A Qatari poet sentenced to life in prison for inciting the overthrow of the government and insulting Qatar’s rulers has had his jail term cut.
Mohammed al-Ajami’s sentence was reduced to 15 years, his lawyer said.
The case against Mr Ajami is said to be based on a poem he wrote in 2010 which criticised the Emir, Sheikh Hamad al-Thani.
But activists believe the authorities were angered by a 2011 poem he wrote about authoritarian rule in the region.
In the poem Tunisian Jasmine, which he recited and then uploaded to the internet in January 2011, Mr Ajami expressed his support for the uprising in the North African state, saying: “We are all Tunisia in the face of the repressive elite.”
He also denounced “all Arab governments” as “indiscriminate thieves”.
Mr Ajami, also known as Mohammed Ibn al-Dheeb, had previously recited a poem that criticised Qatar’s emir and was posted online in August 2010. (source)
The human right to free speech protects people against compelled silence, but can and should it also protect them against compelled speech? I think in general the answer is yes. Free speech guarantees freedom, and freedom in any definition of the word should include both the freedom to do and not to do. Hence free speech rights include both the right to speak freely and the right to remain silent – or, in other words, the right not to be anyone’s coerced messenger. (In general, it’s true that a right to do something also includes a right not to do it. More here).
A sophist might reply: “Isn’t free speech about being allowed to speak your own mind? If so, wouldn’t that leave it open for the government to compel you to utter what is not on your mind, as long as this is not incompatible with what is on your mind?” Precious little of our freedom would be left if this were true. This kind of justification for coercion requires more than the statement that what people are coerced to say is not incompatible with the views of those who are coerced.
So, if we accept that free speech in general includes the right not to be compelled to speak, what about possible exceptions? Are there not some forms of compelled speech that are legitimate exceptions to free speech? Most of us (outside the US at least) have little trouble accepting health warnings on cigarette packaging. The same is true for legal requirements that fundraisers disclose their donors, or advertising rules mandating the display of the total fare – including taxes and fees - in bigger type than other fare information.
However, we can just as well cite examples of legally compelled speech that are much more troubling. Some states in the US requires doctors, under the rubric of “informed consent”, to warn abortion patients that the procedure places them at “increased risk of suicide”. Other US states issue car license plates with religious symbols or messages. I find this difficult to understand: those are two forms of compelled speech that are allowed under US law whereas warnings on cigarette packaging are not, even though the latter are obviously less troubling from a human rights point of view.
Perhaps the factual truth of the speech that is being compelled should determine whether or not the compelled speech is legitimate. In that case, cigarette warnings are OK, but the above cited abortion warning is not. Still, that’s not satisfactory: few of us would want to live in a state that compels us to say 1+1=2 before each meal. And what is truth anyway? Also, what about compelled messages that aren’t about truth, such as the pledge of allegiance?
A much better rule is the following: compelled speech is allowed only if it is necessary and effective in order to protect human rights. Cigarette warnings would still be OK (health is a human right), to the extent that they are necessary and effective (this is an empirical matter). Disclosure requirements for fundraisers would also be OK (democracy is also a human right), under the same conditions. Even false information could then be part of compelled speech, as long as it furthers the cause of rights: one can imagine a situation in which forcing someone to lie to a terrorist can save lives.
A final remark: compelled speech is not always compelled by the government. Someone distributing leaflets in a restaurant, giving the impression that the restaurant owner endorses the content of the leaflets, is also engaging in a form of compelled speech. This form is equally unacceptable, at least as long as the leaflets don’t serve an important human rights goal, and one that is important enough to override the right to free speech and the right to private property of the restaurant owner.
What if someone tells an embarrassing or potentially harmful truth about someone else to his or her employer, with the intention of convincing the employer to fire this person? Are we allowed to limit the speech rights of the speaker in question (for example, by way of the imposition of a fine, the payment of damages to the person fired or an order to remove internet pages)? And does it matter if the speaker addresses only the employer or the public at large (perhaps in the former case we’re not really dealing with free speech)?
Take this example:
Appellant Derek Schramm is a parent of children enrolled in a Roman Catholic grade school in Minneapolis. Respondent Zachary Faricy is a teacher at the school. In November 2001, Schramm sent a letter to the school principal and the parish pastor informing them of his suspicion that Faricy “might be a homosexual.” (source)
Let’s assume that we’re not dealing here with incitement to commit illegal acts. Discrimination of homosexuals is often illegal, but many religious institutions are exempt from such a rule. (Whether or not that’s a good thing is another matter, briefly discussed here). Hence if silencing this particular speaker is indeed a warranted exception to free speech then it must be one that’s different from the established exception regarding speech that incites illegal activity.
Let’s also assume that we’re not dealing with libel. Perhaps the target in this particular case is indeed a homosexual and has therefore good reason to fear that his Catholic employer will fire him if this fact about him becomes known. Libel is usually defined as a false claim intended to harm someone’s image and reputation, and so that’s not what our example is about. The intended harm is dismissal of the teacher. Like incitement to commit illegal acts, libel is an established exception to free speech rights, and one that I also want to exclude from the current discussion. What I want to do here is see whether speech that intends to get someone fired and that is neither libel nor incitement to commit illegal acts, should always be protected.
Now, speech that incites employers to fire people does impose certain demonstrable harms: the target’s right to privacy is violated, as is his or her right to a decent standard of living (in the case in which the target may not find another job in the short term). So, a priori we could have an argument here in favor of prohibiting speech that incites employers to fire people. Normally, limits to free speech can be acceptable if they are necessary in order to avoid greater harm to other human rights.
However, if we want to allow limits on speech that incites employers to fire people, would we not also be forced to accept the prohibition of public protest aimed at getting a racist or sexist radio host fired? That seems to go very far. Maybe we can limit the free speech exception as follows: in the Catholic school case the speech was directed at a single person – the employer – whereas in the case of public protest the audience is much larger. Still, that’s not a very promising route. The inciter in the Catholic school case may drum up support among other parents or write to the local Catholic newspaper if a private letter to the employer doesn’t do the job.
It’s true that the nature of the audience and the circumstances in which speech occurs can make a difference – hate speech in an obscure periodical should not necessarily be forbidden, but hate speech in front of an excited mob about to attack someone is different. But the same difference doesn’t apply here I think.
In the case of speech that incites employers to fire people – whether it’s private speech or public speech – I would prefer not to impose limits on speech but rather change the law so that it is illegal to fire people for their beliefs, words or lifestyle. And yes, that may include revoking religious exemptions to employment discrimination. After all, how exactly does it harm someone’s religious freedom if his or her children are educated by a homosexual teacher?
More posts in this series are here.
The traditional ways of silencing people are still all too common: libel or blasphemy laws, threats, the physical targeting of journalists, censorship, book burning or indexing, political correctness, exaggerated respect for people’s sensibilities etc. However, the silencers have developed new and increasingly sophisticated means. And I’m not thinking about tactics like internet filtering – this is indeed a new and sophisticated technology, but in essence it’s just a new form of book burning.
I’m thinking more about things like polarization as one of those new ways of silencing. A commonly cited justification of free speech is that it can help people to influence each other and spread their beliefs. We hold strong beliefs, we think we have good reasons supporting those beliefs, and we want to express these beliefs and these reasons in an attempt to convince others. Free speech helps us to do so.
At least, that’s the case in theory. In real life, this “marketplace of ideas” is dysfunctional. Many groups in society are not arguing, convincing or engaging in public thinking. Instead, ideas are expressed as claims rather than argued for. Expression, if you like, is limited to “brute” expression. One of the reasons for this is that expression can be motivated, not by the willingness to persuade, but by the need to show one’s identity or belonging. In other words, expression is signaling rather than arguing. Another reason for the lack of argumentation is the fact that a lot of expression is about being controversial and outrageous, antagonizing other groups on the polarized spectrum, provoking a “media storm” and cashing in on the advertizing generated by the ensuing pageviews, clicks or whatever.
If ideas aren’t debated but expressed in a “brute” way only, for whatever reason, then polarization is inevitable. No one is convinced by the brute expression of an idea or opinion. And if no one is convinced, then people stay in their respective camps. These camps then drift further apart because absent an exchange of reasons for beliefs, people start to see other groups as increasingly strange, alien and incomprehensible.
Now, polarization is of course nothing new, but I can’t help thinking that nowadays some people in positions of power are actively encouraging polarization as a means to silence debate, consciously or not. People in positions of responsibility, people who could use their power in order to organize and protect debate, use it instead to promote brute expression and hence to stifle the exchange of arguments and to polarize society. Think of news network owners, politicians, many journalists etc. These people are interested in polarized expression rather than debate, particularly the type of polarized expression that is mildly upsetting to other groups because that brings in the readers, page views, ratings and the corresponding advertizing dollars. The silencing that occurs here is not the silencing of expression but the silencing of argumentation and debate. Opinions are still expressed but no longer argued because argumentation – compared to a blunt statement of a controversial opinion - doesn’t provoke and hence doesn’t produce income.
Why do people actively promote the brute expression of ideas and the silencing of debate? Because of the dollars, of course, but also because it diminishes some discomfort. When there’s only brute expression, we can avoid having to examine our beliefs, defend them and possibly change them. We all value consistency in our basic beliefs and we don’t always want to take the trouble arguing for them or responding to arguments against them. If we are shielded from arguments in the media, then we don’t have to take these argument into account. And that’s relaxing. However, the result is polarization because the flip-side of the relaxation offered by the absence of arguments is the increasing alienation from people holding other beliefs: we are also shielded from the arguments these people have (or could have) for their own beliefs, and hence these beliefs start to seem strange, bizarre and not something we want to be involved with.
More on polarization here.
A Lynn English High School student [not in the image above] reprimanded for wearing a t-shirt which read “All the cool girls are lesbians,” set off a debate during Thursday’s School Committee meeting on the school dress code and how it is enforced….
Kennedy told committee members Thursday that she received a letter from a student who was asked by one of the vice principals to cover her t-shirt and never wear it again….
In the letter, the student said she was sitting in the cafeteria at lunch when a teacher told her to show Vice Principal Joseph O’Hagan her shirt. O’Hagan, she wrote, agreed with the teacher that the shirt was inappropriate. When she asked why, the student said she was told, “Because it’s political and offensive to some people.” …
English Principal Thomas Strangie … said a student can be made to cover up a shirt that is deemed disruptive, “and that (shirt) could have been disruptive. It was nothing against her.” (source, source)
The United States is far from the worst violator of human rights, but neither is it the Shining City on the Hill that many take it to be. See what you make if this:
- America, where people get into a frenzy about personal freedom when someone wants to limit the maximum size of soda cups, and yet consistently accept world record incarceration rates.
- America, where felons can more quickly recover their right to bear arms than their right to vote.
- America, where white people with a criminal record are more likely to get a callback after a job interview than black people without a criminal record.
- America, where the depiction of naked people making love is less a matter of free speech than the depiction of people killing each other.
- America, where the right to life of the unborn is more important than the right to life of the living.
- America, where the courts express themselves on issues such as the appropriate hotness of coffee but remain strangely silent about the extra-judicial execution or torture of U.S. citizens.
- America, the “land of opportunity”, has less social mobility than many of the so-called ”socialist” countries of Europe.
- America, where the Supreme Court has decided that anyone can be strip-searched upon arrest for any offence whatsoever – this is the same Supreme Court that doesn’t allow its proceedings to be televized.
And then remember that a large majority of countries is even worse than this. Have a nice day.
Taiwan National University (NTU) Department of Agricultural Economics professor Wu Pei-ing, aged 53, was handed a final sentence of 10 days in prison or a fine by the High Court on Thursday for calling a fellow professor “worthless.”
At 8am on March 3 last year, when Wu was speaking with department head Hsu Shih-hsun, fellow professor Jerome Geaun approached her and said he felt compelled to “severely protest” that she was speaking too loudly. He asked Wu to lower her voice.
Wu at first said “Keep out of matters that don’t concern you,” but Geaun insisted that she keep her voice down, prompting Wu to say: “Go report it to the police, to the Environmental Protection Administration (EPA) for noise pollution, OK?”
While Hsu attempted to mediate the dispute, Wu said to Geaun: “Who do you think you are? You’re a worthless nobody,” despite a previous warning from Geaun’s that her comments came very close to a personal insult.
A few days ago, we were treated, once again, to a typical sexist rant by the awful Rush Limbaugh. This time, it seems that he’s provoked some kind of boycott. Some advertisers and listeners are turning their backs to the radio host, voting with their feet and their wallets. In a sense, this is a typical libertarian response:
[V]iolating Rush’s First Amendment rights would require state action. Rush has not been jailed for his views, nor has anyone even whispered a suggestion to that effect. There have been no calls for his radio transmitter to be jammed. No one is even demanding he be fined, which might be possible under the FCC‘s arcane and arbitrary decency laws. Instead, what his critics are doing is exercising one of their own fundamental American rights, their right as consumers to frequent the businesses they choose. (source)
I agree that this right of consumers and advertisers to shop where they want and pay for what they want is an important one, although probably not as important as libertarians have it. I have no beef with that. What worries me more and what brings out libertarians’ flawed understanding of human rights is the peculiar opinion on free speech that is evident from the quote above. It’s an opinion that libertarians apply to all human rights, namely that violations of human rights only and always result from government actions. Actions by fellow citizens – such as boycotts of radio talk show hosts – can never, according to libertarianism, result in rights violations.
The problem with libertarians is that they take cases such as the one we’re discussing now – and which indeed do not involve violations of free speech – and then extrapolate this in order to argue that there are never any similar cases in which citizens’ actions do result in violations of free speech. In the case under review, Limbaugh’s freedom of speech is evidently secure: the government hasn’t intervened, fortunately, and the action of listeners and advertisers don’t make it harder or impossible for Limbaugh to express himself. No one’s freedom of speech presupposes other people’s duty to listen or a duty to support speech through advertising money. Limbaugh’s freedom of speech would be secure even if the boycott were large enough for him to lose his radio pulpit. People don’t need to be a talk show host in order to have freedom of speech.
However, in other cases, it is possible that non-governmental actions – actions by fellow citizens in other words – result in violations of one’s freedom of speech. Some examples: the heckler’s veto, the silencing of critics of Islam by way of threats of violence, the chilling effect of political correctness etc. The same is true for all other human rights: it’s not the government that engages in FGM, that flies planes into the WTC buildings, that attacks gay couples on the street etc.
The central libertarian teaching about human rights as expressed in the quote above (“violating Rush’s First Amendment rights would require state action”) is therefore an error of fact. The error is probably unavoidable given libertarianism’s focus on the evils of government. This is all the more regrettable given the fact that libertarianism is, in theory, a philosophical school that should be very friendly to human rights. (Robert Nozick, perhaps the most famous libertarian philosopher, starts his magnum opus with the words: “Individuals have rights, and there are things no person or group may do to them without violating their rights”).
My argument here may be lacking in nuance and may not do justice to one or other subtype of the admittedly very large and diverse family of libertarianisms. If so, please feel free to correct me in comments.
Residential picketing is a common form of protest. First you identify someone you don’t like – say an abortion doctor, a bank CEO or a pedophile. Then you find out where she lives, show up with a group of protesters at her home, and stage a long running protest just outside of it. Maybe your group shouts insults or curses every time she goes in or out. Maybe you stay at night as well.
The general rule is that you are allowed to do this. You’re in a public space and you can speak freely, even if your speech is insulting. However, this type of residential picketing can in some cases go so far as to violate the rights of the person who is picketed. Her freedom of movement, her right to privacy and her freedom of residence may suffer. She may feel intimidated, a feeling that forces her to stay at home or away from home. See may feel under siege and no longer safe in the privacy of her home. She may even believe that it’s necessary to move.
The protesters should accept some types of limitation of residential picketing rights when this picketing violates other rights. For example, if they are forced to respect a buffer zone around the residence, then they can still disseminate their message. Their alternatives are much easier and less costly than the alternatives for the person who is picketed. However, they know full well that their message will have a much stronger media impact if it produces some controversy, and harassing someone by keeping her a virtual hostage under siege in her own house is bound to be controversial. Hence they’re not likely to scale down the protest and respect a buffer zone.
The point is that free speech rights are not automatically prior or superior to other rights, especially not if those speech rights are used in such a way that they must violate other rights and that alternative uses are rejected. There’s no hierarchy among human rights and all rights are equivalent. That means that when rights are in conflict with each other, the decision to favor one or the other must take into account the respective costs to one or the other. In this case, the cost to privacy, freedom of movement etc. of allowing free speech is clearly higher than the cost we impose on free speech when we want to protect privacy, movement and residence rights. The protesters can still express themselves outside a buffer zone and in myriad other ways. The person who is picketed can also move to another house, but that is much more costly and possibly futile (given a certain level of persistence among the protesters). The right to free speech does not include a right to maximum impact speech.
Richmore Mashinga Jazi, a self-employed carpenter, was watching live coverage of Mugabe’s birthday bash last Friday while drinking with friends when he allegedly suggested that the 88-year-old president had sought help to blow up the balloons. …
“Who helped Mugabe blow up his birthday balloons, does he still have the energy?” is the statement that got Mugabe’s loyalists mad, resulting in the arrest of Jazi.
Jazi is now before the Mutare magistrates court on allegations of undermining the authority of the President. …
Mutare prosecutor Truman Joma … told the court that Jazi made the statement knowing that there was real risk or possibility that the statement was false and that it could cause hatred or contempt of the person of the President.
He alleged that Jazi was mocking and insulting the President by referring to his age and health. Trouble for Jazi started when he asked where prominent Mutare resident Penjeni Gwinyai, who had just entered into the bar, was coming from.
Gwinyai, the state alleged, informed Jazi that he had been at Sakubva stadium to witness Mugabe blow up his birthday balloons, prompting Jazi to query if Mugabe still had the energy to do so. Gwinyai informed the police leading to Jazi’s arrest. (source)
The US Supreme Court’s decision in Citizens United correctly emphasized the importance of free speech in a democracy. (There’s a thorough discussion of this point here). Free speech serves to expose government corruption and is the means to hold governments accountable to the people. The people also need free speech to deliberate on possible policies and on the respective merits of political parties, candidates and incumbents. The latter in turn need free speech to make their point and attract support and members. And, finally, political assembly, protest and organization require speech.
So it’s fair to say that no democracy can function without free speech. It’s also important, as noted by the Court, that this speech right should not be limited to individuals. Organizations, such as corporations, labor unions, pressure groups etc. should also enjoy this right. They are, after, all, collections of individuals who may want to exercise their free speech rights in common.
However, this is precisely the main problem in the Court’s decision: politics is already heavily dependent on corporate funding. Giving corporations an unlimited right to marshal their substantive resources for corporate political speech would only increase the influence of money on politics. Enormous amounts of money are already necessary in order to win elections in our present-day democracies, especially in the U.S. Candidates have no choice but to accept contributions from those members of society who have the money, and those are generally private corporations. There’s a persistent feeling that candidates can be “bought” and that, as a result of contributions, the interests of large donors receive disproportionate government attention. This may or may not be corruption, but it flies in the face of democratic ideals that tell us that it’s the people who rule, not large donors.
The Citizens United decision seems to make this situation worse by stating that corporations have an unlimited right to engage in political speech and that they can, for example, fund political commercials endorsing or attacking a candidate. As such, this right should not be controversial since it’s part of the right to free speech. However, many people fear, rightly in my opinion, that corporate speech, because it can use disproportionate financial resources, will drown out the voices of everyday citizens and give corporations a role that’s even more important than the one they have already managed to secure for themselves through campaign contributions. Hence some form of limit on corporate spending should be possible. And this applies to both campaign contributions and corporate political advocacy in favor or against certain candidates. Corporations would keep their speech rights, of course, but we would simply limit the amounts of money they could spend on their political speech. In fact, rather than a limitation of speech as such, this is merely a limitation of the amplification of speech.
Now, it’s in the nature of speech in general that some voices drown out others. Some people have more interesting things to say, some are not interested in saying anything, some are better at speaking or are better educated, and some have more resources or time to speak. However, we do generally try to equalize speech in some way, even in ordinary life. We have rules on etiquette and politeness. We think it’s better if people speak in turns, for instance. We don’t allow the best speakers to monopolize everyday discourse. Also, we subsidize education, and one of the reasons why we do that is to give people the ability to speak their minds.
We usually try to do something similar in politics. Democracy is the ideal of the rule of the people. That means that everyone’s influence on politics should be more or less equal. It’s useless to adopt a principle like “one man one vote” if afterwards we allow asymmetrical speech power to dramatically increase the political weight of one vote over another. We know that this ideal of equal influence is impossible to attain, and yet we try to make influence as equal as we can. Limits on campaign spending and financing are part of that effort: a candidate should not be allowed to dramatically outspend other candidates because that would give him or her a disproportionate influence over the voting public. For the same reason, donors should not be allowed to contribute excessive amounts to a single candidate, because then that candidate would be able to outspend other candidates. Now, why not limit corporate advocacy spending as well?
Of course, campaign contributions to candidates as well as spending on advocacy in favor of candidates are clearly acts of political speech, and therefore protected by default. By donating to a candidate or a party, or by funding or producing political advocacy, you state your political preferences. And the fact that this “you” is not, in our case, a private person but a corporation shouldn’t change anything. A corporation is a collection of private persons (owners, directors or shareholders) and they have a right to voice their opinions collectively, using their collective resources, just like other collectives.
However, all this doesn’t mean that we’re talking necessarily about an unlimited right. If corporations or other entities with a lot of resources (wealthy individuals, labor unions etc.) are allowed to donate without limits or to engage in unlimited advocacy, it’s likely that they thereby “buy” a disproportionate share of influence. And this, ultimately and after a certain threshold is passed, destroys democracy. The beneficiaries of their donations or advocacy will receive more attention during the election campaigns, and will in turn give more attention to the interests of their backers once they are elected. During the campaign, it will seem like the beneficiaries of excessive contribution or advocacy have the better arguments because those arguments receive more attention. Simply the fact that a story is “out there” and is repeated a sufficient number of times gives it some plausibility and popularity. There would be no commercial publicity or advertising if this weren’t true. Flooding the airwaves works for elections as well as sales.
However, are we not infantilizing the public with this kind of argument? Is a voter no more than an empty vessels waiting to be filled by those political messages that are best able to reach him? Or can they see through it all and make up their own minds irrespective of what they hear and see? If they see that a candidate receives large amounts of money from a particular company, isn’t that reason enough to vote for the other candidate? The truth is likely to be somewhere in between. People are neither empty vessels for donors, nor objective arbitrators of political truth. And the fact that they can be partly influenced should be reason enough to restrict the political speech rights of those with large resources – or better their right to amplify their political speech. It’s not as if they can’t make their point. It’s just that they shouldn’t be allowed to push their point. Just like we don’t allow a heckler to silence others, or a bully to just keep on talking because he never learned the rules of politeness.
Here are some data on rules applying to the financing of elections in a selection of countries:
(source, personally I think the inclusion of the CPI here is arbitrary and meaningless)
- Radhika Balakrishnan: Corporate Control of Our Democracy: Citizens United v. Federal Election Commission (huffingtonpost.com)
- Citizens United – that dreaded Supreme Court case – empowered unions to “flush $10 million of their members’ money down the toiled on a pointless exercise.” (althouse.blogspot.com)
While you might think of masturbation as a sort of last refuge for the incarcerated — a truly inalienable freedom, given the happy proximity of the sex organs — that is not the case. In fact, a number of state prisons regard jerking off as a rule infraction. … [Such restrictions are “well-entrenched” in the correctional environment [in the U.S.]. (source)
And probably elsewhere as well. The rules apply even when there’s no indecent exposure. In the 19th century, some U.S. prison officials even
chloroformed masturbators and implanted metal rings through their foreskins. (source)
These days, prison officials often turn a blind eye and don’t enforce the rules. But sometimes
prisoners do … get in trouble for engaging in autoerotic behavior. Early on the morning of May 16, 2000, in South Carolina’s Lieber Correctional Institution, Officer Patricia Sinkler saw inmate Freddie Williams “in the front entrance of the shower, curtains open, with his left hand propped up against the wall, turned sideways, making back and forth movements with his right hand on his penis,” according to a court document. Sinkler filed a disciplinary report recommending that Williams be charged with sexual misconduct, and he was brought before a hearing officer and convicted. Williams appealed multiple times, insisting he had not intentionally exposed himself; the officer had simply walked past when he was going at it. He lost and had to relinquish 240 good-time credits.
A similar case occurred in Florida in 2006: Broward County inmate Terry Lee Alexander was sitting alone on his bunk masturbating when a female deputy who was monitoring him from a central control room more than 100 feet away took exception to Alexander’s “blatant” exertions and wrote him up. Alexander was charged and convicted of exposure, with the jury determining that a cell is “a limited access public place.” The same deputy had also filed reports on seven other locked-up masturbators. When Alexander’s attorney asked the deputy in court if she had considered calling a SWAT team to halt his client’s activity, she replied, “I wish I had.” (source)
Whether all this means that prisoners – or the population in general – should have a legal right to masturbate, is another matter. Probably not I guess. Not every prohibition on government intrusion should necessarily be translated into a right. The right to privacy should be sufficient to protect the act of masturbation and a specific right to masturbate is superfluous. And yes, inmates shouldn’t lose their right to privacy just because they’re in prison, even if some limitations of that right are inevitable in their case.
Especially for the general population, a right to masturbate is utterly superfluous, since people normally enjoy enough privacy beyond the prison walls in order to be able to masturbate without government intrusion. Prisoners, however, may not always be granted enough privacy, as the cases cited above make clear. But instead of claiming a right to masturbate, inmates should insist on their right to privacy.
What about the right to be able to consume pornography? Again either for prisoners only or for the general population. For the latter, this right is covered by free speech. For the former, such a right would entail the additional right to be given pornography, as prisoners can’t go about procuring it themselves in the free speech marketplace. A prisoners’ right to pornography is not covered by free speech. However, I doubt it would be a good thing to have it. It may be good policy if prisons make porn available, but that doesn’t mean prisoners have a right to be given porn. Which doesn’t mean that prison officials have a right to take pornography away from prisoners once they have it. People don’t lose all their rights when they are incarcerated. And that includes private property.
In any case, taking away prisoners’ porn or their right to masturbate is likely to be counterproductive, as it will create unrest and lead to an increasing number of sexual predation cases among prisoners.
Any attempt to measure the degree of democracy in a country should take into account the fact that democracy is something multidimensional. It won’t suffice to measure elections, not even the different aspects of elections such as frequency, participation, fairness, transparency etc. It takes more than fair and inclusive elections to have a democracy. Of course, the theoretical ideal of democracy is a controversial notion, so we won’t be able to agree on all the necessary dimensions or elements of a true democracy. Still, you can’t escape this problem if you want to build a measurement system: measuring something means deciding which parts of it are worth measuring.
You would also do best to take a maximalist approach: leaving out too many characteristics would allow many or even all countries to qualify as fully democratic and would make it impossible to differentiate between the different levels or the different quality of democracy across countries. A measurement system is useful precisely because it offers distinctions and detailed rankings and because it makes it possible to determine the distance to an ideal, whatever the nature of the ideal. Obviously, a maximalist approach is by definition more controversial than a minimal one. Everyone agrees that you can’t have a democracy without elections (or, better, without voting more generally). Whether strong free speech rights and an independent judiciary are necessary is less clear. And the same is true for other potential attributes of democracy.
Once you’ve determined what you believe are necessary attributes you can start to measure the extent at which they are present in different countries. Hence, your measurement will look like a set of sliding scales:
With all the markers on the right side in the case of a non-existing ideal democracy, and all the markers on the left side in the unfortunately very real case of total absence of democracy.
(The aggregation of these scales into a total country score is another matter that I’ve discussed elsewhere).
Some candidates of attributes are:
- Does a country include more or less people in the right to have a democratic say? How high is the voting age? Are criminals excluded from the vote, even after they have served their sentence? Are immigrants without citizenship excluded? Are there conditions attached to the right to vote (such as property, education, gender etc.)?
- Does a country include more or less topics in the right to a democratic say? Are voters not allowed to have a say about the affairs of the military, or about policies that have an impact on the rights of minorities? Does the judiciary have a right to judicial review of democratically approved laws?
- Does a country include more or less positions in the right to a democratic say? Can voters elect the president, judges, prosecutors, mayors, etc., or only parliamentarians? Can they elect local office holders? Does a country have a federalist structure with important powers at the local or state level?
- Does a country impose qualified majorities for certain topics or positions? Do voters have to approve certain measures with a two-thirds supermajority?
- Does a country provide more or less ways to express a democratic say? Can voters only elect officials or can they also vote on issues in referenda?
- Does a country impose more or less restrictions on the formation of a democratic say? Are free speech rights and assembly and association rights respected?
- Does a country accept more or less imbalances of power in the formation of a democratic say? Are there campaign financing rules?
- Does a country show more or less respect for the expression of a democratic say? How much corruption is there? Is the judiciary independent?
A “more” score on any of these attributes will push up the total “democracy score” for a country. At least it seems so, if not for the conclusion that all these complications in the measurement system are still not enough. We need to go further and add additional dimensions. For example, one can argue that we shouldn’t define democracy solely on the basis of the right to a democratic say, not even if we render this right as complex as we did above. A democracy should, ideally, also be a stable form of government, and allowing people to decide about the fundamental rights of minorities is an expression of the right to a democratic say but it is not in the long term interest of democracy. Those minorities will ultimately rebel against this tyranny of the majority and cause havoc for everyone.
More posts in this series are here.
Another way to frame the question in the title of this post is: what falls under the header of “expression”, and what not? Only if something is justifiably called expression can it enjoy the protection of the right to free expression. I’ll argue below that “expression” covers more actions than the ones we intuitively classify under that concept. Hence, freedom of expression protects more than we think it protects.
And yet, it’s not because something is expression that it automatically enjoys protection. Some actions which we readily classify as “expression” are not and should not be protected by freedom of speech. In other words, freedom of expression covers more and at the same time less than we think.
The obvious type of action that is covered by the right to free speech, and the type that represents the large majority of expressive actions, is speaking and writing in day-to-day language. Such actions enjoy a prima facie protection by the right to free speech. Nothing special about that. However, the right also applies to other expressive actions, ones that do not involve speech or writing in ordinary language:
- some non-linguistic means of expression, such as visual art
- some forms of protest such as the burning of a draft card, a flag or a cross
- the display of symbols (e.g. a swastika)
These types of expressive actions can also claim protection in certain circumstances.
So, some things which are not readily identified as speech are nevertheless considered as speech acts and receive some form of protection from the right to free speech.
Free speech therefore covers at the same time more and less than a cursory examination would conclude. However, the broad definition of speech that expands speech beyond mere linguistic acts does create a problem. Non-linguistic expressive actions are hard to delineate. All actions can include an expressive component, and it’s often difficult to determine when an agent intended to convey a message through her actions. So the concept can become too broad, and we risk, as a result, that freedom of speech covers all actions and becomes indistinguishable from freedom tout court. That can’t be the purpose.
Notwithstanding this problem, it’s obvious that not all linguistic or non-linguistic expressive actions should enjoy protection by the right to free speech. Terrorism is certainly an expressive action, but no one would claim that it should be protected by freedom of speech.
Beside the “freedom of what?” question, there’s another interesting one: “freedom from what?” Usually, freedom of expression, like many other type of freedom, is believed to be primarily or exclusively a freedom from government interference with speech. While that’s an important dimension of freedom, it’s not the only one. Rights have a horizontal as well as a vertical dimension: citizens can also violate each others rights, and hence freedom of expression for example is also a freedom from interference by fellow-citizens. More on the dimensions of human rights is here. More on free speech here.
President Aleksandr Lukashenko of Belarus … drafted a law that would prohibit a “joint mass presence of citizens in a public place that has been chosen beforehand, including an outdoor space, and at a scheduled time for the purpose of a form of action or inaction that has been planned beforehand and is a form of public expression of the public or political sentiments or protest.” The measure, which in the words of the New York Times “prohibit[ed] people from standing together and doing nothing,” was proposed in response to a series of weekly protests that had begun a month earlier, whereby citizens gathered in public parks or on street corners each Wednesday night and did nothing more than clap their hands or synchronize their cell phones to ring at an appointed time. … There was nothing overtly political about these protests. … There was no mention of the name “Lukashenko.” Not even the word “freedom,” which has gained a new global currency in the wake of the Arab upheavals, crossed anyone’s lips. (source)
The image seems to have been inspired by this one:
More absurd human rights violations here.
An interesting story in the press some time ago:
A former nurse from Faribault, Minn., was convicted of two felonies Tuesday when a judge ruled he had used “repeated and relentless” tactics during Internet chats that coaxed two people to kill themselves.
Rice County District Judge Thomas Neuville found that William Melchert-Dinkel, 48, “imminently incited” the suicides of Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Ontario. Drybrough, 32, hanged himself in 2005, and Kajouji, 18, jumped into a frozen river in 2008.
In a 42-page ruling that found Melchert-Dinkel guilty of two counts of felony advising and encouraging suicide, Neuville wrote that it was particularly disturbing that Melchert-Dinkel, posing as a young, suicidal, female nurse, tried to persuade the victims to hang themselves while he watched via webcam….
Neuville, in rejecting the free-speech defense, noted that inciting people to commit suicide is considered “Lethal Advocacy,” which isn’t protected by the First Amendment because it goes against the government’s compelling interest in protecting the lives of vulnerable citizens. (source, source)
I guess that’s correct, even though the case doesn’t really fit with any of the commonly accepted exceptions to free speech rights. We’re not dealing here with incitement to murder or a death threat – standard exceptions to free speech, even in the U.S. And neither is it speech that incites illegal activity – another accepted exception. Suicide isn’t murder and isn’t illegal (anymore). Abstract and general advocacy of crime and violence is – or should be – protected speech, but not the advocacy or incitement of specific and imminent crime or violence if this advocacy or incitement helps to produce the crime or violence. If speech intends to produce specific illegal or violent actions, and if, as a result of this speech, these actions are imminent and likely, then we have a good reason to limit freedom of speech. Examples of such speech:
- solicitation of a murder
- some types of death threat
- cheering on a criminal
- speech that constitutes aiding and abetting of criminal conduct etc.
None of these forms of speech should be protected, and laws making them illegal are perfectly OK. On the other hand, claiming that all politicians deserve to die or that people shouldn’t pay their taxes are, in most cases, forms of protected speech because they probably do not incite or help to bring about imminent lawless activity.
The problem is that none of this is applicable here. Suicide isn’t illegal, and neither is it violence as we normally understand the word. So, the commonly accepted exception to free speech rights that I just cited can’t possibly justify the conviction of Melchert-Dinkel. He did of course advocate, incite and cheer on his victims, and his advocacy, incitement and cheering probably helped to produce their suicides. But a suicide is not a crime or an act of violence. At least not as such. One could argue that the encouragement of a suicidal person should be viewed as a form of murder. And if that statement goes too far for you, you may want to consider the fact that causing someone else’s death is in general a crime, whichever way you do it. Moreover, if the victims in this case were suffering from depression or a mental illness, the state has a duty to provide healthcare, and allowing someone else to worsen their depression or illness to the point that they kill themselves is not consistent with this duty.
So, while the encouragement of suicide in general, the teaching the methods of suicide or the claim that non-suicidal people should go and kill themselves (“you don’t deserve to live”, “why don’t you just go and kill yourself”) are all forms of protected speech, the same is not the case for speech that encourages specific suicidal people to kill themselves.
As a bonus, I can’t not post this image of what some have called the most beautiful suicide (a description that is in no way meant to glorify or encourage suicide):
On May 1, 1947, Evelyn McHale jumped to her death from the observation deck of the Empire State Building, landing on a car. Here is a close-up of her face:
Read the whole story 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:
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.
Another 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).
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.
Some human rights make themselves impossible some of the time. Take the right to free speech: some forms of the exercise of this right make it difficult if not impossible for others to exercise their version of the right. Free speech for some can silence others. That may sound strange because it’s usually the violation of the right to free speech that silences.
I’m not talking about obvious cases such as the heckler’s veto because those are not really interesting. Below are some more contentious examples.
A lot of pornography depicts women as inferior and consequently contributes to the continued subordination of women. Both men and women can come to see women as subordinate objects of desire, unable or at least unlikely to speak, complain, withhold consent or resist. Pornography is then taken to provide factually accurate and morally correct information about women as silent and submissive objects of desire and sexual use. In the case of women, this process may silence them, and not only with regard to sexual consent. It’s not just that women’s speech fails to persuade or that men fail to listen (“when a woman says ‘no’ she doesn’t mean it”). It’s worse because women may even fail to attempt to persuade in the first place: they learn that their silence is the right attitude. Pornography deprives women of the capacity to speak.
Politically correct talk
Some of us use our right to free speech as a means to propagate the rule that certain words shouldn’t be said or certain topics shouldn’t be discussed because these words and topics tend to cement prejudice and to have self-fulfilling effects. Others may decide to remain silent as a reaction to this rule, because of shame, because they fear professional or reputational consequences, or because they genuinely believe that speaking in a certain manner or about a certain topic does have negative consequences for minority groups. Hence, political correctness silences certain perspectives, but probably not in the same deep manner as pornography.
Powerful voices, by which I mean voices backed up by lots of money or influence, can monopolize discourse and drown out competing voices. When certain points of view are pushed by well-funded think tanks and lobbyists or by unbalanced media outlets, then less competitive or powerful perspectives are silenced.
When members of minority groups are consistently harassed by hateful voices, when crosses are burned in their front yards, when they’re told not to go to certain places or relate to certain persons, then they may decide that it isn’t wise to protest. They may even internalize the discourse about their inferiority, in which case they are similar to women who have internalized the pornographic female ideal.
These 4 examples of the right to free speech eating itself show that this right – and perhaps other rights as well – should include the right to conditions favorable or necessary to its exercise. When combating restrictions on free speech, we should not only include explicit restrictions but also restrictions of its preconditions. Free speech doesn’t only get hard when governments or fellow-citizens overtly interfere, censor or persecute you for speaking your mind. In free societies you can supposedly say what you want, but how can you say what you want when the “you” in question is shaped and deformed by forces operating under the surface and is turned into a subordinate object that doesn’t even think of speaking? Or, somewhat less extremely, when fear of consequences forces you to remain silent or when a lack of balance in public discourse makes it impossible for you to be heard?
This last point raises a potential confusion: the right to free speech doesn’t include a right to be heard or to be listened to; the duty to respect free speech doesn’t include the duty to listen. That would go too far, even if we admit that free speech is useless without anyone listening. There’s a difference between a duty to listen and a duty not to silence. The latter duty may imply that we need to impose some restrictions on some forms of speech. If pornography or hate speech silences women or minorities, then the right to free speech of women and minorities may require restrictions on the right to free speech of pornographers and haters. Paradoxically, restricting speech can enhance speech.
(source, click on the image if the animation doesn’t start)
It’s easy to forget in our internet-age when printing may be on its way out, but Johannes Gutenberg’s invention of the movable type printing press in the middle of the 15th century started a revolution in freedom of speech. Access to and dissemination of information was no longer the privilege of an elite.
From a single point of origin in Mainz in Germany, printing spread within several decades to hundreds of cities in many European countries. By 1500, printing presses in operation throughout Western Europe had already produced more than twenty million volumes. In the 16th century, with presses spreading further afield, their output rose tenfold to an estimated 150 to 200 million copies. It’s impossible to tell how many copies there are in the world today – some say more than 3 billion. According to Google Books, more than 130.000.000 books have been published.
The printing revolution not only promoted freedom of speech but also boosted the democratization of knowledge, undermined the power of political and religious authorities, improved education, and laid the material basis for the modern knowledge-based economy and for rapid improvements in prosperity. The latter effect was already evident at the start of the printing revolution:
economic growth was higher by as much as 60 percentage points in cities that adopted the technology. (source)
A similar map that looks at the spread of printing across Europe in the 1400s (the animation below shows the number and location of printed works by year):
More human rights maps here.
Lots of authoritarian regimes impose restrictions on the types of information their citizens can access or publish on the internet. Some countries systematically limit the available websites, and others only do so when their citizens use the internet to organize protest actions (as was recently the case in Iran, Tunisia and Egypt).
China is often criticized for its large-scale and systematic filtering (dubbed the Great Firewall of China), but the phenomenon is relatively widespread. Here are some maps showing the extent of internet censorship:
(source, where you can also find more detailed information)
And this is the index of Reporters Without Borders:
And the 2011 version:
- In Egypt: Access denied – Washington Post (news.google.com)
- Online Censorship Grows in 2010, Showing Power of Netizens (pbs.org)
- Is Internet access a human right? (technolog.msnbc.msn.com)
Comedian Jonathan May-Bowles was yesterday sentenced to six weeks in jail for throwing a shaving-foam pie at Rupert Murdoch whilst the media tycoon was giving evidence at the Commons Culture, Media and Sport Committee. Better known as “Jonnie Marbles”, May-Bowles was also ordered to pay £250 costs and a £15 victim fine after pleading guilty to one count of common assault and another count of causing harassment, alarm or distress … Of those six weeks, Jonnie will serve three. …
Jonnie’s sentence was handed down by the same judge who gave policeman Marcus Ballard 150 hours unpaid work for pushing a teenager through a shop window. She also gave James Allen QC a 12-month supervision for beating his wife over an uncooked dinner. She let off TSG Sergeant Delroy Smellie over hitting G20 protester Nicola Fisher across the face and whacking her in the legs with a baton.
As argued by Jonnie’s lawyer in court “slapstick and pie throwing is a recognised form of protest.” No injury was caused — nor was there any intent to cause it — and there was limited damage to the suit. (source)
A recent US Supreme Court ruling invalidated a California law that banned the sale of certain violent video games to children on the grounds that the law violated freedom of speech. The controversy is an old one, and goes roughly as follows. Proponents of laws banning violent media – especially the sale of violent media to children – point to different studies arguing that violence in media promotes violence in real life and that children in particular are at risk of becoming violent adults. Since people have a right to be protected against violence and children have a right not to suffer the psychological harm that purportedly comes from the consumption of violent games, we have here a case of rights conflicting with each other: on the one hand the free speech rights of the makers and sellers of games, and on the other hand the security rights of the potential victims of violent behavior provoked by the consumption of violent games, as well as the mental health rights of the consumers of those games. Hence, one of those rights should give way to the other rights.
Proponents of restrictions of free speech in this case argue that a prohibition of the sale of violent games to children is the best option since the speech value of a violent video game is small, and since producers of such games still have the freedom of “artistic expression” because they can still sell to adults. The cost of limiting free speech in this case is small compared to the gains in terms of physical security and psychological health. And there are precedents such as movie ratings.
The opponents of limitations on free speech can also point to studies showing the absence of an effect on real life violence or even the opposite effect – the so-called “pressure valve theory“. They can also use the slippery slope argument and claim that the sale of many classical works of fiction should then also be prohibited on the same grounds, since they also contain scenes of violence.
The US Supreme court sided with the opponents, unsurprisingly given the near absolutism of free speech protection in the US (only a couple of exceptions to free speech are recognized in US jurisprudence, and expression of violence isn’t one of them).
While I personally find US free speech jurisprudence difficult to accept and generally hypocritical – why can obscene material be censored but not violent material? – I think in this case the SCOTUS decision is probably right. The psychological evidence does not, as far as I can tell, clearly show an effect of media violence on real life violence, and even if there is a small effect, a general prohibition on violence in media probably goes too far, as does a general prohibition on the sale of media containing violence. Even a prohibition on the sale of such material to children is probably too much, even given the fact that children are more impressionable. Violence has many causes, and the “pressure valve” theory has some intuitive appeal (also in the case of pornography by the way). A rating system, allowing parents to do their job, is probably better.
If speech can cause joy, tears and pain, what distinguishes it from action? The singling out of expression as a category worthy of special — even categorical — protection makes sense only if the work speech does is different from the work done by physical acts, if for example the effects of speech are limited to changing minds or increasing the store of information or enlarging the number of viewpoints in the marketplace of ideas, and do not include bodily harms.
This is of course the traditional view as encapsulated in the familiar proverb “sticks and stones will break your bones, but names will never hurt you.” The problem with this ditty is that it is false; names, libels, lies, defamatory statements and harangues do hurt, and moreover the hurt they inflict — extending sometime to measurable physical distress — is often what those who utter them are most invested in. Stanley Fish (source)
The Snyder v Phelps case, in which religious lunatics were initially convicted for using hate speech to disturb a soldier’s funeral (a conviction subsequently rendered void by the Supreme Court), was the background for this remark.
My view is that speech is indeed different from other actions and deserves special protection for some very good reasons (the work that speech does is indeed different), but that it’s still a type of action, and one that can cause harm just as other types of action. Speech can harm the rights of others – it can harm their privacy, their income, their ability to live in certain places etc. If that’s the case, then there’s no good reason to automatically prioritize protection for speech rights over all other rights. That said, speech protection is important, and not any type of harm – such as insults or the shock caused by sexual images – is a good reason to forbid speech.
Here are some interesting numbers on the way Americans think about certain human rights issues:
Assisted suicide is, unfortunately, still condemned by a small majority. Official homicide, on the contrary, is believed to be a good thing according to a large majority. (However, it has been shown that approval rates drop sharply when the alternative to capital punishment is life without parole). Pornography, which according to some is a free speech issue, is rejected by a two-thirds majority. And abortion, according to some a violation of the right to life, is condemned by a small majority. Homosexuality is now accepted by a small majority.
More human rights facts here.
This is true Liberty when free born men
Having to advise the public may speak free,
Which he who can, and will, deserves high praise,
Who neither can nor will, may hold his peace;
What can be juster in a State than this?
More human rights poems here.
The secret ballot has become so common in modern democracies that it’s hardly ever questioned. And yet, there are good reasons why a democratic vote should be public. So, let’s go over the pros and cons of the secret ballot, and see where that gets us.
Advantages of the secret ballot
- The desire to avoid voter intimidation or bribery is the obvious and most commonly cited justification of the secrecy of the ballot. If people in power know how an individual votes, then this individual may be pressured to vote in a certain way. And “people in power” should be understood in a broad sense, including employers, dominant husbands etc. This justification is based on certain key features of a democracy, namely equal influence, one-man-one-vote etc. The risk of coercion is present even in societies where the general level of coercion is low and democratic values are widely shared. And it’s often the least advantaged who will be coerced, because they have most to gain from changing their vote to please someone else, and most to lose from not doing so.
- The risk of pressure can also be present in other, more subtle forms. For example, it has been shown that people are afraid to publicly oppose authority figures. Tests have shown that when an authority figure speaks first, there’s less dissent afterwards. An open ballot can lead to forced conformity.
Disadvantages of the secret ballot
- Implicit in the doctrine of the secret ballot is the assumption that the electoral process is no more than the aggregation of individual preferences which have been fixed previously and independently of the electoral process. However, the voting process is, ideally, also formative of preferences, and not merely an arithmetic process based on fixed preferences. That means that people deliberate and discuss about the best way to vote, about the best candidates and policies. But that also means that people have to present their positions and preferences in public. Maybe the ultimate vote can still be secret, but the initial voting intention can’t be if we want democracy to be a lively debate. But if the voting intention can be public, why not the actual vote?
- An open ballot allows representatives to know exactly whom they are representing. One of the advantages of this knowledge is that it allows for some efficiency gains. Representatives know who has to be convinced. Those efficiency gains should improve the electoral process.
- When you vote in an election for representatives or in a referendum, this vote has real consequences. Taken together with the votes of your fellow citizens, your vote is likely to change the lives of a number of people, and sometimes change these lives dramatically. Moreover, those people are likely to be minorities, and hence relatively powerless. It’s therefore important that voters are accountable to their fellow citizens and that they explain and justify the reasons they have for voting in a certain way. This horizontal accountability is incompatible with the secret ballot.
- Why should we have secret ballots for voters and at the same time open votes in parliament, as is usually the case? After all, the justifications for a secret ballot for voters also apply to representatives. They also may be subject to pressure when it’s known how they vote. Maybe to a lesser extent than some parts of the electorate, since they tend to be wealthy and generally powerful, but still. Representatives are less numerous, and hence it’s easier and more effective to use pressure in order to manipulate a vote. Also, the public nature of representatives’ positions makes them vulnerable to specific kinds of pressure that can’t be applied to ordinary citizens (e.g. they may be blackmailed for indecent private behavior and thereby pressured to vote in a certain way). Of course, representative bodies are different from electorates, and therefore not entirely comparable. For example, it’s hard to see how a representative body can be accountable to the electorate when it votes in secret. Voters have to know what the individual representatives have accomplished, or not, so that they can “throw the bums out” at the next election if necessary. Also, this threat of non-reelection can pressure the representatives to act in ways desired by the electorate. So, pressure – at least some kind of pressure – is part and parcel of the representative process, whereas it’s incompatible with a popular vote. However, even if a vote by representatives isn’t entirely comparable to a vote by the people, it still is somewhat comparable, and people arguing for a secret ballot in a general election will have to explain why their arguments don’t also apply to votes in parliament.
- Open ballots, both in representative bodies and in general, force people to restrict themselves to preferences and arguments that they can justify to others. If you vote in a certain way, and are seen to be voting in a certain way, people will ask you why. And if you’re pressured to answer this question and to justify your vote (or voting intention), it’s a lot more difficult to be motivated, or to be seen to be motivated by self-interest only. Hence, the open ballot will make voters more sensitive to the general interest, which is a good thing. Also, this public justification tends to improve the quality of preferences, since people have to think about them, argue about them with others etc. That’s the logic of the marketplace of ideas.
- And, finally, open ballots make electoral fraud a lot more difficult, if not impossible.
Obviously, not all of these advantages and disadvantages have the same importance, and they don’t make it instantly clear whether a secret or an open ballot should be preferred in principle. Much depends on the specific circumstances. For example, in a country with a lot of economic inequality and gender inequality, the case for a secret ballot for voters is relatively strong. In general, a mixed system is probably best. However, we don’t have such a mixed system at the moment. Most modern democracies strongly favor secret ballots, and seem to ignore the real problems resulting from such a system. I believe some more attention should be given to these problems and to possible solutions, which obviously doesn’t mean that we should go to the other extreme and deny people’s right to keep their opinions to themselves if they so wish. There can’t be a duty of free speech.
Well, it depends, as they say. “Both” is of course the only correct answer. If you’re an optimist, you would say that:
- Social media make it easier for people to mobilize and coordinate their activities in the event of anti-authoritarian protests; to publish alerts in case of police attacks etc. They are a useful tool in strengthening resolve and confidence, given the fact that people will only turn up at potentially dangerous protest marches when they feel confident that a very large group will turn up (see here).
- Free speech is of course greatly enhanced by the internet, including the right to information (the passive side of free speech).
- The internet improves the marketplace of ideas; see here.
On the other hand, if you’re a pessimist, you would say that:
- The internet and social media allow governments to monitor dissidents. For example, an authoritarian government can track dissident groups through Facebook profiles and friend networks, through Twitter communications and email etc.
- Those governments can also use the internet to distribute propaganda, while stifling dissenting voices (they have the hardware, the software and the access to providers necessary to censor the internet).
- Terrorist groups also have been successful users of the internet, particularly through video messages and videotaped atrocities.
- There are the obvious privacy concerns. Etc.
The question therefore isn’t “good v. bad” but how to promote the good effects while minimizing the bad ones. In any case, internet euphoria about “twitter revolutions” and such seems very simplistic.
(source, click image to enlarge)
I’ve often invoked the metaphor of the marketplace of ideas to justify the right to free speech. (See these older posts). I think it’s useful to spell out in some more detail what the metaphor means, how far it goes and how it can bolster the right to free speech.
The point is this: ideas that can get themselves accepted in a competitive market of ideas will tend to be of better quality than other ideas. The marketplace of ideas therefore improves the quality of our ideas and our thinking. If different ideas are presented in an “ideas-market”, and if that market is populated by a maximum number of free agents expressing themselves freely, then those competing ideas will be exposed to a maximum number of supporting and dissenting arguments, and the balance of arguments in favor of or against an idea will be compared to the same balance for counter-ideas. The idea with the best balance will “survive”, because alternative ideas will be seen as comparatively defective, given the fact that the arguments in favor of them are weaker or the arguments against them are stronger.
It’s crucial that there is mass participation in the argumentation and deliberation going on in this market, since only mass participation will allow for the multiplication of possible arguments and alternative ideas. Hence, it’s also crucial that there’s a right to free speech and that everyone (or at least a large number of people) has and effectively exercises this right. This mass participation of free and expressive agents will improve the quality of ideas and of their supportive arguments even before the ideas reach the market: people who know that their ideas will meet probing and massive criticism will prepare themselves for this criticism, and this preparation means that they will preemptively develop supportive arguments and undermine opposing arguments. Hence, these ideas may even change and improve before they reach the market.
Exposing ideas to the test of the market doesn’t mean telling only your friends or your countrymen about them. Ideally, the market includes the whole of humanity; people who are close to you may share your biases and hence may not see the weakness of certain arguments or may not come up with the killer counter-argument. Another metaphor that can make this point somewhat clearer is the metaphor of perspectives: if you only look at a square from one side (or from one perspective) because no one told you that there’s another side or because in your group or culture it’s not common to suppose that there’s another side, you may not come to see that the square is actually a cube.
Without this massive and global participation of free speakers, many valuable points of view or perspectives will not be made public, and many valuable objections and counter-arguments will not be known to someone defending a certain thought or idea. This can diminish the quality of the thought or idea in question.
This ultimately global nature of the marketplace of ideas gives us not only a justification of the equal right to free speech, but also a justification of the universal right to free speech.
So, the marketplace of ideas shouldn’t be understood in purely economic or literal terms, as a place where ideas are “traded” or “sold”, or “produced” and “consumed”; that wouldn’t make any sense. Of course, the result of the marketplace of ideas is that some people “trade” their old ideas for other ideas because the marketplace has proven that some ideas are hard to defend. In some sense of the word, ideas – and alternative ideas – are “exchanged”, as are arguments for and against ideas, but they aren’t exchanged in an economic sense. Also, one can argue that ideas have a cost: it may have been very hard and therefore costly to establish the set of arguments in favor of a winning idea (the marketplace of ideas is a tough place); or it may be costly in terms of status to hold on to an idea that has been thoroughly debunked in the marketplace. In the end, however, it’s never advisable to take metaphors too far or to use economic thinking where it doesn’t belong.
One important caveat: none of this should lead to the conclusion that massive support for an idea automatically turns this idea into a good one. It’s not because many people have decided that an idea is strongly supported by the best arguments and that other ideas have failed, that they are right. Maybe the marketplace of ideas hasn’t worked properly, because some of the prerequisites aren’t there (massive participation, strong speech rights, an educated citizenry etc.). Maybe the popular assessment of the balance of arguments rests on nothing more than prejudice. If you insist you can call this a “market failure”.
Here’s a quote that nicely illustrates my point – it’s about scientific discourse but it applies generally:
Science works very well as a social process, when we can come together and find flaws in each other’s reasoning. We can’t find the problems in our own reasoning very well. But, that’s what other people are for, is to criticize us. And together, we hope the truth comes out. … [W]hen people reason on their own, they’re unable to arrive at a good solution, at a good belief, or to make a good decision because they will only confirm their initial intuition.
On the other hand, when people are able to discuss their ideas with other people who disagree with them, then the confirmation biases of the different participants will balance each other out, and the group will be able to focus on the best solution. Thus, reasoning works much better in groups. When people reason on their own, it’s very likely that they are going to go down a wrong path. But when they’re actually able to reason together, they are much more likely to reach a correct solution. (source)
Some of the consequences of hate speech are human rights violations; others are not. Only the former are good reasons to criminalize hate speech and carve out an exception to the right to free speech. Rights can only be limited for the sake of other rights or the rights of others (more here). Let’s go over the different possible consequences of hate speech and see whether or not they imply rights violations.
Hate speech lowers self-esteem in the targets. People who are repeatedly subjected to hateful remarks or jokes about their race, gender, sexual orientation etc. tend to develop feelings of inferiority, stress, fear and depression. Of course, there’s no right not to be depressed, fearful, stressed etc. Therefore, we can say that hate speech should be protected speech when its consequences are limited to these. These are harmful and brutal consequences, but not harmful or brutal enough to be rights violations. We should be concerned about them and try to do something, but this “something” doesn’t include limiting free speech rights. However, people who are extremely intimidated and stressed and who have a deeply negative view of themselves tend to isolate themselves. Isolation isn’t a human rights violation, but couldn’t we argue that willfully isolating people means violating some of their rights? Isolated people don’t speak, assemble, associate etc. In that case, we could argue for limits on the rights of hate mongers.
Hate speech often has even more extreme consequences. Targets of hate speech may feel compelled to leave their homes and move elsewhere, to quit their jobs, and to avoid certain parts of town and public areas. This is a direct violation of their freedom of movement, freedom of residence, right to work and possibly even their right to a certain standard of living. It’s obvious that the free speech rights of the haters should in such cases be deemed less important than the many rights of their victims.
Hate speech can also means invasion of privacy, for example in the case of repeated phone calls, hate mail, or stalking.
Violations of property rights are another possible consequence of hate speech. Hate speech sometimes means vandalism, graffiti (sometimes even inside the homes of the targets), cross burning in someone’s front lawn etc. These cases of hate speech already start to resemble hate crime.
The line between hate speech and hate crime is even thinner when speech is not just hateful but an incitement to violence. For example, hate speech can provoke race riots; it can help hate groups with an existing tendency toward violence to attract new recruits etc. (a larger group will feel more confident to engage in hate violence). And what if hate speech allows hate groups to gain control of (local) government? That would probably lead to discriminating policies and laws.
This overview of possible and actual consequences of hate speech should concern those of us who care about more human rights than just freedom of speech, and who know that different human rights aren’t always in harmony with each other. In some circumstances, some rights need to give way in order to protect other rights. That’s an unfortunate but inevitable consequence of the value pluralism inherent in the system of human rights.
Read more posts in this series here.
- Rashad Robinson: ‘Dr. Laura’ Is No Free Speech Victim (huffingtonpost.com)
- Media Watchdogs Ask FCC to Track Internet Hate Speech (reason.com)
I would say yes, but only some. For example, if we go around and successfully propagate the theory that wrongdoers will burn in hell, then this may have a beneficial effect because fear may inculcate morality (as all deterrence theories about crime have to assume). Similarly, false beliefs about the efficacy of law enforcement and the honesty of law enforcement officials also help.
Many false beliefs about high levels of risk can produce risk-averse behavior which in fact lowers the risk and makes it more likely that human rights are protected. For example, if people wrongly believe that their privacy is threatened in certain circumstances, they will take action to secure their privacy and make their privacy more secure than it already was. (More about human rights and risk here).
Human equality – “all men are created equal” – is obviously a false belief when taken as a fact, and in the quote it is taken as such. People are born with different abilities, talents, endowments, advantages etc. And yet we act as if the phrase is more than just a moral imperative. It seems like it’s easier to convince people to treat each other as equals when we say that they are equals.
Certain forms of self-deception also seem to be beneficial from the point of view of human rights:
Self-deception … may be psychologically or biologically programmed. The psychological evidence indicates that self-deceived individuals are happier than individuals who are not self-deceived. … Lack of self-deception, in fact, is a strong sign of depression. (The depressed are typically not self-deceived, except about their likelihood of escaping depression, which they underestimate.) Individuals who feel good about themselves, whether or not the facts merit this feeling, also tend to achieve more. They have more self-confidence, are more willing to take risks, and have an easier time commanding the loyalty of others. Self-deception also may protect against a tendency towards distraction. If individuals are geared towards a few major goals (such as food, status, and sex), self-deception may be an evolved defense mechanism against worries and distractions that might cause a loss of focus. Tyler Cowen (source)
We can claim that, to some extent, happiness, self-confidence, achievement and risk taking are indicators of and/or conditions for the use of human rights. Happy and confident people who are willing to take risks are more likely to engage in public discourse, to vote, to associate and to exercise their human rights in other ways. If that’s true, and if there’s a link between happiness, confidence and self-deception, then self-deception is another example of a falsehood that is beneficial to human rights.
I could go on, and I also could, very easily, list several counter-examples of falsehoods that are detrimental to human rights (take the 72 virgins for instance, or communism). The point I want to make is another one: should we actively promote certain false beliefs because of their beneficial outcomes?
Most of us believe that there is something like a benevolent lie and that lying is the right thing to do in certain circumstances. A strict rule-based morality is hard to find these days. Few would go along with Kant who said that we shouldn’t lie when a murderer asks us about the whereabouts of his intended victim (“fiat justitia et pereat mundus“). People tend to think that the expected consequences of actions should to some extent influence actions and determine, again to some extent, the morality of actions (“to some extent” because another common moral intuition tells us that good consequences don’t excuse all types of actions; most of us wouldn’t accept the horrible torture of a terrorist’s baby in order to find the location of his bomb).
On the other hand, we should ask ourselves if such an enterprise, even if we deem it morally sound, is practically stable. Some false beliefs have proven to be vulnerable to scientific inquiry and public reasoning (hell could be one example). It’s not a good idea to build the system of human rights on such a weak and uncertain basis. But perhaps we should do whatever we can to promote respect for human rights, even if it’s not certain that our tactic is sustainable.
And yet, actively promoting falsehoods is in direct opposition to one of the main justifications of human rights, namely epistemological advances (I stated here what I mean by that). We would therefore be introducing a dangerous inconsistency in the system of human rights. We can’t at the same time promote the use of falsehoods and argue that we need human rights to improve thinking and knowledge. So we are then forced to promote the use of falsehoods in secret – which is necessary anyway because people will not believe falsehoods if we tell them that they are falsehoods – but thereby we introduce another inconsistency: human rights are, after all, about publicity and openness.
Campaigners [in Pakistan] yesterday demanded the release of a schoolboy who was arrested and imprisoned for writing alleged blasphemous remarks about the Prophet Muhammad on an exam paper. Under the country’s draconian laws, he could face the death penalty. … It is unclear what Mr Samiullah may have written. When the police were asked about his alleged offence, they declined to elaborate, suggesting that it would blasphemous to repeat the words written. (source)
Helmut Manz, who serves as deputy spokesman for the Left Party in North Rhine-Westphalia, was attending a demonstration outside a hall where Thilo Sarrazin, former Bundesbank Board member, was scheduled to speak. (Sarrazin is the author of the controversial book “Deutschland schafft sich ab” (“Germany Does Itself In”), in which he disparaged the work ethic and intelligence of Germany’s Muslim immigrants, views German Chancellor Angela Merkel was quick to criticize as “absurd.” ) Someone in the crowd reportedly heard Manz call Sarrazin an “ass,” prompting Sarrazin to file a complaint against Manz. According to Der Spiegel’s report, German law proscribes cursing at others with expletives. Manz has now been sentenced to pay a fine of 500 Euros or spend 50 days in jail but is appealing. In an interview about his sentence, Manz said that he does not remember making the remark, adding:”All racists, which therefore includes Mr. Sarrazin, are assholes.” (source)
My two cents about the shooting of Gabrielle Giffords:
- The attack was obviously politically inspired, even though the shooter may have been insane. An insane act isn’t necessarily apolitical. There may or may not be a direct causal link between the attack and the “heated political rhetoric” that has come to characterize American politics and that often borders on incitement. (Compared to other western democracies, the political language is indeed extreme in the US). If there is such a link, it will be very hard to establish, given what we know about the psychology of the attacker.
- In general, violent rhetoric can contribute to actual violence (see this paper for example). The case of the Rwanda genocide is well-known. And we don’t need to go and look at extremes in order to find cases of hate speech turning into hate crime. There are not a few pedophiles who have had there whereabouts shouted from the rooftops and who suffered the consequences. Given the omnipresence and ease-of-use of the media in developed societies, what is published and broadcast through these media may very well nurture or even provoke extremism and hate in society. It’s futile to deny this possibility.
- This general conclusion does not warrant the automatic linking of a case of violence to instances of political rhetoric that seem to be a possible inspiration. In other words, it’s not because Sarah Palin was silly enough to publish a map with cross-hairs “targeting” Giffords (among others) in a purely political and non-violent way, that her actions caused the attack. Maybe these actions contributed, maybe not. Most likely we’ll never know. And even if they did contribute in driving a sick person over the edge – which is not impossible – then they are most likely only one element in a large set of causal factors, including the perpetrator’s education, medical care (or lack thereof), the ease with which he could acquire a gun etc. That large set doesn’t drown individual causes but it does diminish the importance of each (possible) cause. Human motivation and the determinants of human action are almost always highly complex. (Something which is too often forgotten in criminal sentencing).
- Given the general possibility of speech resulting in violence, is that possibility a sufficient reason to limit our freedom of speech, even before the actual violence occurs? Yes, but only in very specific cases, namely those cases in which the link between speech and (possible) violence is clear. John Stuart Mill used the example of an excited mob assembled in front of the house of a corn dealer accused of starving the poor. Hate speech in such a setting is likely to lead to violence, while the exact same words printed in an obscure magazine are not. The words in the magazine should be protected by freedom of speech; the words of the mob leaders probably not.
- Yet even when words should be left free by the law, morality requires of speakers that they consider the possible consequences of speech.
- Are the events we witnessed recently of the same nature as the words of the mob leaders? And what about similar recent events? I don’t think so. Which means that the people concerned have not abused their freedom of speech.
- Does that mean that they used their freedom in a good way? No, it doesn’t. Heated rhetoric is almost never the best way to talk, not even for the purposes of the speaker. It doesn’t tend to accomplish a lot or to further anyone’s interests (apart from the interest in getting attention). So those of us who insist on “turning it down a notch” have good reasons to do so. This insistence obviously doesn’t imply curtailment. It’s just a question, and it deals with form rather than content. People are generally too fast to claim their right to free speech when confronted with criticism of the way in which they use or abuse this right. Criticism of speech doesn’t automatically imply the will to prohibit speech, and freedom of speech doesn’t mean freedom from criticism. Quite the opposite.
(Perhaps it’s best to read this post together with a previous one dealing with a similar topic).
One of the justifications of the right to free speech is an epistemological one: free, equal and massive participation in public discourse produces better decisions and opinions because it allows for
- the appearance of a large number of arguments and perspective and
- widespread criticism and examination of possible decisions and opinions.
Looking at possible decisions and opinions from a variety of perspectives and listening to a maximum number of critical arguments for and against, improves the quality of decisions and opinions. Freedom of speech is not, in theory, necessary for this improvement, since a single talented individual can, in isolation, imagine perspectives and counter-arguments. However, better than to trust the imagination and the limitless neutrality of an individual, it is better to use the resources of the crowd, and there is no better way to do that than to protect freedom of speech as an equal right for all. This idea has been called the marketplace of ideas.
An added advantage of involving the crowd in public discourse is that individuals will anticipate criticism and will therefore make better use of their imagination and improve their arguments even before entering the quality enhancing public discourse. (I’ve made a somewhat more profound version of this argument here).
Intuitively, one would expect that this marketplace of ideas, protected by freedom of speech, should result in some convergence: bad arguments and weakly argued opinions and decisions would lose support in public discourse, because they are publicly shown to be bad or weakly supported. The majority of people should then gravitate towards the better opinions. However, we often see the opposite, namely polarization, i.e. increasingly sharp divisions in society with groups having extreme opinions that are strongly held and that aren’t thoroughly examined. Often, the strength at which those opinions are held bears no relation to the strength of the arguments in favor of them. That’s the marketplace of ideas equivalent of harmful but popular products.
We then have to ask ourselves which of these two statements is true:
- Polarization is the result of an insufficient or inefficient functioning of freedom of speech and public discourse. In which case we can hold on to our epistemological justification of that right.
- Or polarization happens notwithstanding freedom of speech. In which case we seem to lose a possible justification for freedom of speech.
“Both” is probably the best answer. Freedom of speech facilitates public discourse and improves the quality of it, but only if it is used. If people decide not to use freedom of speech, and decide not to listen to opposing views or to argue with opponents, then this freedom can’t improve public discourse. Yet the absence of a proper use of this freedom does not invalidate the freedom itself. It does make it harder to justify this freedom as something beneficial. If many people don’t use freedom of speech to improve public discourse it becomes more difficult to argue that we should protect freedom of speech because it improves public discourse. And yet, this doesn’t undermine the theoretical or philosophical argument that freedom of speech can – in theory – improve public discourse. So the inherent desirability of free speech remains, even if the practical desirability is weak. (Note that there are other possible justifications for freedom of speech, some of which have nothing to do with the topic we’re discussing here).
Also, we often see that polarization is the result of an insufficient or inefficient functioning of freedom of speech and public discourse. Cass Sunstein, for example, wrote about the “law of group polarization” and showed that polarization is to some extent the result of exclusively intra-group deliberation (climate change deniers who discuss their views only with fellow-deniers tend to come out of these discussions with an even stronger version of their initial opinions).
And finally, we should be careful in our estimates of polarization. Some high profile cases of polarization can give the impression that polarization is rampant. But people disagree about the extent of polarization. It all depends what topic you’re dealing with, and things differ from country to country as well. Also, the political class can make polarization look more common than it is among the general population. If polarization isn’t as widespread as we think it is, then its impact on freedom of speech is also smaller.
- Limiting Free Speech (42): Reporting the Names of Suspects and Defendants (filipspagnoli.wordpress.com)
- FREEDOM OF SPEECH. Good or bad? Its a bitter sweet symphony… [Nick Dutch] (ecademy.com)
- Does Freedom of Speech Exist in Liberal Precincts? – Fox News Video – FoxNews.com (pumabydesign001.wordpress.com)
In many countries it’s quite common, and legal, to include some very specific information about suspects in crime reporting. Newspapers, television shows and websites publish the names, photographs and even addresses of people who are arrested on suspicion of a crime, even if it later turns out that these people were completely innocent. By that time, of course, their reputation, privacy, livelihood, social relationships and perhaps even family life may have been destroyed beyond repair. One can argue that this practice is unjust and an abuse of freedom of speech, even in the case of people who, after the trial is over, are deemed to have been guilty rather than merely a suspect. Criminal punishment should arguably not include such far-reaching consequences. A fortiori, the harm done by such publications to people who were wrongfully suspected is even more unjust because it amounts to punishment before conviction.
That is why some people – including myself – are in favor of limited restrictions on this type of news reporting, even if it means limiting journalists’ freedom of speech. The names, addresses or photographs of suspected criminals should not be made public until after a conviction, and in some cases not even then (there’s the example of the Bulger murder). That is obviously a limitation of the freedom of speech of the journalists engaged in such reporting, but a justified limitation (read the whole series of blog posts for other examples). Before I argue why it is justified, let me reiterate my strong support for free speech in general and open justice in particular. Justice must not only be done but also seen to be done. Open trials have many advantages and can help to avoid miscarriages of justice. They are necessary in order to avoid witness or expert fraud, they make it possible for new evidence to show up and they make it more likely that society accepts the outcome and retains confidence in the justice system as a whole. Evidently, the media play an important role in making trials truly public and open, and hence they should have access and freedom of speech. (Read more about why an open trial means a fair trial here).
Now, why do I think this access and speech shouldn’t necessarily or always include the identity of the suspects? Because there is, in most cases, no real need for that. It’s perfectly possible for the media to play their part in the openness of trials and therefore the fairness of trials without disclosing the identity of the suspects. Some exceptions may be necessary, for instance when a successful prosecution depends on “crowd sourcing” (e.g. to find out the whereabouts of a suspect), but those should remain exceptions. The default should be anonymity. Most of the time, when the media disclose the identity of a suspect, it’s not in order to assist the prosecution, but to pander to the most basic instincts of the public: hate and voyeurism. Unfortunately, newspapers sell and websites are visited when they have stories about gruesome crimes supposedly committed by someone belonging to a minority already covered in prejudice and when these stories contain all the fine detail, including names, places and pictures.
Obviously, amoral commercial exploitation of basic instincts isn’t a sufficient reason to limit freedom of speech (and neither is it a reason to defend it), but we do have other reasons. Why should the rights of one – the media in this case – automatically trump the rights of another – the privacy of suspects, their livelihood etc.? Rights need to be balanced against each other, and when there’s no strong reason to uphold one right – as is the case here (reporting can be done perfectly well without identification) – it should yield in order to protect the other right.
Some would say that the role of the media in the openness of trials isn’t the only possible argument in favor of disclosing identities. Another argument goes as follows: if the media can’t disclose enough details, their stories will lose human interest and become vague and abstract treatises. No one wants to read that, and consequently the media will stop writing about the Courts altogether, and the social debate about criminal justice will suffer. I think that argument is mistaken. You can write real human interest stories about real people without printing the names, addresses and photographs of possible suspects.
Others would say that I exaggerate: the public is quite capable of distinguishing between suspects and convicted criminals. Maybe, but does anyone honestly think that excessively invasive crime reporting never harms suspects or never imposes disporportionate harm on convicted criminals? I think that would be an extremely naive position to take.
Now, as I said, there have to be exceptions: sometimes a successful prosecution requires the disclosure of a suspect. I can also be argued that people who hold a prominent position in society should also, in certain cases, not benefit from anonymity during prosecution. But that should be the exception and only in cases where there is some public good involved in knowing the suspect. We should not let hatred, voyeurism, Schadenfreude or the commercial interests feeding on these instincts, ruin people’s lives.
More posts in this series are here.
- Canada’s Supreme Court upholds right of defendants to seek ban on reporting of proceedings (foxnews.com)
- Anonymity plan for rape accused (news.bbc.co.uk)
- Supreme Court upholds blanket publication ban for bail hearings (theglobeandmail.com)
Add this one to the older collection of ironic protest signs.
Do future generations of people have human rights claims against those of us who are currently alive? Can we who are currently alive violate the human rights of future generations? And if so, what should we do to avoid it?
Future generations – as opposed to past generations – can incur harm following our actions, and can therefore, prima facie, invoke rights claims against us (namely for those types of harm that are rights violations).
One thing to keep in mind when discussing the rights of future generations is the following assumption: future people have the same values and preferences, and the same impediments to these values and preferences. Human rights are in essence tools to realize values and preference, and often take away impediments to values and preferences. Following this assumption, future generations can be said to require human rights to the extent that those currently alive impede their values and preferences. However, that need not be the case. Maybe future generations will have other values or preferences, or maybe they will face different impediments that can’t be removed by human rights, or maybe they’ll have found other ways to remove certain impediments. Maybe in the future there won’t be religion, scarcity, states or animosity, but different values and impediments. Still, I’ll keep the assumption in place, both because I think it’s likely that future generations will be much like ourselves, and because the concept of “human rights of future generations” wouldn’t make any sense if that is not the case (and I really want to write this post).
Actions which affect the human rights of future generations
The easy thing to understand about the harm we, the present generations, can do to future generations is the consequentialist part: it’s fairly obvious that, given the stated assumption, some of our – potential and real – current actions can or will have negative consequences for future generations, and that some of these consequences can become worse as time goes on (see this post on the effect of time on rights violations).
Take resource depletion for example. If we now squander all or a substantial part of the earth’s oil reserves, it’s likely that future generations, and particularly those generations somewhat further in the future, will have a standard of living far below the minimum required by human rights (again, given the assumption that they need fossil energy because their preferences haven’t changed or because they haven’t found an alternative).
Present generations therefore exercise power over future generations, much like a state exercises power over its citizens. And much like a state, the present generation can be said to be bound by the human rights of those who are subjected to its power. With the exercise of power comes the duty to respect the rights of those who are subjected to power.
There may be a problem with all this, however. Contrary to the harm that is inflicted on currently living people, by their state or their powerful fellow citizens, the harm inflicted on future generations is rarely if ever a certainty, and never verifiable.
If we again take the example of resource depletion (but many other examples would do just as well), it may be the case that future generations will have invented the technology necessary to adapt to a world without oil. The chances of this happening may be small or may be large – we just don’t know and so we can’t take it into account in our considerations as to whether to adapt our behavior as a way to respect the rights of future generations.
We may assume that our actions (or inactions) can lead to rights violations in the future, but we’re never certain. So should we adapt our current behavior or not? We can verify if certain types of behavior lead to rights violations in the present, and – if they do – consequently adapt our behavior. (If lowering taxes increases poverty then we should avoid that policy). We can never verify if certain types of behavior lead to rights violations in the (distant) future. We can only guess that there’s a risk, perhaps based on similar past or present experiences. But the quality of those guesses remains uncertain.
Hence, it would seem that future rights violations can’t have the same moral standing as present and real rights violations. Or maybe they’re not even rights violations at all. Indeed, we normally don’t view the risk of a rights violation as equivalent to or as equally damaging as a real violation. Or maybe a very, very high risk of a future rights violation – assuming a good guess – equates an actually occurring rights violations?
I think all this is to some extent moot. When faced with a risk of a rights violation – or better the perception of a risk – the moral thing to do is to try to avoid the rights violation from occurring in the future, and adapt one’s behavior, in the same way as one would do when faced with a risk of causing a violation of the rights of people currently living. So the uncertainty of violations of the rights of future generations makes them no different, in some respects, from violations of the rights of current generations. Also the latter are – ex ante – uncertain, and the moral thing to do is always to adapt one’s behavior in order to minimize the risk of immoral behavior.
Some would claim that comparing future violations of the rights of living people to future violations of the rights of future generations is a mistake. Living people have rights which can – given a certain risk – be violated in the near or distant future (depending on the lifespan of those people) by our current behavior. Future generations on the other hand don’t exist, yet (and may never exist, see below), and hence can’t have anything, including rights. However, they will have rights in the future, when (and if) they live. To claim, as I do here, that we can violate future rights now doesn’t mean that we have to claim that these future rights have to exist now.
Tradeoffs between the present and the future
What to do when faced with a tradeoff between violating the rights of future generations and violating the rights of present generations? It depends on the best risk estimate of either, as well as the gravity and the number of people involved in either case, keeping in mind the fact that risk, gravity and number estimates of violations of the rights of present generations are probably better (because we can test them). Given this relative ease, we should give additional weight to the simple fact that we are dealing with really existing people as opposed to potential future people.
For example, we know that closing down an opposition newspaper is very likely to stifle free speech for a significant number of currently living people. We’re not absolutely sure of this consequence, but the risk is very, very high. We know this risk because we or others have tested it in the past. Now, suppose that we should choose between this policy and another one, for example allowing a substantial increase in green house gasses. Suppose also – I know, it’s weird but bear with me – that these two policies are, for some unspecified reason, mutually exclusive. The policy of increasing green house gasses risks putting future generations in danger of survival. When comparing the costs of both policies, we conclude that the level of risk is roughly similar (say 90% probability that the expected consequences – respectively stifling free speech and increased global warming – will indeed occur), but the gravity of the consequences is obviously much greater in the case of the second policy, as are the number of people concerned. Yet, we may still reasonably choose to implement the second policy and avoid the first because we’re more certain of our risk estimate for the first.
Actions which affect the existence or composition of future generations
Let’s take another example of current actions that have an impact on future generations: in this example, our actions do not deplete resources but have an influence on the very existence of future generations. We may destroy the earth for instance, making the very existence of future people impossible. Or we may intervene in procreation in such a way that future people will be completely different people than those who would have lived had we not intervened (that’s Derek Parfit’s so-called non-identity problem).
In both cases, our actions affect the very existence of future people, rather than their rights. And an effect on the very existence of people can’t, in itself, be considered a rights violation since there’s no right to exist. I’ve argued elsewhere why this is the case. (Of course, actions which affect the existence or composition of future generations can have, additionally, other consequence beside the existence or composition of future generations, and some of those other consequences can imply rights violations).
In other words, only the rights of actually existing persons – whether they exist now or in the future – are important. Potentially existing persons who will never exist because of our actions, do not count. Or, putting it in yet another way: the non-identity problem is not a problem in this context. The fact that the very existence or composition of future generations depends on our actions doesn’t have, in itself, any consequences for the human rights of future generations. The impact of our current actions can result in rights violations of future generations, but not if this impact is limited to the existence or composition of future generations. And the reason for this is the absence of a right to existence.
Duties instead of rights?
In order to avoid the problems created by talk of rights of future generations – namely the problems of uncertainty and of tradeoffs – it would perhaps be better to abandon all talk of rights of future generations, and focus on the duties of present generations towards future generations. And yes, there can be duties without corresponding rights: if I have a duty to respect the promises I make to you, you don’t have a corresponding human right to have these promises respected.
Mostly good news, which doesn’t mean that the U.S. invasion was justifiable or successful. For example, the casualties resulting from the conflict are absent from this overview.
More on Afghanistan here.
- Human rights group knocks ‘abusive’ Taliban officials (cnn.com)
- Taliban Stone Couple for Adultery in Afghanistan (foxnews.com)