Response Paper: Free Speech

Response Paper Pavel Rozman "The risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices and insights or slide down the slippery slope toward tyranny.” - Stanley Fish I believe that you should punch a Nazi, metaphorically speaking. This is a take on a piece by Liam Stack in which, following a violent altercation with Richard Spencer, the reporter questions the ethics of combating seemingly abhorrent ideology with violence.1 Spencer is founder of the Alt-Right a movement steeped in white supremacy and fascist ideals. Personally I don’t believe that violence is ethical in any situation, but the notion at a larger scale is whether some speech, some thought, is so rank as to compel requisite suppression. In Fish’s commentary on free speech, titled provocatively “There Is No Such Thing As Free Speech, And It’s a Good Thing, Too,” he concludes that free speech is mainly a platitude which entitles us to justify odious beliefs with “abstractions” as he puts it. Fish’s essay deals largely with limitations of free speech both as a concept but also in respect to the logistical boundaries and justifications for setting or not setting boundaries on the right to free speech. The above quote is his core: essentially arguing in line with Bentham style utilitarianism that there is not enough positive value in allowing hate speech that it ascends above a threshold of what detractors hold as the sanctity of absolute free speech. Rather than focus solely on the harms of the hate speech in and of itself, Fish also takes the time to tease his oppositions’ weak argument that suppressing even a modicum of speech would lead inevitably to autocracy. The core argument he relies on is one of a fundamentally sound nature: free speech is a right created by man with which to open and further a discussion. Devout Capitalists will invoke the free marketplace of ideas notion fleshed out in Holmes

Liam Stack, “Attack on Alt-Right Leader Has Internet Asking: Is It O.K. to Punch a Nazi?” New York Times (New York 21 January 2017) 1. 1

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dissenting judgment of Abrams v United States when asked to defend such speech.2 On the contrary those displeased with this line of reasoning can look to Fish for their point of view to be articulately defended. Fish’s argument is persuasive in that it does the thing KellyAnne Conway fails to: refute head on the substantive issue. Fish for his part addresses the marketplace theory of free speech head on as opposed to skirting the question, and rebuts it on the central claim of the marketplace saying that some things are decided. Fish is correct. Some things are decided. There is not and ought not to be a marketplace which contains ideas which have already been debated, discussed, decided. Following the second world war which prominently made a cogent and visceral case for why Nazism is bad, we as members of a thinking species on a small planet, in a giant universe, agreed firmly to the conclusion that Nazism is bad. And as simply and rationally as we came to that conclusion in synonymously with each other in the east or the west, so too should we conclude things like racism or sexism have no place. As a society on the whole we have already accepted by and large that in fact many ideologies like fascism and sexism and racism are wrong full stop, so for those to be further debated on their merits, or to use sexism and racism as justifications in intelligible debate is similarly wrong. Thusly as this thing is wrong, and as it ought to be wrong, and it is right for all to perceive it wrongly as such, whenever it emerges from under the bed there is a duty to beat it back and to suppress it. There is no grey area, or acceptable version of these things in the world. Not only do they fail at an intellectual level to be helpful in anyway, the thinking leads to actual harm in the real world outside the ivory tower vacuums where they can be critically discussed. Similarly in a medicinal context we recognize broadly that there are diseases which are bad. Polio and smallpox at one stage ravaged physical health concomitant with racism plaguing ones mind of prejudice. Scientists developed the cure for polio and Lincoln passed the Thirteenth Amendment. Within the scientific community there is universal approval for the continuation of vaccinating against these scourges. When an atomic bomb was dropped on two cities in Japan the world stood still and silent and then after some time had passed, reflected, ashamed at having condoned such brutality. We convened and decided at

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250 U.S. 616 (1919) 630.

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a conference that we ought to actively prevent the spread of nuclear weapons, achieve disarmament, and refrain from using them due to the evidence of the past. This broad accepted however doesn’t seem to be applied in the area of speech, by large, mainstream groups, not exclusively at the polar fringes of the ideological or political spectrum. It is for this reason that there is such importance in settling the matter Fish argues. And while it has been exacerbated in the last year or so, there is prior discourse which is noteworthy to this present one. In countless US case law there has been clear signaling that nearly all speech and in fact action (as construed as speech) will be upheld on the basis of the amendment. In the United States speech and ideology is protected and enshrined as the first right of the Constitution. The courts have reaffirmed this more consistently than nearly any other principle. Historically this came from suppression of early American colonists who sought freedom from a tyrannical King George. And intrinsically free speech does make sense, and does feel good. It’s a pure expression of autonomy that as creatures we are blessed with but with that blessing comes a responsibility to understand the power of our speech and we ought to do right with this. Examples of powerful speech being suppressed by right thinking minds looking out for the overall betterment of mankind are abundant. One which comes to mind is Justice Scalia in the United States, a passionate textualist who skews right. As the most outspoken jurist on the Supreme Court in recent years preceding his death, he has written multiple judgements on ‘obscenity’ and ‘pandering’, a seemingly blurred distinction from other forms of speech3 he on occasion has supported. 4 Still Scalia, in light of a black family being terrorized by a white supremacist cross burning on their yard, suggested we “should celebrate rather than condemn the addition of this speech to the public debate.”5 One reasonably struggles to find what part of that is a beneficial addition to any debate that any group of the public is engaging in, and much less how we could celebrate anything that plainly repugnant and grossly offensive. It is nearly sickening that the plight of this family was a celebratory addition into public debate yet a pornographic film was an obscene travesty worth suppressing in 3

Perhaps because they were sexual in nature in all cases.

See FW/PBS v. City of Dallas 493 U.S. 215 (1990) & City of Littleton v. Z.J. Gifts D-4, L.L.C.541 US 774 (2004). 4

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R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

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Scalia’s mind. Yet with such loose and generously protections afforded often times there are groups wishing to discuss if not preach about odious ideas. These groups, be they the Westboro Baptist Church or Stormfront, not only believe the truth of the things they preach, but they devoutly feel they ought to be protected from prosecution or suppression of this speech under the First Amendment. There are fringe ideologues who wish to spread further these concepts and engage them in a public forum. Richard Spencer, the neo-Nazi whose punch was filmed and later set to iconic American6 music, filmed a video in a “safe space” as he termed it following the hit, where he espoused, among other things, his desire for a discussion on his views. For all parts of his post-mortem video which have been mocked and ridiculed this is one which is objectively frightening. He claims in an instant, “some people really want to discuss these ideas.”7 This has varying interpretations. Hope might allow us to view that claim in light of Spencer wanting to further self-aggrandize his own movement in a piece of viral content. Yet, when he and members of his movement seek to indoctrinate people unaware to it by suggesting there is flourishing and legitimate debate about the topic this is flatly concerning. Taking aside the incredulity that some humans sincerely believe such, what is frustrating is that even more moderate viewpoints time and time again defend their right to this speech on the basis that they are supporting and encouraging a discussion on the extreme viewpoints under the guise of freedom to share ideas. It should or ought to be the task of each informed citizen to prevent the spread of such vile thinking and thusly suppress this speech. Some ideas ought not be shared, or discussed, or spoken about, or added to the marketplace, or public debate. To paraphrase the words of Justice Potter Stewart, “[you]’ll know it when [you] see it.” 8

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https://twitter.com/prttybadtweeter/status/822620848897069056.

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https://twitter.com/RichardBSpencer/status/822571322819641344?ref_src=twsrc%5Etfw.

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Jacobellis v. Ohio, 378 U.S. 184 (1964).

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