inflammatory speech, illustration by Robert Neubecker

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This is a follow-up from two previous posts on the same subject (here and here).

In Brandenburg v. Ohio, the Supreme Court held that abstract advocacy of lawlessness and violence is protected speech under the First Amendment. Even in a society based on laws, people should be free to express disagreement with the law and call on others to break the law (inflammatory speech).

I think that’s generally acceptable and fair. If someone believes that smoking dope shouldn’t be a crime, and carefully describes to his or her readers how to cultivate and use the drug, then he or she should be permitted to do so. The crime is drug use, not the description of or incitement to use drugs. The same is true for a more extreme example, such as the infamous book called “The Hit Man Manual” (see the Rice v. Paladin Enterprises case).

However, it is equally acceptable, also according to Brandenburg v. Ohio, that speech which incites imminent, illegal conduct may itself be made illegal:

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio

If speech intends to produce illegal actions, and if, as a result of this speech, the illegal actions are imminent and likely, then there is a reason to limit freedom of speech. In the words of Justice Black (who was, by the way, something of a first amendment absolutist):

It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now.

When speech acts contribute substantively to criminal acts, the speech acts are considered to be “aiding and abetting”.  The fact that ”aiding and abetting” of an illegal act may be carried out through speech is no bar to its illegality. (source)

The justifications for free speech that apply to speakers do not reach communications that are simply means to get a crime successfully committed. K. Greenawalt in “Speech, Crime, and the Uses of Language”

Aiding and abetting a crime can be criminal in itself, even if it takes the form of the spoken or written word, The First Amendment doesn’t provide immunity from prosecution because someone uses speech or the printed word in encouraging and counseling others in the commission of a crime.

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However, this doesn’t mean that all inflammatory speech or every publication and distribution of instructions on how to act illegally, can be suppressed and made illegal. The “Brandenbrug test” has to be successful first, which means that there has to be more than mere intent. There has to be incitement of an imminent lawless act, as well as the likelihood that this incitement produces or helps to produce such an act.

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See also this post on Hannah Arendt’s distinction between violence/force and power, and how this is relevant to the current situation in Iran.

Proponents of the death penalty usually show the following famous graph in order to “prove” that capital punishment results in fewer homicides in the U.S., and is therefore a successful deterrent:

First of all, there’s something wrong with this graph. It’s intentionally tweaked so as to highlight the recent rise in the number of executions, and to do so in a way that shows how closely correlated it is with the recent drop in the number of homicides. Compare it to this version:

homicides and executions in the U.S.

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The important difference is that the second graph counts the number of executions per homicide, and not just the total number of executions. From the point of view of deterrence, this is obviously the better measure.

We can see from the second graph that the recent upswing in the number of executions is really quite small, compared to earlier periods (there was moratorium on executions in the U.S. in the early 1970s). Unless deterrence has somehow become much more effective than it was in the early parts of the 20th century – which is doubtful given the relatively low numbers and humane methods – it’s doubtful that such a relatively small increase in the number of executions during the last decades is the cause of the extraordinary decrease in the number of homicides during the same period. We have here a clear example of correlation being not equal to causation. And when we look at the whole time series, there isn’t even a clear correlation. It’s cherry picking: take that part of the time series that confirms your prejudice, and forget the rest. A common manipulation technique in statistics.

It’s not only cherry picking in terms of the period being considered, but also in terms of sidelining other possible explanatory factors. The same guys who gave us the second graph show how this works by comparing U.S. data with Canadian data, and by comparing the data for different states in the U.S.

Canada and the U.S have had and continue to have radically different capital punishment policies. Canada abolished the death penalty in the 1960s. According to those who believe in deterrence, Canada should have a completely different evolution of the number of homicides; in fact a steeper increase than the U.S. when the U.S. has an increase, or a less pronounced decrease when they both show a decrease. The fact, however, is that the graphs for both countries are very similar (although the levels are lower in Canada):

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These similar movements in the rate of homicides, combined with very different capital punishment policies, indicate that the latter don’t have a real influence on the former. While the moratorium in the U.S. in the 1970s is blamed for the concurrent rise in number of homicides, we see that a similar rise occured in Canada, where the death penalty was abolished many years earlier. And, similarly, the recent decrease in homicides, said to be the result of the reinstatement of the death penalty in the U.S., also occured in Canada where there hasn’t been a reinstatement.

The same is true when we compare states within the U.S. Death-penalty states and non-death penalty states have witnessed very similar movements in homicide rates:

The drivers behind the movements in homicide rates can’t be found in capital punishment policies and hence must be found elsewhere. But then you need to be willing to look. I don’t think that those who believe in deterrence are willing to look.

More on capital punishment.

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More on multiculturalism here and here.

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This post is by guest-writer Line Løvåsen.

The military-industrial complex

War makes a profit (in monetary terms), peace doesn’t. President Eisenhower warned us in a speech in 1961 about the military-industrial complex (MIC):

We must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. (source)

The MIC is a state-industry alliance and the only part of economic production intent on destruction and conducted in secrecy.

The post-Cold-War world

In its “Arms availability report” (1999), the ICRC (International Committee of the Red Cross) shows how the changes in conflicts and the evolving “security-business” are reflected in the military-industrial complex. During the Cold War, weapons were available for global political and strategic purposes. Nowadays, weapon transfers (a broader term than arms trade, including not only commercial sales) imply economic and employment considerations, not just military/political/strategic ones as before.

Arms control has suffered a breakdown in the post Cold War-world. The industry operates at the moment without regulation. Annual global military spending is the same as the debt of all development countries. Arms producing countries earn more on arms sales to developing countries, than they give in aid. The 5 biggest arm producers are permanent members of the Security Council. The biggest clients are often developing countries with highly authoritarian governments. Selling arms to those countries leads to increased oppression of local people and a higher risk of violent conflict. People are aware that the oppression by their leaders is supported by western arms sales (and in other ways), which creates anti-western resentment.

The withdrawal of superpower support after the end of the Cold War has resulted in in a breakdown of governing stuctures in many countries. Decentralization of control and of the chain of command has created power vacuums in many states. Weapons end up in the hands of war lords and militia groups, and turned against civilians.

Small arms

There is a “small arms plague” in the world today. The post-Cold-War breakdown of many states, resulting from superpower withdrawal, has led to many intrastate conflicts. Small-arms and light weapons (SALW) are well-suited to such conflicts because of their simplicity, durability, portability, the ability to conceal, low cost and wide availability and lethality. Small arms are hand guns, pistols, sub-machine guns, mortars, landmines, grenades and light missiles. There are 500 billion of these weapons around the world, and 1134 companies producing and selling them. These weapons are also highly suited for illicit trafficking and operation by children (more on child soldiers here). Small arms are, in fact, Weapons of Mass Destruction (WMD’s), according to the International Action Network on Small Arms (IANSA).

The spread of small arms is both a cause and effect of underdevelopment and poverty. The growing availability of small arms has been a major factor hindering post-conflict rebuilding and development. Instead of being able to focus on investment in well-being and economic development, the poor are burdened with the cost of nursing the injured and paying for informal forms of security, like paramilitary groups. Much of the initiative to reduce and control small arms has been left to the poor communities themselves, with little help from the rest of the world, which seems more interested in economic self-interest. Especially the arms producing and exporting countries are more concerned about the possible consequences of arms control on their own economies. And it doesn’t help that many governments capable of donating funds towards arms control do not recognize civilian ownership of arms as a problem.

Some 300,000 to half a million people around the world are killed by small arms each year. These weapons are the major cause of civilian casualties in modern conflicts. 80-90% injured during war come from small arms. It’s strange therefore that the focus of many in the West is on controlling weapons of mass destruction, proliferation of atomic weapons, biological and chemical weapons, and that they leave the trade of conventional weapons and small arms unfettered.

The arms industry’s influence on politics

One reason is of course the profitability of this trade. But the influence of the arms industry on politics isn’t limited to the small arms niche. Notwithstanding the fact that most future security threats will be caused by terrorism and internal wars resulting from state failure, many governments still equip their armies for large interstate conflict. This, like government passivity regarding small arms, is the result of the influence of the arms industry on politics.

The economic benefits of the arms industry

The report “Escaping the Subsidy Trap: why arms exports are bad for Britain (2004)” from the British American Security Information Council (BASIC), counters the economic myths that the UK government uses to justify its support for arms exports.

The government frequently cites protection of defense jobs as a key reason for supporting arms exports. The BASIC report, however, concludes

• employment dependent on arms exports, constitutes only 0.25 percent of the national labor force
• far from providing jobs, it diverts skilled workers and investment away from more effective job-creating activity in the civil economy
• often the weapons are produced abroad, and sold to other countries.

It’s clear that some corporations and governments profit for the arms trade, not the people and the economy.

The UK government states that arms exports contribute significantly to the balance of payments and thus benefit the wider economy. The report concludes that defense exports’ share of total UK exports has consistently reduced over recent years; the economic benefits of arms exports are insignificant.

Some statistics on the arms trade and on military spending.

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From SIPRI:

Global military spending reached a record $1,464 billion last year with the United States taking up by far the biggest share of the total. Arms shipments were up 4 percent worldwide from 2007 and 45 percent higher than in 1999. The United States accounted for 58 percent of the worldwide increase between 1999 and 2008. China and Russia both nearly tripled their military spending over the decade. Other countries such as India, Saudi Arabia, Iran, Israel, Brazil, South Korea, Algeria and Britain also contributed substantially to the total increase. Last year’s military spending comprised about 2.4 percent of global gross domestic product, corresponding to $217 per capita.

From The Economist:

Israel spends most on defence relative to its population, shelling out over $2,300 a person, over $300 more than America. Small and rich countries, and notably Gulf states, feature prominently by this measure. Saudi Arabia ranks ninth in absolute spending, but sixth by population. China has increased spending by 10% to $85 billion to become the world’s second largest spender. But it is still dwarfed by America, whose outlay of $607 billion is higher than that of the next 14 biggest spenders combined.

More on the arms industry.

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More on immigration.

If you care about human rights, it’s extremely important to measure the level of protection of human rights in different countries, as well as the level of progress or deterioration. Measurement in the social sciences is always tricky; we’re dealing with human behavior and not with sizes, volumes, speeds etc. However, measuring human rights is especially difficult.

Some examples. I talked about the so-called catch 22 of human rights measurement in this post. In order to measure whether countries respect human rights, one already needs respect for human rights. Organizations, whether international organizations or private organizations (NGOs), must have some freedom to control, to engage in fact finding, to enter countries and move around, to investigate “in situ”, to denounce etc. Victims should have the freedom to speak out and to organize themselves in pressure groups. So we assume what we want to establish.

The more violations of human rights, the more difficult it is to monitor respect for human rights. The more oppressive the regime, the harder it is to establish the nature and severity of its crimes; and the harder it is to correct the situation.

So, a country which does a very bad job protecting human rights, may not have a low score because the act of giving the country a correct score is made impossible by its government. On the other hand, a low score for human rights (or certain human rights) may not be as bad as it seems, because at least it was possible to determine a score.

Another example: suppose a country shows a large increase in the number of rapes. At first sight, this is a bad thing, and would mean giving the country a lower score on certain human rights (such as violence against women, gender discrimination etc.). But perhaps the increase in the number of rapes is simply the result of a larger number of rapes being reported to the police. And better reporting of rape may be the result of a more deeply and widely ingrained human rights culture, or, in other words, it may be the reflection of a growing consciousness of women’s rights and gender equality.

So, a deteriorating score may actually hide progress.

The same can be said of corruption or police brutality. A deteriorating score may simply be a matter of perception, a perception created by more freedom of the press.

I don’t know how to solve these problems, but I think it’s worth mentioning them. They are probably the reason why there is so little good measurement in the field of human rights, and so much anecdotal reporting.

“Need” now means wanting someone else’s money. “Greed” means wanting to keep your own. “Compassion” is when a politician arranges the transfer. Joseph Sobran

That would be what we call “redistribution” or, in the words of Obama, ”spreading the wealth around“. Regular readers know that I’m a proponent of social justice, but I also believe that this is a priori a citizen responsibility. The state should intervene and forcefully redistribute only when citizens fail to act responsibly towards their fellow-citizens. Charity is proof that people don’t always need to be forced by the government to help the needy, who, by the way, don’t want other people’s money, just a decent life.

Here is a post giving some more detail on the role of citizens and the government with regard to poverty reduction.

Tien-An-Men Square, by www.graffiti.bbdo.ro

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From a “letter to the editor” of The Economist:

SIR – I thought your readers would be interested to learn that I bought a copy of The Economist at Shanghai airport intending to read the article on the 20th anniversary of Tiananmen listed in the contents (”Silence on the square“, May 30th). The article was missing. I went back to the news stall and checked all the other copies only to find the same page had been removed from all of them, and some had been reassembled with the pages in the wrong order.

I complained to a member of staff tongue in cheek that I should not have to pay full price for a publication with pages missing, and was amazed when she agreed and, after talking to her superior, offered a discount of 5%. Chris Lowsley, Bidborough, Kent

What a concise description of the typical Chinese combination of authoritarianism and a shrewd business sense.

More on Tienanmen. More on China in general. More on censorship in general.

A while ago, I posted something about the rise of matriarchy – or better the end of patriarchy – in the U.S. (see here). In the meantime, I found this additional piece of information which is another sign of decreasing gender discrimination (or increasing discrimination of another kind, if you want):

More on gender discrimination.

(source, where you can actually buy this T)

More on CCTV.

When diplomats lose their economic inhibitions and, exceptionally, replace economic self-interest by moral courage and criticize China for its human rights record at home (or, increasingly, abroad as well), or even when a government official simply meets the Dalai Lama without saying anything about China, it is as if the Chinese government plays a set of prerecorded responses. Every time, one hears the same, stale phrases about “intervening in the internal affairs of a sovereign country”, “hurting the feelings of the Chinese people”, “insulting the dignity of our nation,” and “disrespecting our people and their principles”. A Chinese blogger went through The People’s Daily (the Chinese version of the Pravda) to see which country is most disrespectful of China. On the first place is Japan, followed by the U.S. and NATO. But many countries seem to lack respect:

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More on intervention in China here and here.

I mentioned some of the most popular measures of democracy in this previous post, but somehow managed to forget Polity IV. This is, like Freedom House and others, a project ranking countries according to their political regime type. It’s extensively used in comparative and causal analysis that require a distinction between democracies and non-democracies, partly because its time series start from the year 1800.

It’s

perspective envisions a spectrum of governing authority that spans from fully institutionalized autocracies through mixed, or incoherent, authority regimes (termed “anocracies”) to fully institutionalized democracies. The “Polity Score” captures this regime authority spectrum on a 21-point scale ranging from -10 (hereditary monarchy) to +10 (consolidated democracy). (source)

An example of the output:

The Polity Score is the aggregate of 6 component measures that aim to record what are called key qualities of democracies: executive recruitment, constraints on executive authority, and political competition.

However, it seems that Polity IV doesn’t adequately measure what it claims to measure. Its concept of democracy is quite thin, resulting in a fair number of “perfect democracies”, whereas we all know that there is no such thing in the world we live in. And other countries, which are obviously dictatorial, are classified as fairly democratic. A quote from this paper (which is an attempt to improve Polity IV):

Polity’s 21-point democracy/autocracy scale, illustrated by the dashed line [in the figure below], tracks the major changes in British political history, but only roughly. The Reform Bill of 1832 revised a complicated system of determining the franchise by increasing the number of voters from 500,000 to 813,000. Despite the modesty of this expansion, changes in the Polity Score for Britain give a sense of greatly expanded democracy, moving from a -2 (democracy=4, autocracy=6) to a +3 (democracy=6, autocracy=3).

However, as illustrated by the solid line, only six percent of the adult population voted even after the reform.

While the male franchise had broadened considerably by 1884, suffrage still excluded agricultural workers and servants. Actual voter turnout reached 12% of the population only in the election of 1885 before falling, and didn’t return to that level again until 1918. All the while, Polity scores for executive recruitment and competition increased while institutionalized autocracy decreased. In 1880 the Polity democracy score stood at 7 (autocracy=0). By 1901 the democracy score rose to 8 and by 1922 Polity suggests that Britain was a “perfect 10″ democracy, even though full male suffrage was not achieved until 1918 and full female suffrage until 1928.

Britain has received the highest democracy rating ever since, even though the voting rate has never exceeded 60% of the adult population.

The high scores that Britain receives from 1880 on are misleading and, with respect to changes in participation, mistimed. As Figure 1 illustrates, participation doubled during a period Polity records as unchanged and doubled again during a modest 2 point move in Polity.

The racial exclusion in South Africa also demonstrates the danger of conceiving democracy without taking account of the breadth of citizen participation. According to Polity, South Africa was a relatively stable democracy from 1910 until 1989. It was coded a 7 out of 10 on democracy and a 3 of 10 on autocracy, bringing its score to +4. A positive score is surprising because it ignores the exclusion of the 90 percent of the population that did not – most could not – vote.

Switzerland, our final example, has scored a perfect 10 out of 10 on democracy in the Polity dataset since 1848, even though women – roughly half the population – were not granted the right to vote until 1971, 123 years later. Furthermore, electoral turnout has hovered around 30% recently, despite virtually universal suffrage. One reason is that Switzerland’s collective executive is an organizational form that diminishes voter motivation by minimizing the significance of election outcomes. Surely such a system should be regarded as less democratic than one in which most citizens participate in elections that actually make a difference in the leadership and policies of the nation.

More on measuring democracy.

PJ O'Rourke

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I have a 10-year-old at home, and she is always saying, “That’s not fair”. When she says that, I say, “Honey, you’re cute; that’s not fair. Your family is pretty well off; that’s not fair. You were born in America; that’s not fair. Honey, you had better pray to God that things don’t start getting fair for you”. P.J. O’Rourke

More on justice and the natural lottery.

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Should someone in an audience – or an entire audience for that matter – have the right to silence a speaker by way of hostile and loud reactions? Or is this a case in which the right to free speech of an audience or someone in an audience can be restricted? In the U.S., “heckling” as it is called does not violate the right to free speech of the speaker who is being heckled. The First Amendment only protects speech from government infringement, not from private infringement (”Congress shall make no law…”). In this case, the heckler is presumed to be a private person, and his or her actions therefore cannot violate the First Amendment.

I believe that this is an American anomaly, and that people’s right to free speech should be protected against both government and private infringement. Private individuals can also violate someone’s right to free speech.

Still, let’s return to the case of heckling in the U.S. Audiences have a right to heckle, as they should have. The leading judicial decision here is In re Kay of the Supreme Court of California. This decision overturned a 4 month prison sentence for hecklers who had shouted and clapped during a speech by a member of Congress.

The Court granted the right to heckle and stated that this is a legitimate part of the “cacophony of democracy”. Even though heckling and booing and shouting and other types of disruption may be uncivilized, impolite and often stupid, it’s free speech and it should be protected.

But at the same time, the Court allowed the state to punish hecklers when their disruption results in the impossibility to continue a meeting or a speech. The right to free speech of the hecklers has to be balanced against the right to free speech of the heckled. One right shouldn’t be allowed to destroy the other right.

Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship. In re Kay

I think the Court got this one absolutely right. And it seems that there’s a recognition that the state isn’t the only threat to free speech.

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More on discrimination. More collections of images.

war on terror and privacy Ian Waldie Getty Images

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Just a few more thoughts as a follow-up from this post, this one, and this one. During an apparently never-ending war on terror (what could be the end of such a war?), people are quick to believe their “liberal” governments when they tell them that a bit less privacy is a cheap price to pay for more physical security.

However, many of those governments, because they claim to be “liberal” and “democratic”, feel uneasy about this. After all, if rights are tradeable like this, if they depend on the circumstance and should be surrendered when the circumstances become more difficult, what is left of them? They become a luxury for good times, rather than a safeguard in bad times. (Another sign of this is the way in which the war on terror is eating away at other rights as well, e.g. the right not to be tortured; but let’s stick to the right to privacy here).

Because of this unease, governments claim that the right to privacy isn’t really being sacrificed. ”If you have nothing to hide, you have nothing to worry about”. It’s only the terrorists whose right to privacy is being limited. But in the meantime

• DNA databases are being established for almost entire populations
• CCTV is omnipresent
• “data mining” is used extensively (after all, how can you determine if someone is a terrorist if you haven’t first violated his or her right to privacy?)
• etc.

I don’t mean to imply that rights such as the right to privacy are absolute or that there can never be a good reason to limit one right for the sake of another. On the contrary. But limiting rights can only be done when there is a “clear and present danger” for other rights or for the rights of others. A vague and everlasting “war on terror” provokes limits on rights when there’s no such danger. Limiting rights becomes the normal MO of governments keen to prevent such a danger from ever occurring. And that’s unacceptable. Obviously, terrorism is a danger, but governments can only limit rights in order to prevent it when the danger is clear and present, and imminent. A general and vague fear of terrorism will not do.

More on the war on terror. More on privacy.

(source, click here if you want to know how this ranking was established)

More on children’s rights.

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Watch the hate in the faces. One can almost hear the slurs. See here for the story behind this picture. The African American girl in the foreground was one of the Little Rock Nine. On September 4, 1957, she and eight other African American students attempted to enter Little Rock Central High School, which had previously only accepted white students. They were stopped at the door by Arkansas National Guard troops called up by Democratic Arkansas Governor Orval Faubus, in defiance of a unanimous decision of the United States Supreme Court (Brown v. Board of Education). They tried again without success to attend Central High on September 23, 1957. The next day, September 24, President Dwight D. Eisenhower sent U.S. Army troops to accompany the Little Rock Nine to school for protection.

Orval Faubus

Here is the image from another perspective:

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More on segregation here. Suggest a new image in this series.

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Over the years, many institutions and organizations have established databases with information regarding the level of respect for different human rights. Every institution or organization usually focuses on one specific human right, or at most on a well-defined subset of human rights. As I stated here, there is as yet no general “human rights indicator” which would allow us to give a country (or the world) a single score for the level of respect for human rights generally.

Still, it is extremely important to have good data on individual human rights, and in this page I’ll try to list the available data sources for each human right. In order to do that, I established a stylized set of human rights, derived from the major international human rights instrument which is known as the International Bill of Human Rights (IBHR), comprised of the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social, and Cultural Rights (1966).

I separate these rights into the 3 traditional groups of rights - freedom rights, political rights and social and economic rights. For each human right, I list and give examples of some of the authoritative measurements, if any, and I invite readers to suggest additional sources and to mention quality problems with cited sources. (I included hyperlinks to internet sites, but these links may “die” at some point in time since the owners of the sites may decide to modify these links).

Read more.

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More on private property. More on looting.

Cross burning at nighttime Ku Klux Klan (KKK) rally, Photo by Hank Walker, 1946, Time Life

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Cross burning is a typically, if not uniquely American type of “speech”. It’s the quintessential expression of hatred of African-Americans. The usual culprits are members of the Ku Klux Klan or KKK (and copycats). Historically, cross burning has been a signal of impending violence and terror. It was often a morbid prelude to lynchings or other acts of racist violence.

Nowadays, cross burnings are relatively rare, and intended to intimidate rather than signal the first step in actual violence. Nevertheless, given the history of cross burning, present-day occurrences understandably continue to instill a real sensation of fear and panic in the intended targets. Which is of course the intention.

The question is: should cross burning be considered as a form of speech that merits the protection of the freedom of speech (the First Amendment in the U.S.), or should it rather be an example of hate speech that can and should be made illegal?

If we focus on the U.S. for the moment, then the leading Supreme Court case is Virginia v Black. This case deals with 2 different criminal cases of people convicted for cross burning. In one case, an argument escalated and two defendants burned a cross in the front yard of their African-American neighbor. The other case involved a cross being burned in the garden of a member of the KKK during a private KKK “party”. The burning cross, however, could be seen by the general public.

Virgina v Black protects cross burning as a form of free speech, but also provides the possibility to make it illegal under certain circumstances (as we’ve seen many times before in this blog series on limiting freedom of speech, the circumstances are always important). And, according to Virgina v Black, the circumstances which would make it possible to restrict freedom of speech in the case of cross burning are not limited to those which can normally restrict freedom of speech in other cases. Speech acts that produce an imminent danger of physical violence, acts that result in reckless endangerment (in this case the risk that the act evolves into an arson attack), or speech acts that lead to trespassing are not protected by the First Amendment. Physical violence, arson and trespassing are illegal, and the fact that they are combined with a speech act doesn’t make them legal. If a speech act is combined with such illegal acts, or is likely to lead to such acts, then the speech acts are not protected by the right to free speech.

According to Virgina v Black, the circumstances which can make cross burning illegal go beyond this and include the intent of the speaker to intimidate and terrorize specific and identifiable persons, even if these persons are not in immediate physical danger. And cross burnings today usually doesn’t result in physical danger.

Now, you could say that cross burning is by definition intended to intimidate, but that’s not the case. Not all cross burnings are intended to intimidate – take the example of the KKK party cited above – and not all cross burnings are equally intimidating. It depends on the circumstances in which the cross burning takes place, and on the fact if it is clearly targeted against certain individuals. If the cross burning takes place close to the homes of African-Americans, and are part of a long chain of intimidation and racist incidents, then they are more intimidating than in other cases. And more intimidating means a higher risk that the rights of the targets will be violated. The African-Americans may feel forced to move, which violates their right to freely choose their residence. They may feel that it is necessary to keep their children away from school, which is a violation of their right to education, etc. In such cases, the right to free speech of the KKK members should obviously be restricted for the benefit of the rights of their targets. But in other cases, they may be allowed to wallow in their silly hobby.

I think Virginia v Black strikes the right balance. For another Supreme Court case on cross burning, se here.

More posts in this series.

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More on Abu Ghraib. More on torture. More on Iraq.

The Judgment of Solomon by Gustave Doré

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Then came there two women, that were harlots, unto the king, and stood before him. And the one woman said, “O my lord, I and this woman dwell in one house; and I was delivered of a child with her in the house. And it came to pass the third day after that I was delivered, that this woman was delivered also: and we were together; there was no stranger with us in the house, save we two in the house. And this woman’s child died in the night; because she overlaid it. And she arose at midnight, and took my son from beside me, while thine handmaid slept, and laid it in her bosom, and laid her dead child in my bosom. And when I rose in the morning to give my child suck, behold, it was dead: but when I had considered it in the morning, behold, it was not my son, which I did bear.”

And the other woman said, “Nay; but the living is my son, and the dead is thy son.” And this said, “No; but the dead is thy son, and the living is my son.” Thus they spake before the king.

Then said the king, “The one saith, ‘This is my son that liveth, and thy son is the dead’: and the other saith, ‘Nay; but thy son is the dead, and my son is the living’.” And the king said, Bring me a sword. “And they brought a sword before the king.” And the king said, “Divide the living child in two, and give half to the one, and half to the other.”

Then spake the woman whose the living child was unto the king, for her bowels yearned upon her son, and she said, “O my lord, give her the living child, and in no wise slay it.” But the other said, “Let it be neither mine nor thine, but divide it.”

Then the king answered and said, “Give her the living child, and in no wise slay it: she is the mother thereof.”

And all Israel heard of the judgment which the king had judged; and they feared the king: for they saw that the wisdom of God was in him, to do judgment…

More on the concept of a fair trial.

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If freedom is a good only because of the value that lies in exercising it, then those who lack the capacity or resources to exercise a given freedom are being denied the enjoyment of it, even though they may not formally be being obstructed. David Beetham (source)

Either freedom is important, or it isn’t important. It can’t be the case that freedom is important for certain people and that it may be legitimately denied to other people. I don’t think that we’ll still find many people defending such a position.

If people should be allowed to enjoy freedom equally, then we should try to remove the obstacles which make it harder for some people, compared to others, to enjoy freedom. Traditionally, these obstacles were believed to be government restrictions on freedom, such as laws against certain religions, laws against the expression of certain ideas, or laws discriminating against people of a certain race or gender for example. Gradually, people began to understand that private actions can also counteract equal freedom: slavery, gender discrimination in the family etc.

A third step was the realization – still incomplete – that equal freedom doesn’t only suffer from active obstruction – public or private – but also from unequal capacities or resources. Equal freedom requires both the absence of coercion and the presence of resources. People who lack a decent income, a basic education and good health will never be as free as their fellow human beings who possess these resources.

The question is then, how can people acquire these resources in case they lack them? Much depends of course on their own efforts. Their fellow human beings may decide to act charitably and in a spirit of “fraternité”. A lack of charity is as effective as discrimination when it comes to restricting equal freedom. And the same is true for governments.

However, people who find themselves at the wrong end of unequal freedom don’t have to count on government or private charity. They have a right to those resources necessary for equal freedom. This right has been translated into the concept of economic rights. Read more.

Read other posts in this series.

Notice the absence of overlap in this Venn diagram, obviously indicating that beggars can’t choose, and that those who can choose are unlikely to be beggars. The primary reason to object to poverty is precisely the lack of choice it implies, or, in other words, the inequality of opportunity. Poor people have less opportunities to choose different life projects because they have to spent too much time and energy on basic needs.

(source, an Amnesty International ad; the text says “every year, 2 million girls suffer the pain of genital mutilation…”)

More on this topic.

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Should people be allowed to enjoy an unlimited right to free speech at work, and be able to ask courts to undo measures (such as sacking or disciplinary measures) which their employer has taken against them as a result of their speech? Or do corporations and government agencies have a right to take measures against employees engaging in certain types of speech, a right which therefore trumps the right to speech? And is there a difference between the rights of corporations and the rights of (certain) government agencies?

I could make this brief, and say that employees are citizens like all other citizens, and should have a right to free speech. I could say that, if there are any possible and acceptable (or necessary) limitations on the right to free speech, they have nothing to do with the fact that those engaging in speech act as employees or as citizens. I could say that the place where people speak – at work or elsewhere – doesn’t change anything.

Unfortunately, I can’t. The place where speech takes place does matter, as I have mentioned already in the case of hate speech (hate speech in front of an angry mob gathered at the house of a pedophile is different from the exact same speech written down in a book almost no one reads).

As I will argue, the same is true in the current case. Speech at work may be treated in another way than speech elsewhere. There are some good reasons to impose stricter limits on speech at work than on speech in general. Employers therefore also have the right to take certain measures against employees engaging in speech which may be restricted (in fact, these measures are the restrictions). Also, certain government agencies can impose more and wider restrictions than private corporations. All these restrictions on the freedom of speech are possible because they are necessary for the protection of other rights or the rights of others (I try to make this a general rule when discussing restrictions on human rights, see here).

But before I argue this, I want to sketch the baseline first. Free speech is very important, and I don’t think there are many people who believe this more than me (as any regular reader of this blog knows). As government agencies, but also private corporations, regularly violate human rights, free speech at work is perhaps even more important than free speech in general. People working for agencies or corporations engaged in rights violations, must have the right (and the possibility) to denounce these practices. So, if I argue for the right of corporations and agencies to restrict, in certain cases, the right to free speech of their employees, I have to be careful to do so without jeopardizing the important rights of whistleblowers.

The U.S. Supreme Court, which allows government agencies to limit the freedom of speech of their employees, also acknowledges the importance of whistleblowers. When the speech in question is of “public concern”,* the Court uses a higher threshold to uphold speech-related disciplinary measures against employees. (The Court uses the so-called Pickering test). (However, the Supreme Court is still oddly restrictive in this respect. Whereas, normally, free speech is considered to be very important by the Court, in case of speech at work, “public concern” is not enough to uphold the right to speech. It’s just a first threshold to be passed for the Court to asses the possibility of reviewing disciplinary action. When there is no “public concern”, there’s no right to free speech at work according to SCOTUS!).

Now, when and why should the rights of corporations and government agencies to sanction their employees for acts of speech, take precedence over the right to free speech of these employees? Corporations and agencies have a right to function without disruption. A government agency even has a duty to function without disruption, because it serves the public interest. And this interest more often than not includes certain human rights. For example, a government hospital has a duty to protect the healthcare rights of citizens. If speech acts at the hospital disrupt its normal functioning, the rights of citizens may be put at risk. If, in addition, these speech acts don’t have anything to do with the functioning or organization of the hospital, it is difficult to see why they should be more important than the rights of patients. However, if the speech acts uncover serious incompetence at the hospital, the disruption that follows these acts may be a price that is worth paying.

Regarding corporations, the burden of proof on those wishing to impose restrictions on speech at work, is heavier. Corporations usually don’t work for the protection of human rights of citizens, and therefore cannot put these rights in the balance. However, corporations are the property of certain citizens, and these citizens have a right to use this property. Speech acts in corporations can result in disturbances of a kind that makes this use of property difficult or impossible. If, in addition, these speech acts don’t serve any public purpose or address a public concern, it may be justified to consider the right to property more important than the right to speech, in certain cases. For example, should we really accept and protect flag burning during office hours and in office buildings? And who would take sides with an employee wasting huge amounts of company time on frivolous speech?

And there’s another problem with judicial protection of speech at work. Employees may claim that disciplinary measures taken against them (including dismissal) were based on their speech acts, whereas in reality these measures were based on a lack of performance. Employers may become unwilling to take such measures because of the risk of costly litigation. Outspoken but incompetent employees will then be privileged, and others discriminated. Another result: the employer’s authority and ability to organize and lead are put at risk if many of her decisions can be reversed by judges.

* This “public concern” usually means that the speech in question should have something to do with the preferable manner of operating the agency, or should contain information which is vital to proper decision-making. Both definitions of “public concern” cover the activities of whistleblowers.

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More on the usefulness of free speech.