political graffiti

Political Graffiti (242): Free Speech Enforcement

A clever Banksy on Canal Street, Chinatown, New York City:

banksy graffiti is free speech

(source)

2928287400_860025f7e3

(source)

If the title of this post isn’t immediately clear: the rat graffiti is the expression; the painter – who is a painted painter (look carefully) - represents government censorship (anti-graffiti laws can be seen as censorship but if you want you can see the painter as a mere metaphor for censorship); and the scissors are the enforcers of expression. In a sense, this is anti-anti-graffiti graffiti (no typo).

More generally, it’s true that in many cases people – like the rat – can only count on themselves to enforce their rights.

More Banksy. More graffiti.

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citizenship, international relations

Migration and Human Rights (47): A Phenomenology of Borders

Border, by Banksy

Border, by Banksy

Let’s admit it: borders are an illusion. They don’t exist. The things that do exist are border controls, deportations, entry restrictions, visa requirements, border shootings etc. Those things are real enough and often painful for those feeling the brunt. They are facts in the original sense of the word, from the Latin facere, “to do”. They are things that people do to each other.

But none of those things, not even all those things put together, amount to what we think are borders. We believe, erroneously, that borders are separation lines, separating two or more political and geographical spaces, territories, or pieces of the earth. There’s a real physical, even earthly sense of separation that is implied in the border concept. Borders cut up the earth.

But of course they don’t, really. Borders aren’t facts but ideas, and as ideas they are more or less realized, but never completely real. Those who claim to protect the borders – the “front” in frontière – are not protecting a thing but are rather striving for an ideal, an ideal justified in their minds by a variety of other ideals (culture, prosperity, democracy etc.). The separations are merely fragmentary in real life. This is clear from the fact that people routinely cross borders illegally and without permission, as if there’s nothing there, or at least as if there isn’t a clear separation between territories. They may sometimes find that the difficulty of moving increases and then decreases. Even if they are stopped, shot, caught or deported – which often doesn’t happen – they don’t experience a so-called border. They merely experience an obstacle limited in space, not the territory-encompassing and circular separation that a border is claimed to be.

The lack of reality of borders is also evident from their lack of stability. Below are a few examples. Poland, for instance, ceased to exist completely for some time in its history and its borders fluctuated violently throughout:

Territorial-changes-of-Poland-1635-2009-small

(source)

The Balkans have even given their name to the process of shifting borders:

578px-Balkans_Animation_1800-2006

(source)

Sweden is perhaps an unexpected example of instability:

sweden-through-history2

(source)

This is China, or, better, these are the different China’s throughout history:

china-map

(source)

And here’s France:

220px-French_borders_from_985_to_1947

(source)

In fact, you could pick just about any part of the world and see the same thing. Perhaps because we consume more news than history we tend to see international borders and the shapes of countries as fixed entities. It’s really a big news story when a territory secedes, when countries unify etc. And yet, over a slightly longer time frame, that is normality. You can look at this in two ways:

  • Either this proves the case for strong borders: most of the changes were due to foreign invasions.
  • Or it’s an argument for the lack of importance of borders: after all, if borders change over the course of a few decades, it’s hardly fair to keep people out who didn’t move and who turned from insiders to outsiders through no fault of their own.

My point is that both ways of looking at the reality of borders should retain some validity. If we agree that borders are an idea that can never be realized completely, then the argument is about the degree of realization. Border defenders should realize that there will always be unauthorized cross-border movement because they can’t have their factual separation the way they like it. Defenders of migration, on the  other hand, should admit that “open borders” is not the same thing as “no borders”. Even if it’s just an idea, borders merit some attempt at realization. You can allow limitless immigration and yet try to defend the border against invading armies or immigrants intent on terrorist attacks. This way, your country can remain an independent entity – designed by its borders, or better its idea of a border – while opening its borders to immigrants. Also, you can allow limitless immigration and yet give citizenship only to people born within the country. That’s another way to retain your country and allow immigration at the same time. Hence, immigration restrictionists are wrong to claim that an open borders policy destroys the very concept of the border and equals a no borders policy.

One final image, which should be labeled “who you calling immigrants?”:

BfULY4cCIAAKc9q

(source)

More posts in this series are here.

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human rights violations, most absurd human rights violations

The Most Absurd Human Rights Violations (114): Child Starves to Death in the UK

banksy beggar

banksy’s beggar

(source)

The government has been warned it must urgently fix flaws in its support system for successful asylum seekers, after a destitute child starved to death in temporary accommodation in Westminster. … [T]he family had become dependent on “ad hoc” charitable handouts despite a successful asylum claim because of “significant problems” transferring the family from Home Office to mainstream welfare support services. The family of three was forced to “actually become homeless” before local authorities could offer official help. (source)

Brings to mind this older post. More absurd human rights violations here.

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law, limiting free speech, philosophy

Limiting Free Speech (46): Lies and False Statements of Fact

you lie banksy

by Banksy

(source, the story that inspired this work is here)

Should lies and false statements of fact be protected by free speech laws, or can the speech rights of those who intentionally lie be limited in some cases? The US Supreme Court believes the latter is true, somewhat surprisingly given the often quasi-absolutist nature of First Amendment jurisprudence in the US. In Gertz v. Robert Welch, the Court claimed that

there is no constitutional value in false statements of fact.

There are some obvious problems with this exception to free speech. First, it can’t work unless it’s possible to distinguish real lies from false statements of fact that are simple errors. This means it must be possible to determine someone’s intentions, and that’s always difficult. However, one could claim that a person’s speech rights can only be limited on account of lying when his or her intentions are clear.

That would save the exception, but it wouldn’t undo some of its harmful consequences. People who speak in good faith may still be afraid that their speech will unwittingly come across as false, without their good intentions being absolutely clear. Hence, they may fear that they will run afoul of the law, and limit their speech preemptively. The lies exception to freedom of speech has therefore a chilling effect, an effect which is enhanced by the fuzzy nature of the difference between facts and opinions.

Given these problems with the lies exception to free speech, how could we instead argue in favor of free speech protection for lies and knowingly false statements of fact?

One rather ironic way to do it is to appeal to the metaphor of the marketplace of ideas: free speech is necessary for the pursuit of truth (or, in a weaker form, for the improvement of the quality of our ideas). John Stuart Mill has the canonical quote:

John Stuart Mill

John Stuart Mill

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

As such, this doesn’t really justify the acceptance of expressions of lies. If we need lies to see the truth more clearly, you could also say that we need evil to see the good more clearly, and few I guess would accept the latter statement. However, if we interpret this quote liberally (pun intended), we may get somewhere. We could argue that someone’s lies can motivate others to search for, investigate and disseminate the truth. For example, I think it’s fair to say that holocaust deniers have done a lot for holocaust education. They have given teachers and researchers a hook.

cure for cancerAnother reason why we wouldn’t want to prohibit lying, at least not across the board, is the fact that lies are often necessary for the protection of human rights. This is the case that’s made in jest in the cartoon on the right, and is also the origin of the rejection of Kant’s claim that we shouldn’t lie to the murderer inquiring about the location of his intended victim. (I have an older post about the usefulness of lying here).

Michel de Montaigne

Obviously, nothing said here implies that lying is generally beneficial or that it should be welcomed and protected whatever the circumstances. If lying becomes the norm, we will most likely lose our humanity. In the words of Montaigne, “we are men, and hold together, only by our word” and our civilization and systems of cooperation would come crashing down if we can’t generally trust each other. However, the general albeit not exceptionless moral good of telling the truth doesn’t translate into a right to be told the truth or a legal duty to tell the truth (and to shut up if we can’t). Mortality and human rights don’t completely overlap.

If lying were to become the normal habit, free speech would lose its meaning. We have free speech rights precisely because we want to share information, opinions and beliefs, and because we want to learn and pay attention to verbal assertions. There has to be some level of general trust that people speak their minds rather than the opposite. Otherwise it’s better if there’s no speech at all, and hence also no right to free speech. Hence, the free speech defense of lying has to be limited somewhere.

That is why, despite the fact that in general there shouldn’t be a right to be told the truth or a legal duty to tell the truth, we do want some cases in which there is such a right and such a duty. Lying is legitimately prohibited in the case of libel, of witnesses testifying under oath, of someone impersonating a doctor etc. But those are cases of different rights having to be balanced against each other: the free speech rights of the liars against the rights of those suffering harmful consequences when people lie (consequences such as bad medical treatment, miscarriages of justice etc.). The duty of government officials and elected politicians to tell the truth is based on the requirement of democratic transparency, and is therefore also a case of balancing rights: democracy is a human right, and democracy can’t function if there’s no transparency and if people in power don’t tell the truth about what they are doing.

More posts in this series are here. And here are some posts about the related topic of lying with statistics.

(image source)
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