"The Right to Free Speech" is a
March 5, 2017
How should people respond to the exercise of speech that harms or threatens to harm innocent people? That is the subject of this article. I am not referring to speech that is merely disagreeable to some because it is too vulgar or because it is disrespectful or annoying for some reason.
I am referring to speech that is used, for example, to "rally the troops" so to speak in order to subsequently get them to commit very real oppression of some innocent people. Speech that dehumanizes innocent people, even if it doesn't advocate any specific action, is speech that is used to make it possible in the future to carry out actual oppression. The Nazis used speech to dehumanize Jews to rally the SS troops to carry out violence against them. Slavery and the later Jim Crow laws were only made possible by centuries of racist speech (in newspapers, magazines, political rhetoric, etc.) that dehumanized black people but that often did not also call for any particular action against them. The stereotype image of blacks as having only the intelligence of a child, of being "lazy Sambos," and the men being ready to rape a white woman if ever they had a chance--this racist belief about black people was inculcated in the white population by mere speech, and it gave the slave owners and later the Jim Crow laws the support among ordinary whites that was required to carry out the oppression of blacks.
I am also referring to speech that is used to facilitate the organizing that is required to carry out real oppression of innocent people, even when that speech is not explicitly for that purpose and, for that reason, might be considered protected speech in a court of law that would declare speech that was more explicitly aimed at inciting violence illegal.
Without prior speech to dehumanize innocent people, it is virtually impossible for an oppressor to carry out the oppression of those people.
How should we respond, for example, when racists try to speak on college campuses, such as Charles "blacks are genetically less intelligent than whites" Murray's recent attempt to speak at Middlebury College reported here. This is a question that we should answer by figuring out how, in the specific circumstances of the moment, we can best prevent racist views from gaining support and from being acted upon. The notion of a "right to free speech" has absolutely nothing useful to offer us in this effort. Let's look closely at this so-called "Right of Free Speech."
Voltaire's Famous Declaration
Let's start by examining the famous statement attributed (perhaps apocryphally) to Voltaire: "I disagree with what you are saying, but I will defend to the death your right to say it." This is a stupid statement. Here's why. "Saying" is a form of "doing." Whenever two or more human beings do something for a shared goal, it is virtually always the case that it required some previous "saying" to make this "doing" possible. Joint actions require prior communication to motivate the action and formulate how to execute it. "Saying" is a key part of "doing"--often the most important part.
Nobody would say, "I disagree with what you are doing, but I will defend to the death your right to do it" would they?
Consider this act of "saying": a bunch of people are driving a truck around the city and using a bullhorn to say (not do, just say, mind you), "It's time to burn the Jews who are the cause of all our suffering; let's start by assembling at 4th and Vine at 5 P.M. today; bring weapons."
Would you say about these "sayers," "I disagree with what you are saying but I will defend to the death your right to say it"? Wouldn't that amount, under the circumstances, to saying, "I disagree with what you are doing but I will defend to the death your right to do it"?
Of course current law against incitement to commit a crime might make the speech of the people in this anti-Semitic truck example illegal, with the approval of those who say they support the freedom of speech principle.
But what if the anti-Semites in the truck just announced this: "The Jews are the cause of all our suffering and we need to figure out what do to about it to REALLY solve the problem once and for all. Let's start by assembling at 4th and Vine at 5 P.M. today, and come prepared."
This might pass as legally protected speech today on the basis of "freedom of speech."
Would you STILL say, of the anti-Semites using this "toned down" speech (some might call it "dog whistle" or "you know what I mean" or "read my lips" speech, but never mind), "I disagree with what you are saying but I will defend to the death your right to say it"? Wouldn't that again amount, under the circumstances, to saying, "I disagree with what you are doing but I will defend to the death your right to do it"?
There is no sharp line between "saying" and "doing." A bogus "right to say" amounts to a "right to do." Saying is often merely the first step in doing.
Yelling Fire Falsely in a Crowded Theater
Most people make an exception for the "right to free speech" when it is the proverbial case of "yelling fire falsely in a crowded theater." The reasoning is that the "saying" will clearly cause immediate harm to innocent people. People who defend the "right to free speech except when it is 'yelling fire falsely in a crowded theater'" are wrong in believing that they have a coherent philosophy. This too is a bogus kind of "right to free speech." Here's why.
First, note that the original use of the phrase "yelling fire in a crowded theater" was when Justice Oliver Wendell Holmes used it in defense of the government's right to prevent the distribution of flyers opposing the military draft for World War I. Holmes argued that the flyers might be persuasive for some people, and this might in turn lead them not to enlist in the military, and this in turn could prevent the "War to End All Wars" from ending all wars. Here's the point.
Even the man who coined the phrase "yelling fire in a crowded theater" knew that "saying" is a form of "doing" and that the immediacy and inevitability and specificity of the causal effect of the "saying" on the "doing" is NOT what is important; what is important is the harmfulness of the possible (not even guaranteed) effect (not that I think anti-war flyers were harmful to innocent people during WWI, but Justice Holmes certainly did.)
Speech is Part of Waging War
WWI, which Justice "Yelling Fire in a Crowded Theater" Holmes was so determined to wage, was orchestrated by the oppressive classes of the world against the oppressed (working) classes of the world. This was class war that made working class people kill each other by the millions so they would be unable to remove their upper class rulers from power over them. In a war, each side uses "saying" to strengthen its side and weaken the other side. Winning a war means, among other things, prevailing over the enemy and preventing it from using "saying" to reverse the outcome and prevail over one's own side in the war. Justice Holmes knew this, and we should too.
During World War II virtually everybody living in the Allied (anti-fascist) nations was convinced that the Allied war aim was morally just, because they thought it was to protect people from terrible oppression by fascists.* This is why people thought it was perfectly morally right for the British air force to shoot down German intelligence-gathering planes that were flying over England. Think about this.
The pilots in these German planes had no weapons, just radios. They were using these radios (that the German government was listening to) to SAY something, specifically to say what they were seeing. These pilots were using their "right of free speech" (if you think such a thing exists) and were not using it (as when somebody falsely yells fire in a crowded theater) in a way that would cause any immediate and certain harm to any specific people. In fact, these German pilots were saying the truth about what they truly saw below; they were not telling a lie as in the case of yelling fire falsely in a crowed theater. According to the "right of free speech" principle it was wrong to deny these pilots their right of free speech by shooting down their planes to destroy their radios (and likely killing the pilots.)
But can you imagine the scorn and utter ridicule that would have been rightly hurled, by anybody considered to be in their right mind, at any person who would have said, "Wait! We can't shoot down these unarmed German pilots. They're only saying something about what they TRULY saw. They are merely speaking the truth. They have a right of free speech. It would be wrong to deny them their right of free speech."? Can you?
What would YOU have said about the "right of free speech" for the German pilots if you had been in England back then?
When people understand that there is a war going on in which one side is fighting for what is morally right against the other side that is fighting for what is morally wrong, then they understand perfectly well that it is morally justified to prevent the morally wrong side from doing anything, including just speaking the truth, that helps it to win the war.
The only reason people are confused about this "free speech" question when the context is the CLASS war between the oppressor and the oppressed, is because the oppressors have worked very hard to make us not understand that there even is a class war--a war in which the oppressed are morally right in doing whatever is necessary to prevent the oppressors from continuing to win it.
In the class war between oppressors versus the oppressed, the oppressed should aim to win. This would mean creating a society in which doing ANYTHING ("saying" included) for the purpose of oppressing people would be prevented if it posed an actual threat of enabling oppression to take place.
For example, the U.S. invasion of Iraq in 2003 was a totally unjustified mass murder of innocent Iraqis, of benefit only to the very rich. That murderous invasion was made possible in large degree by one speech, Secretary of State Colin Powell's famous speech at the United Nations in which he declared that Saddam Hussein had Weapons of Mass Destruction that he was about to unleash on innocent people in the U.S. and elsewhere.
Were it not for Powell's speech the American public would have been sufficiently opposed to the invasion to make President G.W. Bush very likely decide it would not be politically wise to launch it.
Powell knew he was lying when he gave his speech. We know this because The New York Times, in its Feb 1, 2004 editorial about what U.S. intelligence experts believed prior to the 2003 invasion of Iraq, noted that "the most important intelligence document leading up to the invasion was a National Intelligence Estimate [NIE] hastily assembled and presented to Congress shortly before the vote on a resolution authorizing the use of force in Iraq" and that the claims this document made about Iraq's danger to the U.S. were "out of kilter with the government's own most expert opinions."
The editorial points out that while the NIE said the aluminum tubes Iraq tried to import were for a nuclear program, "the Energy Department, the government's leading source of expertise, thought the tubes unfit for that purpose." It points out that the NIE's claim that Iraq had drone aircraft intended to deliver biological agents to American soil "was disputed by Air Force intelligence, the chief source of expertise on drones, which thought the drones were primarily for reconnaissance."
And the editorial adds, "Also left unexplained was how the estimate's [NIE's] authors could conclude that Iraq was continuing and expanding its chemical weapons programs when a Defense Intelligence Agency report had just acknowledged that there is no reliable information on whether Iraq is producing and stockpiling chemical weapons."
Some people would say that Colin Powell, as the U.S. Secretary of State at a meeting of the United Nations, had a right of free speech. But anybody who opposes the mass murder of innocent people knows that's absurd!
The Question Is Not Whether to Prevent Oppressors from Doing and Saying, the Question is How
When a person who "says" ideas that strengthen the forces of oppression has at least a certain level of support or friendly neutrality in the general public, it may be the case (it depends on the actual circumstances, not some bogus abstract "right to free speech" principle) that physically stopping this person from speaking will be counter-productive because that would only increase sympathy for this person and for his/her ideas. Sometimes the best way to prevent their pro-oppression views from gaining support and from being acted upon is by doing something different, such as demonstrating disagreement with the ideas or refuting them effectively.
But sometimes physically preventing the person from speaking is in fact the most effective way to prevent his/her ideas from gaining support and from being acted upon. If somebody goes around today on a college campus declaring that Jews are the cause of all our problems and specifically of some recent very unfortunate event and calling on people to meet later that day at a certain time and place to discuss how to REALLY solve the problem once and for all and to come prepared, it would probably be best to physically stop that person from what he/she is "saying/doing." Right?
It would be STUPID to say, "Well, we should let this person say whatever they want. I disagree with what they are saying but I will defend to the death their right to say it. And they're not 'yelling fire falsely in a crowded theater' because, who knows, maybe nobody will show up at the specified time and place and even if they do show up maybe they won't try to do anything bad and even if they do try maybe they won't succeed."
Free Speech Does Not Exist Today in Our Class War Society
Our society is a dictatorship of the rich. The rich control the important institutions and use them to control public discourse. I discuss this in some detail here. Also, go here to see my email exchanges with seven Harvard deans or directors of Harvard centers in which they all adamantly refuse to hold a symposium on the absolutely pivotal question that is at the root of the Palestine/Israel conflict: "Should there be a Jewish state in Palestine?", in spite of the fact that their department or center deals with this area as a focus in one way or another. Harvard--supposedly a bastion of the "Right of Free Speech"-- suppresses anti-Zionist speech. (For a comical demonstration of this, read my email exchange with a Harvard dean who prohibited distribution of an anti-Zionist leaflet on campus, here.)
The rich know very well that anti-oppression speech is dangerous (to the rich) and so they limit it as much as they deem necessary.
At the same time the rich promote the idea that we have "freedom of speech" and that this enables EVERYBODY to be heard and therefore--this is the kicker--advocates of ideas that support oppression have a RIGHT to be heard. Well, no they don't.
When Freedom of Speech IS Important
Among people who are opposed to oppression, freedom of speech is important. It is important to the extent that it enables people to hear and discuss and debate ideas so as to be better able to prevent oppression. But in such a context, there is no "right" for somebody to advocate for oppression.
Yes, sometimes it is not clear whether a particular idea promotes or opposes oppression, in which case it needs to be heard and discussed freely. But once an idea is known to be supportive of oppression, it has no "right" to be heard. Allowing it to be heard may be useful for exposing it as being pro-oppression, but this is not a matter of a "right" but of deciding, given the specific circumstances, what is the best way to oppose and defeat a pro-oppression idea.
Is Free Speech for Oppressors Required in Order to Safeguard Free Speech for Good People?
Some people argue that we need to stand up for the "Right of Free Speech" for everybody--including those who use it to oppress people--because that is the way to protect free speech for good people. The thinking behind this notion is that our society is ruled over by institutions that are neutral in the class war, like a referee in a fight. In this mistaken view, the neutral rulers of society will either adopt a "Free speech for Everybody" policy or else nobody will have a right to free speech, and so, therefore, if we want free speech for the "good guys" then we have to demand it for everybody, including those who use it for oppression.
But our society is NOT ruled by a neutral "referee" that imposes the same rule for both "sides" of the class war. Our society is ruled by the plutocracy--the oppressing side, and it is going to suppress free speech for our side--the anti-oppression side--as much as it can, and promote free speech for its own side as much as it can. The only way for those against oppression to get the right of free speech is to fight for it. Fighting for the right of free speech for oppressors is crazy. It is as crazy as it would be for somebody who wanted to ensure the right of cooks to use knives for food preparation thinking it was necessary to uphold the right of everybody to use knives for any purpose whatsoever, including murdering innocent people, in order to protect the right of cooks to use knives for food preparation.
We need to carefully think about how to respond to pro-oppression speech. Yes, this can be difficult. It requires taking into account all sorts of things to figure out how best to prevent pro-oppression ideas from gaining support and being acted upon. But let's abandon the fairy tale that we don't have to think because there is a general one-size-fits-all "no need to think" abstract "freedom of speech" principle that tells us what to do in all cases--fight to the death for EVERYBODY'S right to free speech. That's absurd.
What's So Funny?
In the second paragraph of this article I talk about "Speech that dehumanizes innocent people, even if it doesn't advocate any specific action, ... speech that is used to make it possible in the future to carry out actual oppression." When such speech is humorous (indeed very undeniably funny, i.e., laugh-provoking, such as a joke or a stand-up comedy routine or a cartoon, etc.), it is still conducive of oppression and hence morally wrong. Read this scholarly article about how and why this is true, and while I recommend reading the entire article I provide some excerpts from it below for your convenience**. Also read this article (click on the "Northern Visions of Race in the Civil War Era: The Comic" link in it) about how racist humor was used to oppress blacks at the time of the Civil War.
To be clear, context is everything in this regard. Not all humor that pokes fun at certain people or even de-humanizes certain people necessarily increases the likelihood that those people will be unjustly oppressed. It depends on the context.
For example, in the United States the context is: a) centuries of extreme brutal oppression of, and discrimination against, black people, from chattel slavery to Jim Crow and lynchings to modern day systemic racial discrimination (that I discuss here and here); and b) no history of extreme brutal oppression of, and discrimination against, specifically blond women (as opposed to women in general who have, obviously, been discriminated against and oppressed for centuries.) Therefore, humor that de-humanizes black people (by relying on some negative stereotype of them) is dangerous to blacks whereas humor that de-humanizes blond women (by saying blond women are stupid) may understandably annoy or even anger some blond women but is not dangerous to blond women in the current United States context. (In a different context, blond jokes might very well be dangerous. Context is key!)
Another important aspect of the context is this: Who is expressing the humor and who is the intended audience for it? The context we live in today is that many millions of innocent Jewish people were murdered during the lifetime of some who are still living, and this Holocaust was made possible by antisemitic stereotypes. There is thus a big difference between non-Jews telling jokes about "greedy Jews" (etc.) to other non-Jews, versus Jews telling jokes about Jews (about how they have so many different opinions, or how they complain so much about their children, etc.) to other Jews. The former humor is dangerous to Jews; the latter self-deprecatory humor is not.
It is no excuse to defend humor that is dangerous to some people by saying, "It's only a joke." Dangerous speech is no less dangerous for being funny; in fact it may be more dangerous for being funny because humor lets a message be accepted that might otherwise not be--it lowers the guard of people hearing the humor.
* Actually, the aim of the war, for both sides, was to prevent working class people from making a revolution against the rich upper classes in each nation, as I show in my book, The People As Enemy: The Leaders' Hidden Agenda in World War II.
** Here are excerpts from "Racism without Hatred? Racist Humor and the Myth of 'Colorblindness'" by Raul Perez at https://journals.sagepub.com/doi/full/10.1177/0731121417719699 :
Humor, Social Affiliation, and Social Distancing
Before looking at the role of humor in racism and racialization, it is worth reviewing the social functions of humor more generally. Scholars have long theorized that social laughter fosters greater social affiliation among participants (Coser 1959, 1960; Douglas 1968; Fine 1976; Morreall 1986). For instance, Coser suggests social laughter “decreases social distance” (Coser 1959:172), and many have argued that as a form of social communication, an important social function of humor is in facilitating social cooperation, social bonding, and group formation. That is, social theorists believe humor and laughter play an important social role in unitinginterlocutors (Coser 1959; Fine 1976; Meyer 2000). While research increasingly suggests laughter is not unique to humans, as laughter is found among other primates and mammals, Guillaume Dezecache and Robin I. Dunbar (2012) contend that a unique evolutionary function of humor and laughter among humans was in increasing not only social affiliation and group formation but also group size. Humor use among human social groups, particularly through language, they contend, was a form of social “grooming at a distance” that allowed for larger social groups to be formed, in contrast to the natural limits that dyad-grooming practices placed on primate social group formations.
Therefore, as a form of human social communication, it is also important to understand that the kinds of humor that are shared socially, that participants find “funny,” and that aid in group formation are dependent on the social, cultural, historical, and political contexts in which participants and group members share and respond to such humor (Apte 1987; Boskin 1997; Douglas 1968; Fine 1976). As Coser notes, “specific types of humor flourish under different political conditions: there is totalitarian humor as there is democratic humor” (Coser 1959:172). Viewed this way, the “dark side” of humor and laughter is revealed as humor also functions politically to divide social groups, particularly in generating and reinforcing social boundaries, social distance, and inequalities (Billig 2005; Meyer 2000).
In the form of ridicule and insult, for example, humor and laughter are powerful forms of communication that can be used not only to “correct undesired social behavior,” but to target, discipline, marginalize, and alienate groups and individuals who are “othered” (Billig 2005; Lockyer and Pickering 2005; Pérez 2016a; Weaver 2011). Those sharing a laugh at the expense of an “out-group” foster greater social affiliation and decreased social distance with their “in-group,” while simultaneously creating and/or increasing social distance against their target(s) of ridicule and insult.
For instance, jokes targeting racial and ethnic “others” as stupid, buffoonish, dangerous, inferior, and so on, help facilitate the social bonding practices among in-group members, which in turn can (re)produce and reinforce an ethnocentric worldview (Fine 1983; Picca and Feagin 2007; Weaver 2011). In this way, humor also functions as a social “safety valve” that allows for “institutionalized outlets for hostilities and for discontent ordinarily suppressed by the group” (Coser 1959:180). In other words, race-based humor and laughter, when targeting an out-group in particular, plays an active role in group formation and boundary maintenance, as humor and laughter can simultaneously function as a uniting and divisive social activity (Fine 1976; Meyer 2000). With regard to racial formation (Omi and Winant 2014), such humor aids in reproducing and popularizing notions of racial superiority and inferiority (Picca and Feagin 2007; Pérez 2016a; Weaver 2011).
Understanding that a key social function of humor has been in facilitating social affiliation and social distance within and throughout human societies illustrates that social humor has social power. Moreover, humor is a rhetorical and political tool that can challenge, reflect, and reproduce asymmetrical power relations in society (Boskin 1997; Weaver 2011). This is why white ridicule of blacks and people of color is different from people of color ridiculing whites, as the insult and ridicule of whites by people of color has not carried the same social, political, and historical weight and consequence (Apte 1987; Ford et al. 2014; Pérez 2013; Picca and Feagin 2007). Even when nonwhites engage in the use of racist jokes, particularly in reciprocal contexts with whites in predominantly white settings, Picca and Feagin contend that the use and reliance of conventional racist imagery (e.g., racist stereotypes and slurs) is material that was long ago created and perpetuated by whites, via a white racial framing of society, to reinforce a social system of white supremacy across generations (Picca and Feagin 2007:75). In turn, racist joking practices generally work to support racist notions despite the “good intentions” of joke tellers (Hall 2000; Pérez 2016b). Therefore, in a society where historic and continued inequities stem from a structured and systemic racial hierarchy, racist humor serves to reinforce racially unequal social relations (Billig 2001; Hall 2000; Pérez 2016a; Weaver 2011).
Yet, sociologists have said very little about racist humor. While few sociologists have provided some interesting and provocative insights on humor and laughter more generally (Fine 1983; Kuipers 2015; Reay 2015), and race and humor in particular (Barron 1950; Burma 1946; Weaver 2011), sociologists have largely overlooked the significant role of humor in racialization and in maintaining dominant racial ideologies (Pérez 2013). That is, sociologists have largely ignored racist humor as a “serious” site for the sociological analysis of racism. In turn, they have largely failed to examine how seemingly positive emotional states and activities (e.g., joy, laughter) and seemingly “unserious” social practices (e.g., joke telling) have worked to reinforce a “color-consciousness” that has served to reproduce and circulate racial stereotypes, narratives, imagery, and emotions, while fostering racial affiliation, reinforcing racial boundaries and ideologies, and aiding racial formation. Thus, to better grasp the role of racist humor in the reproduction of racism and racial ideology more generally, it is important to (re)examine the historical relationship between racist humor and white supremacy.
The section titled "Racist Jokes in the Post Civil-Rights Era" describes racist joke books published and widely purchased in the 1980s and says:
It is important to note that while such joke books were framed as “offensive to everyone,” and were marketed as “not for the easily offended,” the circulation and popularity of such joke books were also used to support the conservative right’s attack on the cultural changes brought upon by the Civil Rights movement, the unacceptability of overt racist discourse in particular. For instance, conservative radio talk show host Rush Limbaugh challenged the notion that ridiculing blacks was unacceptable in the post-civil-rights era:
How come you can’t have a little fun about blacks? . . . What protects them? Why are they immune from legitimate forms of humor? (Baker 1993)
Moreover, in her revelation as the author of Truly Tasteless Jokes, Applewhite notes that in 2005, she was contacted by a writer for Doublethink, “an online magazine whose mission is to identify and develop young conservative and libertarian writers.” The magazine was interested in Applewhite’s “role in the culture wars” and for being “an early partisan against political correctness” (Applewhite 2011).
In other words, the success of the “equal opportunity offender,” as a challenge to “political correctness,” was in deflecting charges of racism, while simultaneously allowing individuals, whites in particular, to circulate racist jokes in public under the guise of “just jokes” and “free expression” during a period where serious forms of racist discourse were increasingly unacceptable. In turn, the strategic use and circulation of racist jokes during the post-civil-rights era, via equal opportunity offender rhetoric, contributed to the articulation, reproduction, and acceptability of racist humor during the emergence of a “color-blind” racial ideology.