Even before the Charlie Hebdo massacre I had been thinking about the limits of freedom of expression. Some believe that free speech should be absolute; I do not share this view, as all rights are limited by the rights of others and free speech is no exception.
It was that terrorist attack (and its justifications) what finally prompted me to write about the limits of free speech — remaining silent is another way to give ammunition to fundamentalists, because they would be the only voice establishing the limits of freedom of expression and, as we have seen already, the limits they want are more or less reduced to “forbid everything I dislike” (hi US colleges’ students!).
Following the guiding principle of the rights of others, we find some legitimate free speech limits:
• Defamation: Staining the reputation of others, spreading falsehoods; this action represents an immediate threat to someone who could see their friendships, partnerships and colleagues will stop talking to him, change their attitude or, worse, attack him for something he has not done.
• Bullying: Stalking and harassment intended to abuse psychologically, verbally and/or physically in a repeatedly fashion someone else.
• State Secrets: Revealing secrets that put in actual risk the citizens or officials of a country. (For example, military operations should not be broadcast live.)
• Trade Secrets: Revealing secrets that could jeopardize a business or commercial enterprise which value promise depends on or include the originality of an idea or secret know-how.
• Revealing the privacy of others: What each one of us does in his intimacy is his problem (with the possible exception of a partner infidelity in countries where infidelity is not a crime or punished in any way by the state, and when it is informed exclusively to the person(s) who was cheated on).
• Economic damage: When by means of speculation or lies the financial system of a country is put at risk of imminent collapse or someone is deceived into buying a phony product or service (fraud, false advertising).
• Health risks: Promoting pseudomedicine (homeopathy, acupuncture, reiki, etc.) and the denialism of proven treatments (antivaxxers and HIV-AIDS denialists).
• Threats: No one has to see disturbed his peace with threats to their safety or that of their relatives.
• Intellectual authorship: What is known as determinator in criminal law, the person who instigates or gives the order to commit a crime.
• Secular State: Secularism is the separation between state and religious denominations, so no one should abuse the platform offered by the State to favor any religious expression. In a secular state, the gods and their rules stay in their respective temples.
• Education: Schools, colleges and universities are places for the transmission of knowledge, which can only be reached through the scientific method and its tools. Educational institutions —primarily those in charge of teaching the little ones— have an obligation to tell them that which, thanks to the evidence, we can state with reasonable certainty to be true. That’s why it is shameful that some times schools become enablers of irrational and unscientific beliefs. The noble purpose of education lies in teaching new generations how the world works in order for them to defend themselves and cope with it. Abusing the trust placed in formators to convey religious, unscientific or conspiranoic belief systems or gratuitous statements, or to simply deny established facts, destroys the premise of education.
These behaviors are not covered by free speech because they all represent an actual risk to someone else in a direct and immediate way, with consequences that, most of the times, are irreparable.
Actually, as we never tire of repeating, there is the right to offend and the right to be offended, but there is no right to not be offended.
Salman Rushdie gets it:
There is no right in the world not to be offended. That right simply doesn’t exist. In a free society, an open society, people have strong opinions, and these opinions very often clash. In a democracy, we have to learn to deal with this. And this is true about novels, it’s true about cartoons, it’s true about all these products.
Nonetheless, we know that not everyone is a fair player. Someone might try to censor a legitimate comment accusing the author of bullying, and someone else might try to justify their harassment saying it is offensive speech but not bullying.
This is a typical example of the continuity paradox and will surely be recognized by those familiar with evolution.
If at one extreme we have green, and red at the other, we can argue that no point of the continuum is entirely green and likewise no middle ground is completely red; however we can clearly recognize the green and red and we can clearly determine the near end of any given point along the spectrum.
On this particular subject, I suggest the paradox be resolved with a case-by-case analysis to see if there was an intention of harassment or if, despite being provocative, an expression caused no harm to anyone. I think judges should receive special training to be able to deliver justice properly, to punish bullying and prevent censorship.
Free speech allows everyone to say what they think; however, most people in strong democracies do not feel their freedom to express themselves being threatened.
While an opinion is acceptable in a given society, its advocates will not see their right to speak constrained. Therefore, it is unpopular opinions that should be protected, since those are the ones at risk of being censored.
The right to express any opinion must be defended however offensive it is (blasphemy, criticism of beliefs).
The right to express any opinion must defended however repulsive it is (hate speech, sexism, racism, classism, paraphilias).
The right to express any opinion must defended however demonstrably false it is (Nazi atrocities denialism).
There will always be people with good ideas and bad ideas. As long as bad ideas do not pose a direct and immediate threat against someone else (or the society), we must defend the right to express those ideas because it is up to people to choose what ideas they want to be informed about, and because people should have access to bad ideas:
I was asked once if I thought Mein Kampf should be sold in book stores. Of course I do, not because I regard anything in that piece of garbage as nothing more than delusions, but because I don’t get to tell people what they can or can’t read. Welcome to Free Speech 101.
In the marketplace of ideas, people should be able to have access to any idea — it’s time we stop treating them like idiots; they won’t be convinced of a bad idea by the mere exposure to it
Free speech is essential for democracy and a bulwark against tyranny, it is what has allowed us to progress as a species and placing unnecessary barriers to it would be shooting ourselves in the foot.
As Jerry Coyne said recently:
The only reason we’ve been able to bend the arc of the moral universe towards justice, as Martin Luther King put it, is through speech and discussion—speech that some group would have deemed offensive and dangerous.