the limits of free speech
Topics: FreeSpeech
26 Aug 1990
From: Ervan Darnell
The following is from a letter I sent to a friend.
Some of this might not flow because I'm answering his questions, but
most of it does. I thought it might be interesting because he made
the point that I have been waiting for one of you to make, are false
contracts protected by free speech? So, after some rambling about the
movie rating system, follows my discussion of those things that appear
to be restrictions of free speech and why I don't find them to be so.
I am, to a certain extent, arguing the opposite of the point that I
usually argue. This should give some of you great chances to attack
my position.
> [ Why is Siskel & Ebert less censorship than the
> industry's rating sytem? ]
For the obvious reason, S&E is not binding on me.
I can take it or leave it. This is not so with the industry
system. For that matter, I don't regard it as an industry system
because the government is involved. As I have said before the
rating system causes the content of films to be altered so as to
acquire certain ratings, regardless of artistic merit, and the
rating system causes movies to only be shown certain places,
a trivial instance of censorship. The most egregious example
of course is that frontal nudity can have no place in a film other
than in a porno flick because of the rating system.
> [At least the ratings can be appealed, S&E cannot. ]
I don't see that this makes any difference. Congress passing censorship
laws is just as bad the president doing so. For that matter, the
panel does not represent the viewing public, just a few people's
particular interest. A board of directors does not, de facto, make
a corporation democratically controlled. Furthermore, democratic
control can be just as fascistic as totalitarian control. Witness
the head long rush by the U.S. population to dispense with the
Bill of Rights in an ill fated attempt to stop drug use.
> [the rating system is broken in practice, not principle ]
No, I don't agree. I believe that any system with such sweeping binding
authority will necessarily be capricious. The above argument reminds
me of socialist apologists who say that everywhere socialism has
failed (which is everywhere) it is for this detail or that. They say
if it were just done right, it would work. They are wrong. The concept
is flawed in principle and will always fail. Seeing the small reason
obscures the big reason. I think this is true for censorship in the
form of the moving rating system as well.
As for your objection regarding what your 8 year-old niece
shoule see, I have three comments. First, just as a matter of philoshopy,
I think that it is wrong to deny anything to adults that they could
otherwise have because there is some difficulty in preventing minors
from obtaining it. This very notion of protecting minors is what has
given us censorship of hard core porno in all forms and wholesale
censorship of broadcast programming. Second, almost any time you
go to see a movie, you have sometime what it is about. You certainly
have a good idea what the level of violence, nudity, and obscenity is,
regardless of the rating. Little effort is required to determine
these things. You deliberately avoid movies you know nothing about just
so you don't waste your money, not for any high purpose of protecting
little ears from 'fuck'. Three, the murder and mayhem on TV is
so overwhelming I can't understand why anyone is concerned about what
kids see in the movies. Sex is worse than mow 'em down Rambo? I
don't understand that at all. What exactly are you protecting your
niece from?
>What is false advertising? That is a censorship on free speach.
Good! I consider this a substantial objection. I get so
tired of objections of the form 'but porn hurts people, but cigarette
companies are marketing death, but it's bad tactics to let the press
report what the CIA does,...' ad naseum. None of these are real
objections. I'm glad you've hit an interesting point. I don't
know what the correct philosophical answer is, but I see it this way:
There are two apparent exceptions to the concept of free speech.
One is when you trade that right away. Two is when you claim something
is speech and it is not. Number one answers the 'yelling fire in
a crowded theater' objection. When you enter the theater you make
an agreement with the theater not to engage in certain behaviors
while in the theater. You have voluntarily surrended part of your
free speech 'right', temporarily. This is all done implicitly.
If someone were really confused about the matter the theater would
have to explicitly inform you of what you were agreeing to by buying
a ticket. I don't see any problem with implicit agreements of this
sort. There is no infringement on your
right for your having done so.
Agreeing to keep certain state secrets when working for the
CIA is, likewise, not an infringement on free speech (not prima facie,
though certain onerous implementations might be).
Objection number two covers the free speech defense of
criminal activity. What if I shoot Bush and claim that it
was a political statement and therefore protected speech? Well,
the speech part is protected, but not the act itself. Likewise,
the mafia boss that orders a murder is not innocent of complicity
by reason of free speech and failure to personally pull the trigger.
The gray area here is when someone is advocating violence. Are they
complicit in committing the violence or are they merely arguing a position
that violence would be appropriate? The first should not be protected
and the second should. E.g., if someone says the U.S. government
should be overthrown by force and a kook that hears this on the T.V.
then plants a bomb in D.C., that doesn't make the speaker guilty of
anything. On the other hand, if someone is talking to a mob and
he points to particular policment at the event and says 'maul him', free
speech doesn't protect that. The Supreme Court has wrestled over this
very problem for years. The 'immenent violence' and 'fighting words'
doctrine is the legacy of this process.
Intellectual property
exists just as surely as physical property. Copying it to the
extent that it denies some part of the benefit to the original
owner is theft. Free speech does not protect this. Quoting passages
from a book does not deny anything to the original author and
is a reasonable aspect of free speech. Bootlegging a CD does and
is not protected by free speech since it is theft. Using someone
else's logo to lie about your product is likewise theft, because
you are stealing some of the value of their logo by selling an
inferior product (in the owner's eyes) under it. A defense
of this could also be made under objection number one. When you
buy or rent certain products you agree (sometimes explicitly, e.g.
videotapes) not to engage in certain types of behavior that would
superficially appear to be infringements on free speech. There are
certainly gray areas here too, e.g. does someone own their own
reputation? Some types of speech are meant to
be damaging but that doesn't necessarily mean they have stolen some
intellectual property that was truly posessesed by subject of the
criticism. There are thousands of examples, if you want to argue
particular ones, we can. I just wanted to add this paragraph to
make the above thoughts as complete as I could in terms of covering
things that appear to be exceptions to free speech.
Now, for your objection, I think it fits easily in the
framework that I have created above. Writing a false contract
is theft to the extent that one party delivers less than it
agreed to. Free speech does not protect that. The fact that
certain agreements are made verbally is not relevant. It might
be relevant to the enforcement, but not to the philosophy.
Of course, again, there are gray areas about whether or not the
contract was false, or merely deceptive, or not understood by
one of the parties, etc. I don't think any of these issues are
relevant to the philosophy though. They represent a case by
case problem.
The two most common instances of censorship in society
not covered by the two above ideas are regulating pornography and
libel law. I think the first is wholesale censorship. The latter
is difficult. I have said before that I have mixed feelings about
libel law. If someone were to libel me and suit were legally
feasable, I'm sure that I would be unhappy and that I would bring
suit. That does not mean that I agree we should have libel law.
If everyone has to live with it, I'm not going to fail to use it
against other people, because they will surely use it against me.
But, I would prefer that no one could use it. I'm against public
garbage collection, but since I have to pay for it anyway, I'm going to
use it. There is no hypocrisy there. You asked if I wouldn't be mad
at someone that libeled me. Of course I would. But I'm mad about many
things that people do; that doesn't mean I (should) have any right to
control them. One could make an extended argument under my point number
2 above that a person's reputation is something they own and it can't be
stolen. Personally, I don't find this satisfying. The Supreme Court
has wrestled with the issue without any clear decision. For private
individuals libel is easier than for public persons where libel requires
demonstration of error and *intent* to malign. The idea being that
here the content of the speech relative to the political world is
greater than the rights of this one person to privacy (or whatever),
whereas in the case of a private individual it is the other way around.
The libel contains protected content but un-protected theft of someone's
reputation and the two must be balanced.
I think the standard is too stingy with free speech, but I can see how
they arrived at it.
Anyway, if we accept such diffuse arguments about what constitutes
one's property then we have defined it so broadly that it may not have
any meaning. The extreme example is that communists are actually libertarians
because they believe in absolute property ownership and ownership was
established one million years ago where everyone had an equal share. They
simply want to enforce that situation and undo theft that has occurred
in the interim. Well, I'm verging off into the deep philoshopical blue
here. Let me make my point with a hypothetical example: Person A writes
a compiler that is sold to person B who write a package to handle a piece
of medical equipment that is sold to company C that builds the device
that is sold to hospital D which is then operated by person E and the
device harms the patient. The patient's lawyer learns that were was
a bug in person's A compiler. Who is responsible? Well, that might
be a hard question, but it is not person A (assuming the compiler was
not guaranteed, as is usually the case) because he is too far removed
from the end result to have any control over the matter and is in no way
negligent. What if instead of physical steps, there were simply written
articles each encouraging the next author to write something or providing
him with some questinable fact that finally resulted in my being libelled?
If I could use the logic of libel being theft of some intangible then
I could extend the logic arbitrarily far back. This is unlike the case for
physical damages where there is someone that takes responsibility for
something working (usually). My agreeing to buy something generates
certain guarantees of fulfilling the contract. Someone libeling me is
quite different.
The farther I am into this argument the more trouble
I'm having trying to explain my point. I'll try to summarize and we can
take it later, if you care: I seems to me that free speech defends
the right to libel. Yes, this can be unfair, but so can a lot of things
in a free society. We are better off to accept the unfairness than
try to regulate it. There may be defenses of libel law that keep it
from being a violation of free speech, but I don't believe them.
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