about them. Economic justice, which strives to balance all rights equally, would respect property rights and wealth accumulation that didn’t deprive others of a living. Most people, honest people, are disturbed at the mere thought of making money at the expense of others’ lives. In a just system, they could make money without that disturbance, nor would anyone fear grinding poverty. It’s a win-win situation.

And yet, the harder it is to make a living, the less anyone cares how it’s made. The less economic justice, the greater the fear of poverty and the more a right to live sounds like a right to impoverish others. It’s a downward spiral just as the previous situation is an upward one. Taking advantage of others is a very difficult pattern to stop unless there are rules in place preventing everyone equally from doing it. The truth of that is evident from the worst economic crimes, like slavery, right down to accepting minor bribes. Before the laws are in place, the haves fight them because of the spectre of poverty. After laws promoting economic justice are passed, lacking those laws becomes a mark of barbarism. For instance, turning a blind eye to slavery is now considered despicable everywhere. On the other hand, an effective social safety net is still inconceivable to many US citizens, while Europeans can’t understand how any society can be said to function without one.

The point of this digression on the costs of a right to live is that I want to be clear on the fact that there are inevitable short term costs for some people. It’s also inevitable that at the level of whole societies, judging by the weight of the evidence so far, everyone is better off in the medium term and even more so in the long term. Economic justice does not have to be the apocalyptic catastrophe that communism made of it, so long as rights are balanced rather than given rigid precedence. On the contrary, equitable economic rules lead to increased, not decreased, wealth. They’re also fundamental to a generally equitable and therefore sustainable society. In the chapter on Money and Work [21], I’ll give some examples of how a right to live might be applied in ways that balance available resources, property rights, employers’ rights, the right to an equitable share of created wealth, and the right not to die of poverty.

Of all the rights, the one to live suffers most from a breakdown of imagination, so I want to digress a bit on that, too. With the others, such as the right to privacy (unless you’re Google), there’s not a widespread sense that it’s silly to even try implementing them. But it’s inconceivable to many people that a universal right to live could exist outside a fairy tale. “Inconceivable” isn’t just a figure of speech in this case. It is, literally, inconceivable. For instance, no matter how many times accountants do the math and show that everyone in the US would benefit if we had universal health care, many US citizens simply cannot take on board the fact that they’re losing by not spending money on medical care for others. No doubt, if you had never seen the color red, having physicists tell you its wavelength wouldn’t help. But once you had seen it, anybody who told you it couldn’t exist would seem to lack vision.

Slavery provides one example of that change in vision. At one time, some people in the US thought slavery was essential to the economy. Now, nobody can see how anyone could have thought slavery brought any benefits. The fact that the slaveholders made some money is seen as an infinitesimally small quantity compared to the astronomical social costs. It’s become inconceivable that anyone could have missed that.

The concept that increased justice leads to increased benefits for everyone — not just nebulous moral benefits but plain old quality of day-to-day life benefits — is something that’s much easier to see when it’s been experienced. So easy, in fact, that for people in that position it must seem too obvious to need as much repetition as I’m giving it.

Although the right to live suffers the most from seeming impossible to implement, all missing rights seem fanciful. After they’ve been articulated, but before they’re applied, the usual excuse is that they’re impractical. The examples are legion. Government of the people couldn’t possibly work because the people are simpletons. Free speech will lead to a breakdown of order. Universal health care will bankrupt the country. Respect for privacy will make it impossible to do business. And so on. Yet, oddly enough, whenever the fight to gain respect for rights is successful, the opposite happens. Democracies work rather well; countries with free speech have more order, not less; and industrialized countries with universal health care have lower medical costs than the USA, which is the only one doing without. None of the missing rights would be impractical to apply. What feels impractical is that they involve limiting the power of those currently benefiting from their abuse. That’s different. It’s difficult, not impractical.

Rights in Conflict


Most of this piece on conflicting rights has been devoted to errors in the framework which cause conflicts even when none is necessary, such as missing or badly defined rights that blur the necessary boundaries among people. But even when all those errors are solved, rights can and will conflict precisely because there is no single right answer to their order of precedence.

However, although there cannot be a rigid priority among rights, there is a clear goal. The viability of all rights should be preserved. The best outcome preserves the most rights and the most freedom for the most people. In consequence, conflicts between rights need to be resolved in favor of the ones whose loss in that situation would otherwise cause the most damage.

As an example of how this might play out consider a recent conflict [22]. Muslim workers at a slaughterhouse needed to pray five times a day. Other workers were reluctant to fill in to the extent required. Filling in is a non-trivial task in that environment. The butchering process moves at blinding speed, so workers who step away briefly create a real burden for those who have to make up the difference. The risk of serious injury is increased and, if there’s any faltering, the whole line can be halted, carcasses pile up, there’s an incredible mess, workers get in trouble, and there may be consumer health issues or financial losses if some of the product winds up being mishandled.

The conflict was between religious rights and workers’ rights. The Muslims shouldn’t have to scrimp on their beliefs just to keep their jobs. The non-Muslims shouldn’t have to work faster and increase risk of injury just so somebody else could have extra breaks. Oddly enough, a third alternative was not mentioned. The processing lines could be slowed down enough at the relevant times of day so that the missing workers didn’t cause a problem. In fact, it was a three-way conflict and the balance lies between all three factors, not just two. If the owner of the plant had been a struggling start-up operating on razor-thin margins, then any loss of profit could have meant closure of the plant. That would make both workers’ and religious rights moot and would be the wrong place to look for a solution. In this particular case, the owner was a Fortune 500 company for whom the very limited slowdown would have made some correspondingly limited impact on the bottom line. That property right needs to be balanced against equality among workers and the freedom to practice one’s religion. It’s not too hard to see which right would suffer the least damage in this case. Aiming for maximum equality among rights, the obvious alternative is to slow down the production line. It’s so obvious, that its absence from the discussion can only be one more example of the lengths to which people will go to avoid inconveniencing the powerful party.

Of course, the more evenly balanced the conflict, the harder it is to see a clear resolution. Consider, for instance, the issue of someone who objects to vaccination versus the public health need for most people to be vaccinated. On the one side is the bedrock right to control one’s own person, and on the other side is … the bedrock right not to be killed by a disease carrier. If an epidemic is actually in progress, the public health considerations take precedence because the threat is real and immediate. But if there is no immediate threat, and the level of vaccination in the population is sufficient that there is unlikely to be one, then the situation is different. Then the individual is being asked to give up a fundamental right without medical justification. On the other hand, if there is widespread sentiment against vaccination, consistency may be essential for the sake of fairness. (Information about the real pros and cons of vaccination would also be indicated in that case, but that’s a separate issue.) Assuming that it doesn’t start an anti-vaccination movement (which would damage public health) my preference would be to decide in favor of the less powerful party, in this case the individual rather than the public as a whole. But I could as easily see an argument in favor of maintaining consistent treatment of all citizens. The specific decision in a specific case would depend on the attitude of the community. That’s messy, but messiness is unavoidable when there is no clear path to a decision. It’s better to be clear on the real factors in a decision than to create false neatness by pretending some of them don’t exist.

Free speech vs. noise


Rights to free expression have another problem in addition to missing and conflicting rights. We’re (rightly) so determined to preserve the right that we’re (wrongly) trying to make it cover every sound, as it were, ever made. We’ve gone off the rails. The freedom part is all-important and the speech part is forgotten. The balance among different factors has been lost. It’s been forgotten what free speech is for: to ensure a hearing for all voices so that information or truths aren’t stifled. It’s to allow communication, not rubbish.

I know. That means somebody has to distinguish between the two and that’s what we’re trying so hard to avoid. So let me say up front who should not decide on what is covered by the free speech label. Governments are the worst arbiters. In the very epicenter of desperation about free speech, the USA, it took Trump mere seconds to label news he didn’t like [23] “fake.” Or for Turkey to block Wikipedia, Wikipedia [24], for threatening “national security.” Religions, or any belief-based systems including for instance belief in the sanctity of monarchies [25] (AFP, 2017), have a long, lethal, and continuing [26] (Rasmussen 2017) record of dreadful judgment about what people should be allowed to say. Corporations are appalling arbiters. Google and Facebook and Amazon and the whole boiling of them don’t give a flying snort in a high wind what kind of dreck pollutes their servers so long as it increases traffic [27] and therefore money to them. Experts are another subset who are never consistently useful. You have the Mac Donalds [28] who’d prefer to shut down speech they don’t like, although they dress it up in fancier words. You have the Volokhs and Greenwalds and Assanges who can afford to be free speech absolutists [29] because they’re not the ones being silenced. And finally, crowdsourcing doesn’t work either. That rapidly degenerates into popularity contests and witch hunts and is almost as far away as corporations from understanding the mere idea of truth. (The whole web is my reference for that one, unfortunately.)

Who should make the decisions about the iffy areas then? Laws, not people, in the same vein as now. Where there’s doubt about whether an expression is allowable or not, we should maintain the current system of allowing speech by default. The courts, i.e. a changing and somewhat random set of people, should, as they do now, follow the (improved) rules when lines need to be drawn.

Having said that, I have to quickly add that the courts in the USA tend toward free speech absolutism which, as I’ll discuss in a moment, is a fantasy position. The Supreme Court just confirmed that with a recent 8-0 decision facilitating hate speech [30]. The unanimity, by showing that not one of these great legal minds understands what they’re deciding, discredits them. And, after a considerable string of such decisions, it makes me impatient of the argument that there’s no point thinking about limits to speech because it’ll never get through the Court. Resigning yourself to the limited understanding of those in power is the practicality of the damned.

Now, although I don’t see a way to improve the process of making decisions about the gray area, I do think improvement is possible elsewhere. We’ve been looking in the wrong place for a solution. We don’t need to figure out who should arbitrate the problems. We need to reduce the problem areas. It’s possible to do a better job of that than we’re doing, and the rest of this section is an exploration of rules that could be useful to distinguish speech from noise.

Rule-based limits would not be censorship any more than current rule-based limits are. They derive not from the opinion of some authority but from principles whose explicit purpose is to protect communication. If they fail to do that, if they devolve into censorship, the advantage of a rule-based system is that courts are available to correct the error. What’s needed now are better rules, not different processes for applying them.

In the 1600s and 1700s when the concept of free expression was being developed and applied, the signal to noise ratio was very different from what it is now. Few people had the means to disseminate their ideas to begin with, so there weren’t many voices. Advertising barely existed. (People probably hawked things right back to when our knuckles still dragged on the ground, but the volume of advertising, its pervasiveness, and its ability to distract were orders of magnitude lower than they are now.) Nor was there the technology to din at people 24/7/365. So noise was not a large concern of the main early thinkers on the topic of freedom of speech. Their big concern was silencing.

Silencing was and remains something that must be prevented. The dreadful irony, though, is that a fixation on allowing all speech ends in the loss of the whole point of freedom of speech.

Drowning out voices kills their message at least as well as silencing. Insisting that everyone, everywhere, for any purpose, has an equal right to speak hasn’t preserved freedom of speech. It’s killing it. When everybody can shout as loud as they can about whatever they want, the biggest voices will dominate.

Nor is it possible to take comfort in the fact that the little voices are still there if needed, that no information or truth will be lost. As I’ve written elsewhere [31] (and interspersed throughout my free speech posts [32]), that’s an assumption of the “marketplace of ideas” model. It assumes we’ll study all the ideas out there, weigh the evidence in favor of each, and come to the logical conclusion about which ideas are best.

That model has so much wrong with it, it’s hard to know where to start.

Nobody can study all the ideas out there. Nobody has the time. Leave aside all objections about insufficient education, or intelligence, or poor presentation in the media, the simple limitation of time is enough to make nonsense of the assumption. Everything else could be perfect, and the time limits still mean it could never work.

Besides the limited number of things we can notice, the amount we can process is even more limited and that latter set will determine our actions. In terms of practical consequences any further information, even if it came from an omniscient god, might as well not exist. Freedom of speech is supposed to prevent precisely that loss of useful information, but when it’s drowned out, it’s gone.

Then there’s the psychological factor that people hate to be wrong. That means rethinking one’s opinion is much less likely to happen than forming an opinion to start with. Reserving judgment is difficult — both scholarship generally and science specifically are mainly years of training in how to reserve judgment — and it’s the last thing we humans are naturally good at.

So if there is a lot of appealing garbage in this marketplace of ideas we hear about, it’s not going to give way to the good ideas hiding in the back stalls. On the contrary, once people have heard something and thought it sounded plausible, they don’t want to re-examine [33] it (Munro 2010).

It gets worse. Repetition is well known to lead to a sense of familiarity, and from there to the sense that the brand is known and good, for some value of “good.” (Just a sample reference: Unconscious processing of Web advertising. Yoo 2008 [8].) There is accumulating evidence from those who study the cognitive effect of advertising that the feeling of comfort is independent of conscious thought or attention on the part of the target. Even when people try to be sure they don’t react favorably to advertised objects, they wind up choosing them more often (Yoo 2008). Tuning it out, far from making it powerless, gives it maximum effect.

The way our brains work, repetition is apparently assumed at some very basic neural level (Hoch and Meyers 1984) [34] to be indicative of something real, something on which we can base projections and expectations without having to go through the work of reprocessing all the inputs as if they were new every time. The need for rapid decision-making based on insufficient information is a fact of life, sometimes it’s a matter of life or death, so it’s hardly surprising that our brains would be primed to take all the shortcuts they can get. And repeated events in nature usually are indicative of real patterns. Repetition, whether in advertising, dogma, propaganda, opinions, news items, or catchy tunes, will lead to the same result in some large proportion of people. Science can’t say that any given individual will be susceptible, but it can say with high statistical certainty that groups of individuals will be affected.

The implications of the power of repetition for freedom of speech are huge. It means that the loudest voices drown out others not just because they’re loud. They also seem more persuasive [35] (Nyhan and Reifler 2010). And the human mind being what it is, once persuaded, won’t admit the possibility of manipulation. Who wants to admit that, even only to themselves? Instead, people generally defend their current point of view by any means available, always convinced that they thought the whole thing through carefully. There is no other way to maintain the sense of being in control of one’s own thoughts.

That’s not an exhaustive list of the problems with the “marketplace of ideas,” but just those are plenty to get us Chatbots in the White House [36] (Doyle 2016).

That is a nontrivial consequence. It’s already led to losses of basic rights for whole groups of people in the US: women, immigrants, Muslims, anyone wearing a turban, and nonwhites generally. The only reason white, non-turban-wearing males have so far been mostly unscathed is because of the Administration’s incompetence, not because of any lack of will.

So, freedom of speech interpreted as a free-for-all of shouting does the opposite of its intentions. It does not preserve diversity and the richness of public discourse. It does not preserve truth wherever it might appear. It drowns it. It reverts us back to dependence on the ideas of the few. One can argue about the wisdom of crowds, but there’s no doubt about the foolishness of elites. None of them has ever been right often enough to avert disaster. Not a single nation traces its roots to the Paleolithic. Judging by that record, reverting to dependence on an elite is guaranteed to end in somebody’s wrongheaded ideas taking over the public sphere, and leading to the usual consequence.

To preserve freedom of speech it is critical to do more than prevent silencing. The noise must be dialed back. The big question, of course, is how? That’s the prickly task we’ve tried to avoid by defining freedom of speech as a free-for-all. So let’s start with the easier issues and get into difficulties gradually.

It’s been clear for a long time that there is speech which has no right to expression. Free speech doesn’t confer a right to perjury, to wrong answers on exams, to yelling “fire” for a prank in crowded theaters, or to incitement to riot. The unacceptability of lying in order to extract money is the basis for truth in advertising laws. It is possible to apply limits to speech without losing freedom.

Somehow, those “old” distinctions are accepted, but any new ones will put us on a slippery slope headed straight down to censorship and thought control. It’s never explained why the familiar limits are good but unfamiliar new ones are necessarily bad. Whether they’re bad or not should depend on whether they hinder the free flow of ideas, not on how young they are.

As I’ve said many times, the existence of a slippery slope is not a good enough excuse to head over a cliff, no matter how clear cut it is. Right now, we’re heading into actual, real, true thought control by allowing too much noise. That is no better than thought control caused by too much silence. Either way, we lose a freedom essential to quality of life and sustainable government. We have no choice but to do a better job of distinguishing signal from noise. It’s not optional if we want to preserve freedom of speech.

Since the idea is to shrink the gray areas, the noisy bits that are hard to distinguish from communication, the approach needs to be tuned to the different categories of problematic speech. Lies to manipulate people for commercial, political, or social purposes are a somewhat different problem than abusive speech to incite, bully, or degrade others.

Both share an important common element. They are not using speech to communicate. They’re using expressions to manipulate and coerce people. They’re using words, but as weapons, not as discussion. They’re not trying to have any sort of conversation.

That manipulative or hostile motivation is what sets apart much of the noise from actual communication. It provides a rule that can help distinguish speech, which must be protected, from rubbish, which must be stopped.

That means we have to examine motives, and that’s one of the cans of worms we’ve been avoiding by turning free speech into a free for all. But there’s really no need to be so terrified that we sacrifice the whole concept of democracy. It’s actually a familiar can of worms. It’s the same problem we try to solve when distinguishing murder from manslaughter from accident. The results aren’t perfect, but they’re good enough to stop murder from becoming an accepted way to solve disputes. Examining motives and inferring motives is something the legal system does all the time. We need to display the same level of sense with weapons that use speech as we do with weapons that use steel.

Manipulative lies differ from more purely abusive expressions in some of the rules that can be used to see them for what they are. Motive is important in expressions that rely on falsehoods for their effect, but they can also be measured against reasonably objective standards of truth. Someone who is trying to communicate will be willing to correct obvious falsehoods. Someone who has other motives will not. Abusive expressions, though, are distinguished mainly by the desire to cause harm. (Slagging someone off as, say, a “frog” may not be untrue if the person actually is French, but it’s still hate speech because its intent is humiliation, not description.)

Falsehood is the slightly smaller can of worms so I’ll start with that. Identifying falsehood leads straight to the even thornier issue of deciding where truth begins. Current thinking is allergic to that for two good reasons. The received wisdom has proved very wrong on many occasions over the centuries, and some of the worst excesses by authorities have been committed in the name of doing the right thing. That’s led — rightly — to an absolute commitment to protect expression of religious and political beliefs.

But the combination of a healthy uncertainty about truth together with the commitment to protect all religious and political speech has resulted in a curious chimera. Now any statement defined by the speaker as a belief is automatically protected. The consequence is absurdity, which can be lethal. For instance, when some parents hear about somebody’s beliefs on the evils of vaccination, they decide to keep their children safe from it. Once vaccination levels are low enough, group immunity is lost, the disease itself comes back, and causes deaths in children [37] (Oxford University 2017).

So the task of distinguishing truth from lies, prickly as it might be, is not optional. Setting up authorities to make the distinctions is a method that’s always failed in the past. What can work is finding the rules that can tell them apart. So the core questions are whether truth can be distinguished from lies, and if so, in which cases.

The general question has been addressed by a considerable body of philosophy, including most recently deconstructionism. Various schools have made the case that the truth may be unknowable. Generalizing from that sense of inscrutability has led to the feeling that nobody can dictate what is the “right” way of thinking.

However, generalizing from abstractions to the fundamentally different class of things represented by tangible facts is lumping apples with pineapples. The knowability of truth has little direct relevance to the physical world in which we have to deal with stubborn facts. Those who have people to do their laundry for them can write screeds about whether the clothes really exist or are truly soiled and criticize the internal contradictions in each others’ texts. The rest of us just have to try to deal with dirty socks as best we can.

Thus, in the general case there may or may not be any philosophical truths, but in the specific case of fact-based issues the answer is different. Even if the truth (possibly with a capital “T”) is unknowable, fact-based issues can have statistically valid answers, and we have the lightbulbs, computers, and airplanes to prove it. That means counterfactual assertions exist. They are not just some other equally valid point of view. The yardstick of truth-in-speech can be applied to matters of fact, those things which can be measured and studied using the scientific method. Nobody is entitled to their own facts, and labeling them “beliefs” doesn’t make it so.

A couple of caveats follow, of course. Reasonably accurate discovery of the facts and their meaning may be non-obvious. That doesn’t mean it’s impossible. Nor is there anything wrong with thinking carefully about assumptions, methods, or conclusions. It’s essential. Re-examination of data in the light of new knowledge is equally essential. But revisiting the same issue without new data, after repeatedly reaching the same conclusion with a high confidence level is a waste of time. It’s noise.

So far, the murky part of the slippery slope no longer includes demonstrably counterfactual assertions. Whether it happens on the news, talk shows, printed matter, or any other disseminated medium (yes, including social media and blogs), repeating untruths is not protected as free speech. That means the end of manufactured controversy about many current topics, such as evolution, vaccination, climate change, or the monetary cost-benefit ratio [38] of illegal aliens to the rest of US society (Perryman Group 2008). Which would be quite a change. (I’ll discuss below how one might give such laws practical effect.)

On the other hand, as an example of a factual controversy that has not yet been decided, it’s still valid to worry about the effects of cell phone transmitters on nerve tissue. Studies of harm have come up negative (e.g. Kuzniar et al. 2017 [39]), but tend to have a short duration and may not capture long term effects. The results from large combined studies and longer term work are worrisome [40] (Morgan et al. 2015).

The point I’m trying to make with these examples is that the standard of what constitutes certainty should be high, and anything which a reasonable person could question based on the facts should continue to be protected under freedom of speech.

However, once the facts are established — it’s feasible to have a list of topics and statements which are false or true at a 90% or 95% confidence level — then presenting counterfactual points as plausible in any form, even as mere implications or dogwhistles [41], fails the truth-in-speech test. It’s become clear that spreading demonstrable falsehood generates what people already call a “noise machine.” The wisdom of the crowd is way ahead of the deep thinkers on that.

The other major class of expressions that should never have been confused with communication are the multitude of different forms of abuse. Again, the point of free speech rights is to facilitate communication, but the purpose of abusive speech is harm. It is a weapon (that happens to use words), not communication. Pretending it should be protected, like some of the absolutists do, is like protecting knife throwers if they say that’s how they “communicate.” Giving weaponized speech what amounts to a worldwide free fire zone is destroying democracies everywhere.

Since intent is crucial to abusive expressions in all their many forms, the law would have to discern motive, which is a complex problem but not an impossible one. The judgment required to shut down abuse is necessarily subjective. Objectivity is a logical impossibility in that case and pretending to it does nothing but obscure how the judgment is made. What works is to acknowledge the areas of subjectivity explicitly and to use open and effective methods that clearly show the whole decision-making process.

Motive leads to something, and in the case of abuse the goal is usually obvious: some kind of perceived gain in social or political status. That, too, is a point of difference with communication where the goal is sharing thoughts rather than using others to stand on.

There’s also what could be called second order hate speech where the motive of the actual purveyors is mainly to make money. The customers are the ones getting the direct emotional charge from being abusive. But that doesn’t change the nature of the expressions. Selling harm for money rather than spouting it for status has the same result. People are harmed. The fact that money is involved doesn’t make it better.

To get a sense of how large the problem of abusive speech has grown while we have been trying not to pay attention, it’s useful to list some current examples of it. There’s the familiar incitement to riot. Even though that’s already illegal, apparently so long as someone defines it as “politics” [42] it’s allowed to happen. Bullying and cyberbullying are starting to receive attention as real harm, not just some kind of speech. Limping rather far behind the field is recognition of the damage from the extraordinary amount of abuse women face for speaking on the internet [43] (Sierra 2014). There’s defining others as subhuman: “they’re not even people to me” [44] (instead of discussing why they are wrong); or calling them bugs. As the Dangerous Speech [45] project points out, that’s the only class of living things we humans feel glad to exterminate, and using that terminology is not simply some kind of figure of speech. We’ve seen plenty of recent political hate speech [46], such as the chants against Clinton to “Lock her up!” Locking people up in a rational context is what you do after they’ve been tried, found guilty, and sentenced. Threatening jail as a form of abuse is hate speech. We’ve also seen lies used both to manipulate and as a form of political hate speech (Cadwalladr 2017 [47], Morris 2016 [48]). And then there’s another huge sump people try to overlook. Pornography. Almost all of that, at this point, is not any kind of erotica, but is an exercise in degradation and torture [49] (Dines, 2011). Not only does the money involved not make it better, but using the trappings of sex doesn’t either.

Hate speech can shade into art and politics and religion. Irreducibly gray areas will remain and should have free speech protections, even after that zone has been reduced as much as possible by shutting down the abuse. The latter is the vast majority, well over 95%, of the toxic streams now polluting the public sphere, so just getting rid of that harm would liberate whole classes of people to participate more easily in public.

That is an important point about abusive speech: by the very fact that it classifies its targets as things to abuse, it silences them. It actually takes away the free speech rights of whole sets of people. That really needs to be a in bold capitals: it takes away the right to free speech [50]. By itself, without even going into its often horrible effects, hate speech is a form of harm. Shutting it down is essential to preserving the right to free speech.

It may be useful~~~ to give some examples of how I would apply the definitions of abusive speech to protect or disallow it, so I’ll spend time discussing that.

First, consider some odious political views bolstered by lies. This is on the border between suppressing viewpoints, which should not be done, and suppressing abuse, which should. Glenn Greenwald [51], who is generally a free speech absolutist, says the University of Ottawa should not have cancelled a talk by Ann Coulter. I would describe her as favoring a vicious branch of right wing ideology with not a few overtones of racism, sexism, and any other bigotry you care to mention. In short, just the kind of person any right-thinking citizen would want to censor.

In his view the University was wrong in placing any limits on her speech, no matter how repulsive it was. He supports that view because “as long as the State is absolutely barred from criminalizing political views, then any change remains possible because citizens are free to communicate with and persuade one another and express their political opinions without being threatened by the Government with criminal sanctions ….”

In my view, he misses important points. Yes, political views cannot be suppressed. But simply allowing everyone to talk does not guarantee the viability of small voices. Pretending otherwise is the absolutist way of ignoring all the actual evidence. Next, whether in support of good or revolting opinions, allowing people to repeat falsehoods is toxic to the public good. Again, ignoring that is ignoring all the evidence on how people process information. There’s a difference between government restricting speech it dislikes, which is bad, and restricting speech that is false, which is essential.

So the real question is whether she has an actual political or philosophical message or whether it’s simple hate speech once you remove the myths. Looking at her Wikipedia page (which is as close as I want to get to her views) it’s hard to discern any consistent position except “whatever is popular in right wing media today.” For instance, she went from pro-war to anti-war in Afghanistan when Obama became President. Being shocking enough to get clicks is also good. She considers literacy tests for voters and no voting rights for women good ideas because more Republicans would be elected. She doesn’t explain why that’s a desirable outcome. She doesn’t explain why classes of people should be excluded from democracy, except that it leads to the outcome she wants. That is circular and isn’t an actual message. If a deeper examination revealed some ideas in her views, yes, she should be able to speak about that (without any lies in the mix). If, as it seems on the surface, there’s nothing there except “Punch the punks on the other team” then that’s hate speech and shouldn’t be allowed in public. The snowflakes, as Baer (2017) said, are right.

A nontrivial related issue is that it’s hard to even think of examples of hate speech that don’t involve lies to some extent. If, for instance, Coulter wanted to talk about how much she dislikes blacks (note: not evidence-free statements about how bad they are, but purely her dislike) that’s her opinion and, although it may not be doing her cardiovascular health any good, she’s entitled to it. As soon as she says she has nothing against blacks, it’s just that they’re good-for-nothing freeloaders who are draining the system of resources put there by hardworking people, then she has to be able to prove it or she’s indeed liable for spreading falsehood. Those are facts. One can count up the money and see whether they’re true.

(And, indeed, people have tallied those particular facts. Race is not associated with being on welfare. Poverty is associated with being on welfare. For instance, 2004 numbers [52] (pdf), over 30% of blacks are poor, and over 30% of welfare recipients are black. Over 10% of non-hispanic whites are poor, and comprise over 10% of welfare recipients. Whether blacks themselves or discrimination is at fault for the higher poverty rates is another factual point which is not the issue here. The point here is if they were better freeloaders, they’d have to be using welfare in higher proportion compared to their poverty rate.)

The requirement for evidence-based statements would shut down a lot of hate speech and abuse by itself, since there’s a lot of overlap between mythmaking and abuse. Just listening to someone say how much they hate people is not all that fascinating. Being right is an essential component, and false narratives lend abuse the necessary glow.

Similar to the Coulter sagas, there have been dust-ups recently with respect to Yiannopoulos. In his case, because he argued for underage teen sex, the court of public opinion has decided everything he says is indeed hate speech. It would have been more impressive if public opinion could have woken up before he spent years using hate speech to gain fame. Women were his primary targets in earlier days. His case is a clearer example than Coulter of using abuse as a shock tactic to gain status and money [53] (Doyle 2016). With a clearer understanding of useful limits in free speech rights, he never would have been allowed the platform in social media which gave him his start.

The left is also quite capable of making the mistake of punching the punks [54] on the other team. That link is about the widespread approval of a punch thrown at a card-carrying US Nazi. There was very little interest in determining how the “right” to punch disagreeable people did not extend to the Nazis.

Obviously, I know that what people are trying to achieve is the shutdown of hate speech. Obviously, I think that’s a valid goal. But you can’t reach the end of abuse by using abuse. The only actual solution is to go through the uncomfortable business of defining abusive expression more effectively and then filtering out that noise.

Shutting down hate speech and whether and how to do it is a very lively topic just now. I can’t keep up with all the very intelligent commentary coming out daily. Literally today, I was happy to read that some of the ideas discussed here agree with the views of a legal scholar. Nielsen [55] (2017) points out that many forms of expression are already deemed harmful and are limited, and she points out that hate speech isn’t just some sort of blather. It causes serious harm to whole classes of people. Allowing it doesn’t support free speech. It just says the silenced people don’t matter.

Religious hate speech is an even more difficult situation than the political variety. At the most basic level the argument comes down to whether an appeal to authority, in this case God, can be allowed to carve out an exception to the rules against abuse.

As I argued earlier, allowing such an exception makes nonsense of all rights, including ones to religious freedom. If my religion is to destroy your religion and yours is to stamp out mine, there is no way to coexist when religion has priority. All rights are lost as everybody is busy killing everybody. (The total victory of one side is no solution because if belief has priority, there’s nothing to stop the winners from going on to the next item that merits extermination. It won’t take long before they’re rounding up people for wearing white socks.)

So secular rules about equal rights take precedence over any belief-based attempts to justify unequal treatment.

One interesting hallmark of belief-based attempts to justify abuse is that they are oddly selective. Take Fred Phelps and his Westboro Baptist church’s insistence on persecuting gays. He bases that on some passages in the Old Testament. But there are many passages in the Old Testament. He’s not driving around the US stoning adulterers. He’s not sacrificing pigeons or goats or whatever as required in other passages. He probably pays compound interest on his loans without quibbling, despite the passages against usury. It’s only gays who must be eradicated. The motive is obviously to target people for destruction, which marks it as abuse, not religion.

Almost every religion promotes unequal treatment of women. (Possibly the Unitarians are an exception?) That is against the secular principle of equality and cannot be aired in public in an equitable society. What people say in private, self-selected, voluntary groups, so long as it causes no harm, is up to them. But no space or medium open to the public — which includes religious sites accessible to the public — can be used to suggest one group is inferior to another. That is a form of hate speech.

What does that mean for outward signs of religions that others might see as representing something horrible, such as crucifixes, for instance, or women wearing hijabs? The French with their strict interpretation of what it means to be a secular society have answered that question by saying there can be no outward signs. Religion must be a private matter in all ways. And they have a point. That’s the only consistent answer. However, absolute consistency is not always necessary. Minor things such as what people wear don’t matter when they’re not the leading edge of imposing private beliefs on the public sphere. They should be recognized for what they are so that they can be restricted back to private life if they show signs of growing too loud. If they function purely as clothing choices, the harm of dictating something so personal seems to outweigh the harm of some minor publicity for a religion.

It might seem as if religions won’t be allowed to say anything if they’re no longer allowed to denigrate women. Admittedly, for some, like the weird cult practiced by Daesh (or Isis, or whatever they call themselves now) there wouldn’t be much left. But for actual religions, there’s no reason to stop discussing God or the afterlife or how to build places of worship or any of the other beliefs that are actually religious. Abuse is in the intent, and there is no intent to harm anyone in the religions which can coexist with an equitable society.

As important as what does constitute abusive expression is what does not. Criticism based on evidence or logical argument is not hate speech. That shouldn’t need to be said, but at least on the internet, there seems to be confusion about that. Speech one doesn’t like is not necessarily abuse, especially when the odious part is criticism of one’s own abusiveness.

As mentioned under the right to silence, expressions which some people find offensive do not constitute abuse unless they are hard to avoid. Pussy Riot had no right to desecrate an Orthodox church [56]. They have every right to perform protest art in the Red Square [57]. Similarly, a poorly made film sensationalizing the shortcomings of Islam would have been nothing but a poorly made film covered by freedom of speech (barring errors of fact). However, its producers had it translated into Arabic to make sure Muslims noticed it [58] (Ebert 2012). That exposes the intent to hurt and marks it as hate speech.

Issues around transgender people and language are a recent development in the boundaries of hate speech. Simplified down to the bare bones, the train of thought is that transgender women (i.e. people who have transitioned from male to female) must be completely accepted as women by all women. Any women who for whatever reason do not participate in inclusion are causing so much pain to transgender women that they drive some of them to suicide or destructive behaviors. Therefore non-inclusion in language or groups of women is a hate crime. (There is no equivalent insistence that all men must always include trans men. Nor do men get the same level of invective for the actual violence some commit against trans women as do women for being uninclusive.)

One hallmark of overreach when it comes to rights, as I’ve mentioned earlier, is that equal application leads to absurdity. By the reasoning I just outlined, anybody can define themselves as a member of any group and then blame the group for any harm that ensues, whether self-inflicted or caused by completely different third parties.

For instance, union workers would never be able to hold a meeting without their bosses if the bosses insisted that they, too, are workers just like their subordinates. The power relations are important here. Groups with less social power, be they poor or black or women or disabled or workers, need psychological space away from those holding social power (or as people like to call it now, privilege). Social power is primarily psychological, and without that space, it’s very difficult to work toward equality. That’s where groups of “lower orders” differ from exclusive clubs of “higher orders” whose purpose is to consolidate power rather than equalize it. Again, equalizing power can apply to all, but consolidating it cannot and has to rely on privilege, not rights.

With that background, it’s not too hard to distinguish the rights and wrongs of hate speech in the transgender situation.

Transgender people have the same civil rights as all human beings. When their ability to live in safety, find work, or marry is abridged, that’s harm. But they have the same rights, not more rights. Women retain the same right to self-determination and assembly as other groups. Transgender women don’t, for instance, own the copyright on the term “woman.” This is becoming an actual problem, ridiculous [59] as it might sound [60] (Smith 2014). Women aren’t harming someone else when they call themselves what they are. On the contrary, they’re erased if they can’t even name themselves, and that really is harm. Feminists harm nobody if they explore woman’s condition without including trans women any more than trans women harm feminists if they (trans women) form groups to study their own situation without explicitly including feminist concerns.

What would violate transgender people’s rights, however, is if women insisted that trans people couldn’t define themselves. They can. They can form exclusive groups and they can be part of groups that want to include them. The only thing they can’t do is intrude in groups where they’re not welcome, just as nobody can take away their right to assemble in their own way.

Another subject which cannot be hate speech is truthful speech, no matter how unpopular it is. For the purposes of defining which speech is free, truth has been defined as that which can stand up to the rigors of scholarly and scientific methods. So saying truthful speech can never be hate speech means in practice that research conclusions follow the evidence. Medical research that finds physiological race- or sex- or age-based differences cannot be suppressed for being bigoted. Sociological research that looks at, say, the correlation between urban planning and crime, is not discriminatory. The intent of scholarly work is almost always, quite obviously, to communicate and not to humiliate someone.

Finding true differences is not bigotry. Treating people badly because of their differences is bigotry.

There’s at least one example of sociological research that really needs work but doesn’t get it because of fear of partisan labels. We need examination of the source of the staggeringly greater levels of violence [61] done by men as opposed to women (Kellerman and Mercy 1992, UNODC 2015). (The cited works are only about some types of violence and don’t include war.) There’s a huge social cost to it and understanding and neutralizing its sources would have great social benefits. But for that we have to be willing to follow the evidence without worrying about offending men.

I hope I’ve managed to give a flavor of what I mean by discerning intent to classify expressions as either hateful or not. One point that should be clear is the speaker’s own statements about their intent is not evidence. Protestations of innocence need to be taken into account, but simply insisting something is a joke or a belief or an opinion is not evidence of either truthfulness or good intentions. Whether or not expressions are lies or abuse depends on the available facts, discernible intent, and evident effect, not on the speaker insisting it’s all good.

Commercial speech is a large gray area that is very problematic even though it’s not currently looming large on the public’s radar. The purpose of commercial speech is to get people to buy something; it’s to extract money from them and not to communicate an insight. As such, it is fundamentally in the class of manipulative expressions that must be regulated, not free.

But, and this is what makes the gray area of commercial speech so large, when it’s honest it is trying to communicate information about a product. It doesn’t have to all be lies and manipulation. It can be useful. When it is useful, when it is conveying actual information, it should be covered under free speech rules. When it’s just trying to pull people’s strings, it should not.

I realize I’ve just said that most of the multibillion dollar advertising industry is illegitimate. It is. Manipulative advertising is discussed in more detail in the section on that topic [9] in the chapter on Money and Work. Not only is the high end of manipulative marketing illegitimate, but so is the low end: the spam, junk, and social media product placement. Anything that seeks not to inform about a product but to titillate with popularity or overwhelm with repetition is illegitimate.

That said, legitimate advertising is not simply a company-sponsored duplicate of Consumer Reports. It can highlight only one product, it can point out defects in the competition, it can boast about price or the good conditions for the company’s workers — so long as they are all true. It can, in short, provide information, even one-sided information so long as that doesn’t shade into deception. Whichever agency has the task of enforcing truth in nonmanipulative advertising will be much busier than its equivalent now.

News is obviously covered by free speech rules. Yet now we have places that provide stuff they call news which includes — for instance, today — an assertion about child slave labor colonies on Mars. NASA had to spend actual time saying that is bunk [62]. The mind simply reels. And it reels even more at the fact that there are people out there, not institutionalized, who eat up that utter piffle. So, yes, sadly, at this point news cannot be self-defined to justify spewing noise any more than beliefs or politics can. It is going to have to pass through the same fact-based filter as other speech. When egregious enough to be obvious noise, it has to be dialed down, as I’ll discuss below.

A general responsibility to check the facts would be a huge change, especially at the smallest scales of bloggers and social media where it would be hardest to enforce. But the idea is to start at the top with those sources that have the widest reach. If there’s an understanding that lies are a social toxin and social opprobrium attaches to being first and wrong, the concept can spread to ~~~smaller levels. Respect for truth can spread just as disrespect can.

The problem with news is rendered more acute by the economic incentives in the industry. Even when not as grossly idiotic as the Mars example, there’s a miasma of clickbait that’s making actual information, the whole point of news, a rare commodity. Nor is that the fault of journalists. If they were paid to report, they know how to do that, and some of them are extraordinary at it. But the industry is structured for profit which means it must be entertaining and that is not compatible with a mission to inform. Information is not always entertaining. The profit structure reduces the workers to chasing clickbait and the actual news is drowned out. That issue is so pervasive, it’s actually a bigger problem than outright lies. But it’s also not a free speech issue. The cause is the economic incentives, so I discuss it in more detail in the chapter on Money and Work.

There’s a remaining gray area in news which in many ways is the worst problem of all. (I discussed this in an earlier piece, Weaponized Free Speech [63], from which the following is taken. I’ve been discussing the pernicious effect of lies, but a bigger issue is what to do when free speech itself is the problem.

In a 2006 article [64] by George Packer, Kilcullen, a counterinsurgency expert, makes the point that “when insurgents ambush an American convoy in Iraq, ‘they’re not doing that because they want to reduce the number of Humvees we have in Iraq by one. They’re doing it because they want spectacular media footage of a burning Humvee.’ The US government has also used events to shape rather than inform thought. One needs only to count the incidence of terror alerts in the year leading up to and the year following the 2004 presidential elections for one example. Like mangled bodies around a burning Humvee, these things aren’t lies. The pictures aren’t doctored; the information leading to the alert may be genuine. And yet, their purpose is not to tell the truth.

There is something deeply sinister about using freedom of speech to cloud thinking instead of to clarify it. There’s a lethal virus in there, somewhere, when free speech is used to steer people’s feelings in ways that bypass their higher brain functions. And that’s especially true when those brain functions are bypassed to make it easier to kill people.

What’s the cure? Publicity is the point of weaponized speech, and yet there is no way to say, “You can report on these stories, but not those stories” without striking at the heart of free speech.

If censorship couldn’t work, it might seem that an alternative is to make the voice of reason louder until it overmatches violence, but I don’t see how. There is no symmetrical fix. There is no way for reason to deliver a message that has the same punch as dead bodies. If it tried, it would cease to be a voice of reason. Possibly, it could be a beginning if such violence-for-publicity was reported without pictures and in a just-the-facts manner of an academic article. That, however, would require a news industry whose primary purpose was information rather than profit.

I don’t see a fundamental solution so long as there are people willing to commit violent crimes or violent acts or wars, so long as there are people who broadcast them, and so long as there are people who want to hear that message. The “marketplace” of ideas only functions when nobody brings a machine gun into it.

Last, there’s entertainment. The goal of entertainment is communication and it falls well inside the zone of protected speech. But as in religion or politics, it cannot be allowed to serve as an excuse for hate speech. Once it shades into that, as determined by independent voices and not the entertainers themselves, then it becomes noise and ceases to be protected.

Entertainment also has a considerable zone of overlap with education in the broadest sense. That places some perhaps unexpected constraints on it to be truthful, although in a somewhat different sense than sticking to the facts, all the facts, and nothing but the facts. I discuss that in the chapter on Education under the topic of diffuse learning [10]. As an example, calls to emergency services follow a specific protocol. If that’s presented in stories the way it should actually be done in life, it can save critical time in a crisis. But that kind of truth is part of education rather than a free speech issue.

The main point to keep in mind is that the goal is to dial down the noise so that real communication has a chance to be heard. There are large gray areas in commercial speech and entertainment, and smaller ones in religion and politics, which will continue to need attention and decisions about whether there’s a signal buried~~~~ in what looks like noise to some people. The point is that the signal must be protected, which means it must not be silenced and that the noise of abuse, lies, and manipulation has to be reduced.

How to go about stopping pollution of free speech is another vexed question.

~~~I don’t see much wrong with the current process of shutting down unacceptable expressions. Complaints from any source — individuals, interested organizations — flag problems which are evaluated against a set of rules. Effective feedback loops are essential to sustainable government generally, and I discuss some potential methods in the section on Oversight [65] in the second Government chapter. For the most adversarial cases a formal process of substantiated objections and responses would be necessary, with time limits to prevent silencing by delay as well as safeguards against using the process for harassment. When resolution can’t be achieved by discussion, then, as they do now, the courts enforce the rules. Improvement is needed in the rules deciding where the pollution starts, less so in the process of cleaning it up.

A government agency does have a role to play. A centralized clearinghouse for all those widely distributed complaints is essential, as well as some sort of filter against frivolous or vindictive accusations. It would be the first line of enforcement: the place that sends out warnings about expressions that step over the line. It could even bring law suits, especially against powerful defendants whom ordinary individuals might be afraid to try to stop. In other words, it’s not unlike what the FTC does (or is supposed to do) now with respect to truth in advertising, but with clearer rules to remove more of the noise polluting free speech. What no government agency should do is decide on the rules themselves. That’s a matter of laws, and the agency is an enforcer, not an arbiter. As soon as governments take it upon themselves to decide what is good and what is not, it takes them minutes to start shutting down criticism. (Just one example out of several appearing daily at this point: China’s … internet crackdown, July 4, 2017 [66].)

~~~The final arbiters have to be the courts applying the agreed-upon rules, as they are now. But it should also be possible to have a nimbler, cheaper system at the front end, so that most cases wouldn’t have to end in court. A system that takes some inspiration from peer review might be useful: a rotating subset of a pool of people, knowledgeable on a topic when it’s abstruse, unaware of whose work they’re reviewing and unaware of each other’s reviews, mark it as noise or not. With some high level of agreement (two thirds? three fourths?) the work is flagged or passed. If the subject requires technical knowledge, the reviewer pool could be limited to people who have it. If the topic is controversial or particularly important, the pool could be expanded, or there could be rounds of appeal to second or third pools. I envision it as a sort of jury duty, although it might work better if it was possible to opt out for people who had no interest.

After the vetting process has said an expression should not be allowed, there have to be an escalating series of steps to shut it down. The favorites here are polite requests for people to be nicer to each other and for educational measures to facilitate the process. Even among the people who understand that free speech has fallen on hard times (for instance, an Ars Technica article [67] and the scholars of the Dangerous Speech [68] project), the solutions proposed are educating people to be politer or less gullible. Some people can certainly learn the level of self-restraint necessary not to jump to conclusions, but those people aren’t the problem. The problem, as with all crimes, is a very small minority who don’t care what damage they cause. Polite exhortations to be a better human being is not all we do when someone commits robbery. Crimes using words can be more damaging than robbery and the people who commit them are at least as irresponsible.

So, although education and community standards are important first steps, and should be a notable and permanent feature of education at all levels and modes, they can never be enough by themselves to stop what is a criminal activity at heart. Enforcement measures and real penalties are necessary.

The Dangerous Speech project makes the point that prosecution can be counterproductive. They cite the example of Geert Wilders in the Netherlands who was tried (and eventually convicted) for incitement and hate speech, but whose following actually grew for a while because of the publicity prosecution gave him.

It makes sense that amplifying noise will make the noise worse. It’s simply another area where the law needs to catch up. If the message is the problem, there have to be rules against repeating it. The case can be reported as it would be in a law journal, so it is neither silenced nor attractive, both at once. (Yes, that would make it difficult to use as clickbait, and for-profit news wouldn’t like it.)

As for the appropriate penalties, there again, the desired outcome is shutting down the noise so the penalty must serve that purpose. Jail time for the perpetrators might be something to hold in reserve for the most recalcitrant offenders, but is marginally relevant to the offense.

Penalties should start at the top, for those sites and publishers with the widest reach or with those who threaten physical violence, and work on down as the situation gets under control. Little bloggers nobody reads and social media users with few followers aren’t exempt. They’re publishers too, strictly speaking, but the aim is to dial down the noise and they can’t make a lot of it.

Counterspeech, i.e. simultaneous presentation of truth, can be useful in neutralizing some problematic expressions. It had perhaps its clearest recent application in Stephen Colbert’s eponymous Report when he’d be pompously going through talking points while the split screen showed the truth of the topic. Of course, he was doing both sides of the screen for maximum laughs, but that approach would work on any kind of bloviation. In the context of broadcasting or publishing, somebody who was caught deviating from truthful, non-hateful speech enough times for it to be a pattern of practice could be sentenced to having their publications reviewed before going live and requiring the opposing view point alongside once aired. (Identifying the opposing viewpoint can be another issue of course. The opposite of white supremacists is not black supremacists and the opposite of creationists is not militant atheists [69].) It’s the same general idea as the old Fairness Doctrine [70], which worked somewhat to keep complete nonsense in check. Something like it needs to be updated and instituted now.

Another initial penalty could be actual silencing. After being caught one too many times, a perpetrator is taken offline or off the air for a day, a week, a year, forever. The time would depend on the severity of the offense and the recidivisim.

Then, last, in addition to the previous, there would be escalating fines, plus eventually community service, plus, finally jail time. Germany, for instance, now has a law to apply fines [71] against corporations who take the attitude that all clickbait is good clickbait. I don’t fault them for ignoring what I’ve suggested should be earlier steps because I know that there are considerable technical and (currently) legal difficulties in the way. However, that doesn’t change the fact that I think temporary and increasing bans would be more effective than fines. Technical problems, furthermore, can be solved at the human or the technical end well enough to shrink them to a manageable size. Interestingly, there’s now a temporary silencing “time-out” tool Twitter has started applying [72] as it dawns on the executives that encouraging “engagement” has facilitated the election of a Chatbot.

There are several main points to keep in mind on the subject of limiting freedom of speech.

Freedom of speech understood in a way that improves the signal to noise ratio would make it easier to have that informed citizenry on which sustainable societies depend.



What are the conclusions from this discussion of rights? One is that rights, to be rights at all and not privileges, must apply to everyone equally. Two is that the rights themselves are not equal. To preserve the maximum equality among people, it’s essential to take the inequality among rights into account when they conflict. It’s also essential to recognize that they will sometimes conflict, even in a theoretically perfect system, because their relative importance can vary in different circumstances and because people place different priorities on them.

The conflicts among rights need to be resolved in ways that are explicitly directed toward preserving the maximum equality among people. That requires two important balancing acts. One is explicit recognition of which rights depend on others. The current implicit assumption that rights are equal serves only those people who are more equal than others. If there is explicit recognition of inequality, then primary rights, such as freedom of movement or speech, can be given the necessary precedence over dependent ones, such as freedom of religion. Two is that conflicts need to be resolved in ways that do the least overall damage to any of the rights. All of them need to be viable, because they’re all essential to some degree. Allowing any right to become meaningless, which is what happens when one is automatically demoted, opens the door to the erosion of all rights.

I want to stress that when I say “necessary precedence” for some rights that does not mean exclusive or automatic precedence. It means that we have to be very careful about preserving the linchpin rights, but it does not mean that they always “win.” The essential point is the balance, and that the different kinds of balance all have to happen at the same time. It’s rather like surfing, in which balancing for forward motion and for not falling down both have to be done at once. On a different level, it’s the same problem we solve in order to walk. Both require practice, but they’re not impossible.

The point is that the balance in any given case depends on the situation so it has to be decided on its merits. The goal is the same: not to fall in the physical world, and to preserve maximum equality in the social world. The balance that achieves the goal is always different. I’m not trying to say that it would be easy, but I am saying it’s possible. It’s also necessary. Pretending that a simple, rigid system can handle the complex and fluid dilemmas of people’s rights may be decisive, but it achieves the wrong goal. The Queen in Alice Through the Looking Glass was wonderfully decisive about demanding people’s heads, but it didn’t do much for running the country. In Alice’s Wonderland that didn’t matter. In the real world, we wind up having to deal with the inevitable and nasty consequences.