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.
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 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 and in Education.) 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, 2). 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, 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 of mine, or the chapter on Creativity, which reflects an idea gaining currency in many places, (e.g. 1, 2, 3). 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”) 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. 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, 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. 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
We have gone off the rails as regards freedom of speech. The freedom part is all-important and the speech part is forgotten. It’s important to remember what freedom of speech is for: to ensure a hearing for all voices so that information or truths aren’t stifled.
In the 1600s and 1700s when the concept 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. (Evidence of people hawking things probably goes right back to the cave dwellers, 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 as the definition of freedom facilitates 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. That’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. That only holds in theory. In practice — and we live in practice, not theory — there are a number of considerations that mean the drowned voices are gone.
Time and attention are finite. There are a limited number of items we can notice, and of those an even more limited number we can fully process. That limited amount of information will inform action. 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.
It gets much worse, however. 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 the word “good.” (Just a sample reference: Unconscious processing of Web advertising. 2008) 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. 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 (pdf) 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. 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 (pdf). And the human mind being what it is, once persuaded, won’t admit the possibility of manipulation. Who wants to admit to that? Even 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.
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, too. Of course, that requires making distinctions between signal and noise which is the prickly task we could avoid by defining freedom of speech as a free-for-all.
Making any distinctions is supposed to put us on a slippery slope headed straight down to censorship and thought control. 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 thought control by allowing too much noise. That is no better than thought control caused by too little. 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 freedom of speech.
The slipperiness derives from the difficulty of distinguishing what is noise in all cases. The simple solution in the murky middle zone is to always err on the side of allowing speech rather than suppressing it. The harder part is to make that zone as narrow as possible.
Let’s start with the easy cases. 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 nothing 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. None of these limits has led to thought control. It is possible to apply limits on speech without losing freedom.
The task now is to update those limits to account for new technology. Flimflam used to be hard to repeat often enough to create plausibility on that basis alone. Now it can be, which means identifying untruth becomes an urgent task.
Identifying falsehood leads straight to the even thornier issue of deciding where truth begins. There’s an allergy to that in current thinking 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. Sometimes the two groups include the same children.
Suppressing noise without falling into the error of suppressing thought requires objective methods of telling 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 the things at minimum cost and maximum benefit.
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 supporting data, after repeatedly reaching the same conclusion with a high confidence level, such as 95%, is a waste of time. It’s noise.
So far, the murky part of the slippery slope no longer includes demonstrably counterfactual assertions. Whether they happen on the news, talk shows, printed matter, or any other disseminated medium, repeating untruths is not protected as free speech. That means the end of (legal) manufactured controversy about many current topics, such as evolution, vaccination, or the monetary cost-benefit ratio (pdf) of illegal aliens to the rest of US society. Which would be quite a change. (I’ll discuss in a moment 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 would still be possible to worry about the effects of cell phone transmitters on nerve tissue. Studies of harm have come up negative, but they haven’t had sufficient duration across enough studies for the required level of statistical certainty. (As if to make the point, a study came up a few months after that was written: Trees are affected by electromagnetic radiation. Original, in Dutch.)
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 have protected status.
Another murky area of the slippery slope are bad beliefs and opinions. (Good ones everybody wants to hear, so they aren’t generally targets for suppression.) There is not, in any system of thought I’m aware of, an objective way to deal with subjective matters. It’s a logical impossibility. The most one can say is that some beliefs can have very harmful practical effects, but the laws are already in place to prevent or punish those effects. They can be objectively evaluated. The beliefs themselves cannot be.
Therefore everybody is entitled to their own opinions. Limitations on beliefs or opinions really can lead straight into censorship. That includes wildly unpopular opinions such as justifications for terrorism.
To illustrate my interpretation of these distinctions, I’ll take an example from Glenn Greenwald, a stalwart proponent of the freest speech, discussing the University of Ottawa’s censorship of 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 … .”
I’ve agreed above that political views can’t be suppressed, and I’ve already disagreed that merely allowing everyone to talk guarantees the viability of even minor voices. But I think he misses another vital point in the mix. Whether in support of good or revolting opinions, allowing anyone to propagate lies does not serve the public good. There’s a difference between government restricting speech it dislikes — which is very bad — and restricting speech that is objectively untrue — which is essential.
It seems to me that the Canadians and Europeans are attempting that distinction in their laws against hate speech. They’ve labeled it “hate speech,” but I’ve seen it applied against groups that spread lies to foment hatred, such as the Shoah-deniers in Germany. It was careless to label it according to the goal, suppressing hatred (which can’t be objectively identified and therefore can’t be legislated away), instead of the method, stopping lies, which sometimes can be objectively evaluated. It’s understandable that the Europeans would be particularly aware of the need to short-circuit hateful falsehoods. They’ve certainly suffered from seductive lies (seductive at the time) which caused enormous real harm. But it is important to give such laws their right name because that helps to delimit them objctively and thus makes them consistently enforceable.
In the specifc example of Coulter’s talk in Canada, the authorities based their objection on the hatefulness in question, which led to the charge of preferring one set of subjective attitudes over another. They could have more validly told her she would be expected to stick strictly to the facts. For instance, according to the rules suggested here, nobody could stop Coulter from giving a speech about, for instance, how much she disliked blacks. 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, and race is not associated with being on welfare. Poverty is associated with being on welfare. For instance, 2004 numbers (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 point to the example of Greenwald’s objections to Coulter’s talk is to show the distinction I’m trying to draw between suppressing untruths and allowing the free expression of opinions. I’d like to give a feel for how it would change the discourse if free speech did not mean a free-for-all, if truth-in-speech laws applied to everyone, not just advertisers. 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 idea is that presenting counterfactual points as plausible in any form, even as mere implications or dogwhistles fails the truth-in-speech test. Which brings me to the hard part: how can the prohibition be put into practice?
I’m a believer in first figuring out where to go, then seeing how to go there. So, even though I’m not at all sure how to implement these ideas, that doesn’t change the point that they do need implementing. What follows are suggestions. There are bound to be better ways to do it, but I feel I should moor the ideas in some kind of action since I’ve been discussing them.
People opposed to a given viewpoint will be the quickest to find errors of fact in it. They’ll also generally be the quickest to try to suppress the viewpoint itself. Those two opposing forces must be balanced, but the opposition can serve a useful function by identifying errors clearly, logically, and with substantiation. Substantiated objections would require a response within a specific time, such as a week. If neither party then agreed to modify their stance, the process would ratchet up. It would be submitted for comment to the community of those trained in the relevant field. (I describe the feedback process as an integral part of government generally in the section on Oversight in the second Government chapter.) If an overwhelming majority, such as 90% or more, of the experts agree with one side, then the other side would be expected to withdraw its statements. The losing side could appeal through the legal system (in a process decribed here) to confirm or deny the earlier consensus. To reduce frivolous attempts to use the process to suppress opposing views, people or groups who charge errors of fact, but turn out to be in error themselves more than, say, three times in row would be barred from raising fact-based objections for some length of time, such as five or ten years.
The rules about truth-in-speech would apply to anyone disseminating a message widely: people speaking to audiences in person or through some medium, whether physical or not. It would not apply to interactions among individuals, whether at the dinner table or digital. Messages going out to groups, on the other hand, are going to an audience. So, yes, it would include bloggers. It would include social networking, since messages are generally visible to a number of people at once. The heaviest responsibility would fall on those with the largest audiences, and the enforcement should be strictest there as well. But everybody, down to the smallest disseminator of information would be held to the same standard. Being small does not confer a right to disregard facts. Everybody is subject to the same truth-in-speech laws, and it behooves everybody to make sure they’re not disseminating false rumors. The excuse of not having done one’s homework can only be valid a couple of times, otherwise viral lies by little people would become the new loophole for big ones.
I know that a general responsibility to check the facts would be a huge change, and I know it would be hard to enforce at the smallest scale. But I’m not sure how socially acceptable rumors with no basis in fact would be if that practice was labelled reprehensible, stupid, and illegal at the highest levels. Currently, the only value at those levels is being first with anything hot at any price. It’s not surprising to see it spread downward. If there’s an understanding that lies are a social toxin and social opprobrium attaches to being first and wrong, I think there may be less pressure toward rumormongering even at smaller levels. Respect for truth can spread just as disrespect can. Otherwise there’d be no cultural differences in that regard, and there are.
The effect on news outlets, as currently understood, would be severe. It would not be enough to attribute a statement to someone else to avoid responsibility. It still comes under the heading of disseminating untruth. The fact-checking departments of news organizations would become sizable. Being first would share importance with being fact-based.
The sanctions against those who persist in lying could be multilayered. After some number of violations, say five, that fall into a pattern of practice showing a carelessness about facts, a news outlet could be required to show, simultaneously with their assertions, what their opposition has shown really are the facts in the matter. If the problem persists, they could lose status as a news organization and be required to show a label of “for entertainment only” at all times. If they cannot meet even that standard, they could be shut down.
I realize I just said that entertainment is included in truth-in-speech standards. It’s very different, applied to that industry, but it still applies. Stories are the most effective way to spread messages, more effective than news, and sometimes even more effective than people’s own actual experience. It is no more acceptable to spread dangerous falsehoods that way than any other way. However, the distinctions have to be drawn in rather different ways.
Stories become very boring if they can’t embellish. As both a scientist and a science fiction writer (who sometimes even gets paid for the occasional story) I’m very aware of that. So I’m also aware that there are important differences between counterfactual elements completely outside of both experience and possibility, such as faster than light travel, those which are outside of experience but seem possible, such as a bus jumping a sudden chasm in a road, and those which are part of people’s experience and contradict it, such as jumping from the top of a six story building, landing on one’s feet and sprinting away.
The last category is not a big problem, because people generally know from their own lives what the facts of the matter are. The first category is not a big problem because it has no practical application. It’s the middle category which can cause real difficulties. In that case it is not simple to tell fact apart from fiction. The common assumption that people know to suspend all belief in anything labeled fiction is obvious nonsense. Nobody would have any interest in fiction if they were sure it had no application to their lives whatsoever. People pay attention to stories, in the broadest sense, because they give them frameworks to integrate their own experiences. For the most part, that’s on the level of intangibles and is not a concern here, but the same attitude applies to the whole of the story. If the story implies that a car going very fast can escape the shock wave of an explosion, most people have no personal experience telling them to doubt that. In the case of the jumping bus mentioned earlier, who knows to what extent movies showing similar stunts contribute to drivers trying to jump potholes and crashing their cars? The stories certainly don’t help.
The thing that is so frustrating about those lapses in storytelling is that they are completely unnecessary. They are based on nothing more than laziness. One can write the story and include the real physics, biology or chemistry where it matters without changing the degree of suspense or interest by one jot. All that’s needed is a bit of research into the facts. In the bus story, the first part of the road just needed to be higher than the second. Then the front of the bus could start falling, the way it would at real world speeds, and (given a good stunt driver) the chasm could have still been almost as wide as the bus’ wheelbase. The larger the media company, the less excuse they have. A thousand biologists would have been glad to volunteer the information to Paramount that the sentence “Oh my God! The DNA! It’s degrading into amino acids!” needed a minor change: “Oh my God! The DNA! It’s degrading into nucleic acids!” That error never killed anyone, but it adds to the confusion around science for nothing.
From a writer’s perspective, it’s ironic that taking care about facts is part of awareness and respect for the power of storytelling. Pretending it doesn’t matter is saying that nobody listens to that stuff. The social good, however, is that stories are an important and effortless way for people to learn. Entertainment can assist in that vital social function in ways that don’t interfere with it’s primary mission at all.
Consider another example. Medical emergencies in entertainment generally leave the audience with the impression that the way to get help is to push a few buttons on a phone and shout, “Ambulance! Now!” (Yes, yes, I know. I embellish a bit for the sake of my story … .) That’s also the natural thing to do when desperate, so there’s nothing in an inexperienced audience’s mind to suggest otherwise. The result is that in real life valuable time is wasted while dispatchers get the information they need. That really can kill people. Following the real protocol would necessarily change the pace of the story at that point, but it’s a truly vital part of social education, and it doesn’t actually need to change the tension. It’s the type of fact-based truth that needs to be required so that storytellers without enough respect for their craft don’t spread toxic misinformation.
Being unreal is an important part of entertainment, and the distinction to dangerous and useless untruth is hard to draw. The truth about the facts of war, for instance, would make all but the grimmest war stories impossible. The truth about the actual practice of science would make “War and Peace” seem like a fast-paced action flick. The truth about politics would be unwatchable. As before, where there’s doubt, let people speak out.
A very difficult case is unreality that shades into such a one-sided presentation it amounts to a propaganda piece for very destructive attitudes. What should one do, for instance, about D. W. Griffith’s classic, “Birth of a Nation?” I really don’t know. So if I were deciding, I would have to allow it. Another example is entertainment whose whole point seems to be violence. One such game or movie is just stupid. A whole decades-long drumbeat of them is going to shape attitudes. But at what point does one draw the line? Possibly a requirement to depict the action and physical effects in accord with real physics and biology would be enough to reduce the propaganda value.
The sanctions for dangerous lies in entertainment need to be different than in, for instance, news. Probably the most damning thing of all would be a requirement to intercut a clip showing what was very wrong about a scene. The story would come to a screeching halt, the audience would be exposed to the issue, and there’s probably every chance they’d flip to something else entirely, which is the worst thing you can do to a storyteller. The people behind the entertainment causing the problem would be required to fund the production of the clip made for those who successfully objected to its stupidity. That would mean a pre-release would have to be available to those who wanted to examine it for errors.
There’s a remaining gray area I wouldn’t know how to handle at all, and yet which is in many ways the worst problem of all. (I discussed this in an earlier piece, Weaponized Free Speech, from which the following is taken.) I’ve been discussing the pernicious effect of lies, but the bigger issue is not lies. The bigger issue is what to do when free speech itself is the problem.
In a 2006 article 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.
I don’t see a 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.
There are several main points to keep in mind on the subject of limiting freedom of speech. It relies just as much on the presence of silence as it does on avoiding silencing. When distinguishing signal from noise, in order to know what to silence, any distinctions that can’t be made objectively must default to favoring the freedom to speak. There are, however, many more distinctions that can be made than we make now, primarily those which relate to matters of fact. Implementing factual-truth-in-speech practices does not lead to censorship any more than does the prohibition against yelling “Fire!” as a prank in crowded theaters. Freedom of speech understood in a way that improves the signal to noise ratio would make it easier to develop 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.