Tag Archives: Freedom of speech

The Confederacy, License Plates & Free Speech

Louisiana Sons of Confederate Veterans special...

(Photo credit: Wikipedia)

Early in 2015 some folks in my adopted state of Florida wanted three Confederate veterans to become members of the Veterans’ Hall of Fame. Despite the efforts of the Florida Sons of Confederate Veterans, the initial attempt failed on the grounds that the Confederate veterans were not United States’ veterans. Not to be outdone, the Texas Sons of Confederate Veterans want to have an official Texas license plate featuring the Confederate battle flag. While custom license plates are allowed in the United States, the states generally review proposed plates. The Texas department of Motor Vehicles rejected the proposed plate on the grounds that “a significant portion of the public associate[s] the Confederate flag with organizations” expressing hatred for minorities. Those proposing the plate claim that this violates their rights. This has generated a legal battle that has made it to the US Supreme Court.

The legal issue, which has been cast as a battle over free speech, is certainly interesting. However, my main concern is with the ethics of the matter. This is, obviously enough, also a battle over rights.

Looked at in terms of the right of free expression, there are two main lines of contention. The first is against allowing the plate. One way to look at an approved license plate is that it is a means of conveying a message that the state agrees with. Those opposed to the plate have argued that if the state is forced to allow the plate to be issued, the state will be compelled to be associated with a message that the government does not wish to be associated with. In free speech terms, this could be seen as forcing the state to express or facilitate a view that it does not accept.

This does have a certain appeal since the state can be seen as representing the people (or, perhaps, the majority of the people). If a view is significantly offensive to a significant number of citizens (which is, I admit, vague), then the state could reasonably decline to accept a license plate expressing or associated with that view. So, to give some examples, the state could justly decline Nazi plates, pornographic plates, and plates featuring racist or sexist images. Given that the Confederate flag represents to many slavery and racism, it seems reasonable that the state not issue such a plate. Citizens can, of course, cover their cars in Confederate flags and thus express their views.

The second line of contention is in favor of the plate. One obvious line of reasoning is based on the right of free expression: citizens should have the right to express their views via license plates. These plates, one might contend, do not express the views of the state—they express the view of the person who purchased the plate.

In terms of the concerns about a plate being offensive, Granvel Block argued that not allowing a plate with the Confederate flag would be “as unreasonable” as the state forbidding the use of the University of Texas logo on a plate “because Texas A&M graduates didn’t care for it.” On the one hand, Block has made a reasonable point: if people disliking an image is a legitimate basis for forbidding its use on a plate, then any image could end up being forbidden. It would, as Block noted, be absurd to forbid schools from having custom plates because rival schools do not like them.

On the other hand, there seems to be an important difference between the logo of a public university and the battle flag of the Confederacy. While some Texas A&M graduates might not like the University of Texas, the University of Texas’ logo does not represent states that went to war against the United States in order to defend slavery. So, while the state should not forbid plates merely because some people do not like them, it does seem reasonable to forbid a plate that includes the flag representing, as state Senator Royce West said, “…a legalized system of involuntary servitude, dehumanization, rape, mass murder…”

The lawyer representing the Sons of Confederate Veterans, R. James George Jr., has presented an interesting line of reasoning. He notes, correctly, that Texas has a state holiday that honors veterans of the Confederacy, that there are monuments honoring Confederate veterans and that the gift shop in the capitol sells Confederate memorabilia. From this he infers that the Department of Motor Vehicles should follow the state legislature and approve the plate.

This argument, which is an appeal to consistency, does have some weight. After all, the state certainly seems to express its support for Confederate veterans (and even the Confederacy) and this license plate is consistent with this support. To refuse the license plate on the grounds that the state does not wish to express support for what the Confederate flag stands for is certainly inconsistent with having a state holiday for Confederate veterans—the state seems quite comfortable with this association.

There is, of course, the broader moral issue of whether or not the state should have a state holiday for Confederate veterans, etc. That said, any arguments given in support of what the state already does in regards to the Confederacy would seem to also support the acceptance of the plate—they seem to be linked. So, if the plate is to be rejected, these other practices must also be rejected on the same grounds. But, if these other practices are to be maintained, then the plate would seem to fit right in and thus, on this condition, also be accepted.

I am somewhat divided on this matter. One view I find appealing favors freedom of expression: any license plate design that does not interfere with identifying the license number and state should be allowed—consistent with copyright law, of course. This would be consistent and would not require the state to make any political or value judgments. It would, of course, need to be made clear that the plates do not necessarily express the official positions of the government.

The obvious problem with such total freedom is that people would create horrible plates featuring pornography, racism, sexism, and so on. This could be addressed by appealing to existing laws—the state would not approve or reject a plate as such, but a plate could be rejected for violating, for example, laws against making threats or inciting violence. The obvious worry is that laws would then be passed to restrict plates that some people did not like, such as plates endorsing atheism or claiming that climate change is real. But, this is not a problem unique to license plates. After all, it has been alleged that officials in my adopted state of Florida have banned the use of the term ‘climate change.’

Another view I find appealing is to avoid all controversy by getting rid of custom plates. Each state might have a neutral, approved image (such as a loon, orange or road runner) or the plates might simply have the number/letters and the state name. This would be consistent—no one gets a custom plate. To me, this would be no big deal. But, of course, I always just get the cheapest license plate option—which is the default state plate. However, some people regard the license plate as important and their view is worth considering.


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What is the Worst Thing You Should (Be Allowed to) Say?

Members of Westboro Baptist Church have been s...

Members of Westboro Baptist Church have been specifically banned from entering Canada for hate speech. Church members enter Canada, aiming to picket bus victim’s funeral (Photo credit: Wikipedia)

The murders at Charlie Hedbo and their aftermath raised the issue of freedom of expression in a dramatic and terrible manner. In response to these deaths, there was an outpouring of support for this basic freedom and, somewhat ironically, a crackdown on some people expressing their views.

This situation raises two rather important issues. The first is the matter of determining the worst thing that a person should express. The second is the matter of determining the worst thing that a person should be allowed to express. While these might seem to be the same issue, they are not. The reason for this is that there is a distinction between what a person should do and what is morally permissible to prevent a person from doing. The main focus will be on using the coercive power of the state in this role.

As an illustration of the distinction, consider the example of a person lying to his girlfriend about running strikes all day in the video game Destiny when he was supposed to be doing yard work. It seems reasonable to think that he should not lie to her (although exceptions are easy to imagine). However, it also seems reasonable to think that the police should not be sent to coerce him into telling her the truth. So, he should not lie to her about playing the game but he should be allowed to do so by the state (that is, it should not use its police powers to stop him).

This view can be disputed and there are those who argue in favor of complete freedom from the state (anarchists) and those who argue that the state should control every aspect of life (totalitarians). However, the idea that that there are some matters that are not the business of the state seems to be an intuitively plausible position—at least in democratic states such as the United States. What follows will rest on this assumption and the challenge will be to sort out these two issues.

One rather plausible and appealing approach is to take a utilitarian stance on the matter and accept the principle of harm as the foundation for determining the worst thing that a person should express and also the worst thing that a person should be allowed to express. The basic idea behind this is that the right of free expression is bounded by the stock liberal right of others not to be harmed in their life, liberty and property without due justification.

In the case of the worst thing that a person should express, I am speaking in the context of morality. There are, of course, non-moral meanings of “should.” To use the most obvious example, there is the “pragmatic should”: what a person should or should not do in regards to advancing his practical self-interest. For example, a person should not tell her boss what she really thinks of him if doing so would cost her the job she desperately needs. To use another example, there is also the “should of etiquette”: what a person should do or not do in order to follow the social norms. For example, a person should not go without pants at a formal wedding, even to express his opposition to the tyranny of pants.

Returning to the matter of morality, it seems reasonable to go with the stock approach of weighing the harm the expression generates against the right of free expression (assuming there is such a right). Obviously enough, there is not an exact formula for calculating the worst thing a person should express and this will vary according to the circumstances. For example, the worst thing one should express to a young child would presumably be different from the worst thing one should express to adult. In terms of the harms, these would include the obvious things such as offending the person, scaring her, insulting her, and so on for the various harms that can be inflicted by mere expression.

While I do not believe that people have a right not to be offended, people do seem to have a right not to be unjustly harmed by other people expressing themselves. To use an obvious example, men should not catcall women who do not want to be subject to this verbal harassment. This sort of behavior certainly offends, upsets and even scares many women and the men’s right to free expression does not give them a moral pass that exempts them from what they should or should not do.

To use another example, people should not intentionally and willfully insult another person’s deeply held beliefs simply for the sake of insulting or provoking the person. While the person does have the right to mock the belief of another, his right of expression is not a moral free pass to be abusive.

As a final example, people should not engage in trolling. While a person does have the right to express his views so as to troll others, this is clearly wrong. Trolling is, by definition, done with malice and contributes nothing of value to the conversation. As such, it should not be done.

It is rather important to note that while I have claimed that people should not unjustly harm others by expressing themselves, I have not made any claims about whether or not people should or should not be allowed to express themselves in these ways. It is to this that I now turn.

If the principle of harm is a reasonable principle (which can be debated), then a plausible approach would be to use it to sketch out some boundaries. The first rough boundary was just discussed: this is the boundary between what people should express and what people should (morally) not. The second rough boundary begins at the point where other people should be allowed to prevent a person from expressing himself and ends just before the point at which the state has the moral right to use its coercive power to prevent expression.

This area is the domain of interactions between people that does not fall under the authority of the state, yet still permits people to be prevented from expressing their views. To use an obvious example, the workplace is such a domain in which people can be justly prevented from expressing their views without the state being involved. To use a specific example, the administrators of my university have the right to prevent me from expressing certain things—even if doing so would not fall under the domain of the state. To use another example, a group of friends would have the right, among themselves, to ban someone from their group for saying racist, mean and spiteful things to one of their number. As a final example, a blog administrator would have the right to ban a troll from her site, even though the troll should not be subject to the coercive power of the state.

The third boundary is the point at which the state can justly use its coercive power to prevent a person from engaging in expression. As with the other boundaries, this would be set (roughly) by the degree of harm that the expression would cause others. There are many easy and obvious example where the state would act rightly in imposing on a person: threats of murder, damaging slander, incitements to violence against the innocent, and similar such unquestionably harmful expressions.

Matters do, of course, get complicated rather quickly. Consider, for example, a person who does not call for the murder of cartoonists who mock Muhammad but tweets his approval when they are killed. While this would certainly seem to be something a person should not do (though this could be debated), it is not clear that it crosses the boundary that would allow the state to justly prevent the person from expressing this view. If the approval does not create sufficient harm, then it would seem to not warrant coercive action against the person by the state.

As another example, consider the expression of racist views via social media. While people should not say such things (and would be justly subject to the consequences), as long as they do not engage in actual threats, then it would seem that the state does not have the right to silence the person. This is because the expression of racist views (without threats) would not seem to generate enough harm to warrant state coercion. Naturally, it could justify action on the part of the person’s employer, friends and associates: he might be fired and shunned.

As a third example, consider a person who mocks the dominant or even official religion of the state. While the rulers of such states usually think they have the right to silence such an infidel, it is not clear that this would create enough unjust harm to warrant silencing the person. Being an American, I think that it would not—but I believe in both freedom of religion and the freedom to mock religion.  There is, of course, the matter of the concern that such mockery would provoke others to harm the mocker, thus warranting the state to stop the person—for her own protection. However, the fact that people will act wrongly in response to expressions would not seem to warrant coercing the person into silence.

In general, I favor erring on the side of freedom: unless the state can show that silencing expression is needed to prevent a real and unjust harm, the state does not have the moral right to silence expression.

I have merely sketched out a general outline of this matter and have presented three rough boundaries in regards to what people should say and what they should be allowed to say. Much more work would be needed to develop a full and proper account.


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Please support Alexander Aan

You can sign this important petition over here on the White House’s site. I’m surprised to see that it has only about 7,000 signatures, and will lapse at this rate. It needs a total of 25,000 signatures in the next week for anything to happen.

The petition:

Earlier this year, Indonesian civil servant Alexander Aan posted on Facebook that he doubted the existence of God. He was then attacked and beaten by an angry mob, and arrested for blasphemy.

On June 14, Aan was convicted of “disseminating information aimed at inciting religious hatred or hostility,” sentenced to 30 months in prison, and saddled with a large fine. Now many Indonesians are calling for his death.

By punishing Aan, Indonesia is violating its obligations to the International Covenant on Civil and Political Rights, which guarantees every person the rights to freedom of belief and expression. We petition the Obama administration to call upon the Indonesian government to immediately release Alexander Aan and improve its protections for religious dissidents and nonbelievers.

We can all get behind this, can’t we? Regardless of any other religious, ideological, or philosophical differences. This is about as fundamental an issue of freedom of speech, thought, and belief as we’ll find anywhere.

Alexander Aan case

Just briefly, I care enough about this case to have joined the letter-writing campaign … and it’s possible that you will, too. If you want to know more, go here (a post on my personal blog, which I won’t repeat in full) – and follow the further link, where you can write a letter in whatever terms you see fit.

This is about the guy who is in jail in Indonesia for expressing his atheist views, and criticising Muhammad, on Facebook.

Disclosure. Deception. Duplicity. Defamation.

Here in Australia there is an interesting debate going on around the views of Melinda Tankard Reist (“MTR”), a high-profile anti-abortion and anti-pornography activist, and Jennifer Wilson, a relatively obscure (at least until now) blogger and occasional online op.ed writer. The dispute blew up in public when Wilson received some kind of letter of demand, with a threat of defamation action, from MTR’s lawyers over some highly critical comments on Wilson’s blog.

The comments included claims to the effect that MTR is driven by conservative theological views that merit our opposition, and that she is duplicitous and deceptive in not disclosing her religious motivation. Rather, Wilson alleged, she seeks to create a false impression that she is associated with the secular feminist movement. These claims were expressed somewhat more colourfully and the attack on conservative Christian views of women and sexuality was detailed. If you want to follow the brouhaha that was triggered by the action taken to date by MTR’s lawyers, a good place to start is over on Twitter, where you can search for the hashtag #MTRsues. This will lead you to many tweets, blog posts, and articles in the mainstream press – all commenting on aspects of the dispute.

My own disclosure: generally I am sympathetic to Wilson. I don’t think this was an appropriate occasion to invoke defamation law; I am concerned about the way defamation law can chill public debate on matters of policy; and I am especially worried about the opportunities for public figures, who usually have sources of funds for legal action available to them, to bully bloggers, who may be in no position to defend themselves in the civil courts – legal costs are enough to put most ordinary people’s life savings at risk and possibly ruin them financially. I’d like to see defamation law progressively tightened as far as possible, and to be restricted to rather egregious cases. If the matter ever goes as far as defamation proceedings being issued, I’ll be contributing some small sum towards Wilson’s costs and I’ll see if I can help in any other way. This is not because I know Wilson or have any particular bias towards her as an individual – before the dispute blew up a week or so back, I’d never even heard of her! It is squarely because of concerns about freedom of speech.

Other issues include the content of the word “feminist” and its cognates. In particular, can you be a feminist while opposing abortion rights? That raises a deeper issue of what feminism actually is, something that might be rather difficult to be sure about by now, with so many different feminisms having proliferated. There’s been much back-and-forth about this.

But for the purposes of this post, I want to focus briefly on another aspect – that of disclosure. Here, I’m not so sure that I agree with what Wilson has to say, or at least with all of it (though I defend to the death, or at least to a degree of personal inconvenience, her right to say it, etc., etc.).

To what extent do participants in public debate about government policy come under a duty to disclose such things as their comprehensive worldviews? Prior to the #MTRsues dispute, I would probably have said, perhaps unthinkingly, “Not at all.” My reasoning is that all we can really demand of each other is that we each put aside religious (and perhaps some other) justifications of the policies we propose. We should offer secular reasons for them – e.g. we might argue that homosexual conduct ought to be banned because it causes some kind of secular harm (and there is then a question as to whether it must be a harm to non-consenting third parties); however, it should not cut any ice with public officials if we argue that homosexual conduct should be banned because it is disliked by God, or because it is an impediment to spiritual salvation, or because it “just is” morally wrong. These latter are, as it’s sometimes put, not publicly accessible reasons. I prefer to say that they are not worldly reasons, and that worldly reasons are the ones that should motivate officials in the secular government.

However, I would have said, you are entitled to be motivated privately by such reasons as “homosexual conduct is disliked by God”, as long as you don’t propose this as a reason for the legislators. If you are prepared to enter into public debate on the basis that your publicly accessible reasons will be scrutinised on their merits, and that you will not fall back on your private reasons if the publicly accessible ones prove to be weak, then you don’t even need to reveal the private ones. Indeed, it may be better in some ways if you don’t.

I still think this is about right in an ideal world, but I now wonder how practical it is in the messy world that we actually live in. Perhaps we do get to insist that our publicly expressed and accessible reasons be assessed and debated on their merits if we have been rather purist about putting only those reasons. However, activists such as MTR tend not to be purist in that way.

I don’t know a great deal about MTR herself, and the following is not about her in particular. But, as a generalisation, political activists use all sorts of rhetorical and other methods to win people over to their various causes. This can include associating themselves with others who may be well regarded by the public, or key sections of the public; cultivating a public image, including an image of being trustworthy to the public (or key sections); attacking opponents for having biases, impure motives, etc. The list goes on. My question now is, “At least once you start campaigning in this more robustly political way, as opposed to arguing positions in a more abstract and intellectual way, how far are you entitled to keep quiet about things that would change the public perception of you – things such as any unstated motivations that you might have, your comprehensive worldview, etc.?”

It looks to me as if we should demand at least some level of disclosure from the more “robust” types of high-profile political activists (though not, perhaps, from academics, for example, if they take a more “purist” approach such as described above). I don’t have a strong or dogmatic opinion on this, but I do suspect that my view before the #MTRsues dispute made me think about it was a bit naive. What d’ya reckon?

Telling People to Shut Up

A little while ago I started to write a book for Continuum called, Identity Crisis: Against Multiculturalism. Its basic thesis is – or would have been – that the sort of multiculturalism practised in the UK is misguided and dangerous because it inevitably exacerbates the all too human tendency to divide the world into “people like us” and “people like them”.

I say “would have been” because it is now very unlikely I’m going to complete it. There are a number of reasons for my (almost a) decision to abandon the project, but the main one has to do with the rise of the EDL in the UK. Basically, I think the emergence of the EDL has changed the moral calculus here: it is one thing to write a book that is critical of multiculturalism when multiculturalism is getting a free pass, it is quite a different thing to write such a book when minority groups are under systematic and concerted attack by a bunch of racist, football hooligans. Of course, this is a judgement call, and I can quite see how somebody else might come to a different determination: a reasonable person could easily think that I’m wrong to abandon the project for this reason.

Okay, so why is this of any interest? Well, imagine a world in which I’m a blogger at Socialist Unity (okay, that’s a stretch even for a thought experiment), and in this world “Jeremy” has decided to go ahead with the book. In this situation, if I found out about “Jeremy’s” decision, would I be justified in publicly urging him not to write the book (assuming I agree with the real-world Jeremy that the book is a bad idea in the current political climate)? In other words, if I thought he wasn’t helping in going after multiculturalism, would I be justified in telling him to shut up?

My view is that it isn’t at all clear that I wouldn’t be justified. It doesn’t seem implausible to think that any justification of a speech act has to take into account its perlocutionary effects (which is part of the reason why this whole tone troll meme is so absurd). It would seem to follow from this that if there were reasonable grounds for supposing that some particular speech act – or a book length variant – is likely to have bad effects, then I have a prima facie moral reason at least for urging silence. This is pretty obvious stuff: if I know that somebody is about to shout “fire” in a crowded theatre, and I think a stampede will likely be the result, then I am surely justified in urging the person to keep their trap shut.

Obviously there is complexity here. There are freedom of speech implications, for example: so, for instance, if one takes the naive act utilitarian view that every speech act must be justified by its particular consequences, then an individual or group can shut down all criticism just by making the consequences of such criticism sufficiently bad. And, of course, there are also complications to do with the absence of perfect knowledge: we can’t know with certainty what the outcome of any particular speech act is likely to be, etc.

But, in a way, the complexity is precisely the point. Reasonable people can disagree in good faith about the wisdom of writing a book, employing a particular rhetorical style, or articulating a particular speech act. They can do a proper moral calculus, and come to a different conclusion. They can be attentive to the same evidence, worry about the same moral issues, and come to a different determination.

If one accepts this point, how should one react if somebody else suggests that perhaps one ought not to write a book, or that one ought to tone down some rhetoric, or go easy with some criticism?

Well, at least one answer, which in my more pious moments I’m inclined to favour, is that one should ask whether their request – or even demand – has any merit. Are their concerns legitimate – can you see what they’re worrying about? Is their position held in good faith (since even if you think they’re mistaken, this is a relevant datum in terms of how one should view their character, etc)? Does their position have at least some evidential merit? In other words, one should react in a spirit of rational enquiry – after all, it’s possible they’ve got a point, and it’s possible that a lot is riding on getting things right.

How one should not react is simply to assume that they are beyond the moral pale because they make the request or demand. Sometimes, shutting up is the best option. And sometimes telling people to shut up is morally justified (and perhaps even obligated).

Is Spending Speech?

West face of the United States Supreme Court b...

Image via Wikipedia

A while back the Supreme Court of the United States ruled that campaign finance spending limits violates free speech. This ruling seems to rest on two key assumptions. The first is that corporations are persons and are thus entitled to free speech. The second is that spending is a form of free speech and that it should not be limited.

In regards to corporations being persons in regards to free speech, this would seem (as I have argued elsewhere) to entail that they must be treated as persons across the board. This, as I have argued, would seem to lead to absurdities that thus expose the absurdity of treating them as persons in this regard. Naturally, there can be good reasons for allowing collective rights-but these do not require that the entity be regarded as a person but merely as a collection of people.

Also, there is the obvious concern that granting corporations rights is unfair because it gives groups an extra advantage over an equal number of unincorporated individuals. For example, if a corporation has 500 members, they can make 500 contributions to a candidate and also another contribution as the corporation. 500 individuals can make 500 contributions, but they do not get that extra corporate contribution. To use an analogy, imagine a store is having a special in which each person gets a free item (like a small ice cream cone). If three individuals go to the store, they each get the item. But, if there are three people who form a corporation, they would get three items plus a fourth for the corporate person. That seems rather unfair. As such, taking corporations as people seems to be a system of miraculous multiplication-it creates extra super-people out of a collection of normal people. This seems both questionable and unfair.

In regards to spending being free speech, that seems slightly dubious. Suppose that spending money for political purposes is considered speech. Now, it is clearly acceptable to try to persuade a politician by speaking to him or her. If spending is speech, then I should be able to try to persuade  politicians by speaking to them with money. However, this sort of thing already has a name, specifically bribery. But, if spending is a form of free speech, it would seem that bribery should be acceptable as a form of free speech. This seems absurd, to say the least.

It might be countered that the contributions cannot be direct bribes in that there can be no direct giving of money in return for specific actions or promises to act. However, it would be extremely naive to believe that campaign financing is not intended to do just that-namely to influence behavior by providing money and support.

However, suppose that spending is taken as a form of speech and thus protected by the right of free expression. It does not, of course, follow that such speech should be free of limits. After all, limits are justly placed on speech in other cases. The stock example is the yelling of “fire” in a crowded theater in which there is no fire. In the case of unlimited spending by corporations, this does serious harm to the political process by increasing the influence of corporations far beyond the number of people who make them up and thus proportionally decreasing the influence of those who are not in control of corporations. To use an analogy, it is on par with having a public discussion in which the people controlling corporations are allowed to use sound systems up on the stage and individuals are expected to try to shout out their views  from the crowd.

As might be imagined, I believe that it is a mistake to allow corporations such unlimited spending.

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Freedom of (Angry) Expression

After the terrible shootings in Arizona, some folks rushed to use the spilled blood as fuel in their political machines. Some hurried to blame the right, especially Sarah Palin and her infamous map of “surveyor symbols.” Others leaped to place the blame on the left.

Among the more reasonable folks and experts the consensus arose that the shooter was motivated by neither the right nor the left. Rather, he seemed to have made his choice under the influence of his own troubled mental states. As such, the blame seems to rest (as it should) primarily on the person who pulled the trigger. This incident did, of course, raise legitimate concerns about various relevant issues such as whether or not more laws should be created in the hopes of preventing another incident like this one.

Some people do, of course, want to pass laws against  speech containing violent rhetoric and images that are suggestive of violence-at least when these are directed at politicians.  The hope is, naturally enough,  that such laws will help prevent future incidents.

Those who traffic in angry rhetoric were quick to angrily denounce such proposals as violating their right to free expression. While I am not in agreement with the angry rhetoric, I do agree that such laws would tend to violate that right. I also contend that such new laws are neither needed nor desirable.

One reason to not add new laws is the obvious fact that actual threats of violence are already against the law. As such, there does not seem to be a compelling need to add new laws to make illegal what is already illegal.

However, some of the suggestions involve laws that go beyond outlawing actual threats. The idea seems to be that new laws should cover vaguely threatening rhetoric and suggestive images.

While this might have some appeal, to expand the laws to restrict expression that might merely be seen as vaguely threatening or suggestive of violence (like cross hairs on a map) would seem to infringe too far into the freedom of expression without adequate justification. After all, restricting the freedom of expression requires justifying that restriction-typically on the basis of harm or potential harm. Something that merely seems threatening or suggestive does not seem to be harmful enough to warrant such a restriction.

These two points could be combined into something of a dilemma: if an act of expression is an actual threat, then it is already covered by existing laws and hence no new law is needed. If an act of expression cannot be classified as an actual threat, then it would seem to be protected by the freedom of expression and hence no new law is needed. Thus, there would seem to be no need for new laws in this area.

There is also the practical concern that laws vague enough to cover what is vaguely threatening or suggestive of violence could easily be misused by politicians against their opponents and critics. This would, as some have said, have a chilling effect on free speech.

In light of these reasons, it would seem that no new restrictions on expression should be made into laws. This, oddly enough, puts me in agreement with folks who want to continue to use angry and violent political rhetoric. However, I do disagree with them in a key way.

While I do agree that people should be free to spew hateful rhetoric that does not cross over into actual threats and incitements to violence, I also believe that people should tone down the violent rhetoric and the anger. At the very least, people should consider whether their anger is proportional to reality. Political discussion and the general good are not well served by vitriol. They are not aided by disproportionate anger. They are not enhanced by rage. While we do have disagreements, we should remember that we are not blood enemies and that we can discuss our differences in a rational way, free of allusions to violence. Before sputtering in rage, we should think of those people lying dead on the tar and temper our words. After all, their blood shows us the true fruits of hatred and rage.

My point is, of course, that there is an important distinction between what people should be allowed to express and what they should choose to express. To use an analogy, there should be no law that forbids spouses from referring to each other as “whore”, “sh@thead” and so on. However, spouses really should not use such language with each other. Likewise for the angry rhetoric-people have the right to use it, but they should really consider not doing so.

Virtual Violence & Children

World of Warcraft: Wrath of the Lich King
Image via Wikipedia

While there is more than enough real violence in the world, the Supreme Court of the United States is turning its attention to a law suit regarding California’s law that regulates the sale of violent video games to minors.

Being a gamer, I am well aware of the sort of extremely violent content of certain video games. I am also aware that games, like movies, come with a rating that makes it fairly clear as to what sort of content the game features. However, the age based rating system does not actually prevent younger people from buying the game. So, for example, a nine year old could walk into a game store and walk out with a video game rated for mature (17+) audiences and then spend the rest of the day killing virtual hookers and stealing virtual cars. Assuming, of course, that he was allowed to do so by his parent(s) or guardian. Not surprisingly, this possibility does raise some legitimate concerns.

The focal point of the conflict is between free expression and the notion that the state should protect children from possible harm.

On the side of freedom of expression, the concern is that imposing restrictions based on the content of video games would be a form a state censorship and thus an imposition on the legitimate rights of game makers and their customers. Since there are very good arguments for freedom of expression and freedom of consumption (as usual, I defer to Mill here), the case against restricting the sale of violent video games to minors seems to be rather strong.

Of course, those who favor such restrictions can also make a strong case. After all, there are legitimate concerns that violent video games can influence the behavior of children and have other negative consequences. Perhaps the strongest foundation for banning such sales is that children are generally regarded as lacking the same rights as adults when it comes to consuming potentially harmful products. To use some obvious examples, children cannot legally purchase tobacco, alcohol or pornography. If violent video games fall into the category of being harmful and suitable only for adults, the arguments against allowing children to buy smokes, booze and porn can thus be employed against violent video games. In general, a reasonable case can be made that children should be subject to more restrictions than adults-even Mill takes this view. At the very least, children are far less capable of making rational decisions and tend to be more vulnerable than adults (of course, adults can be irrational and vulnerable as well).

One obvious concern is that if censorship is permitted on the basis of violence (something Plato would agree with) then this opens the door to more restrictions. For example, I am looking at the warning label on Wrath of the Lich King and it warns me that in addition to blood and gore the game features suggestive themes and the use of alcohol. Perhaps the next step will be to limit games that have such content. Then the next step might be to restrict movies or even books that mention such things. This is not, of course, a slippery slope argument. Rather, it is a matter of precedent: if the sale of video games can be restricted based on content, then this would seem to extend logically to other media, such as books.

Of course, video games do differ from other media in that they are interactive and this might entail that they have a stronger influence on children. So, for example, being the one to virtually run over hookers in a stolen  car would have more impact than merely reading about a person running over hookers. Or seeing a story on the news about people being killed for real. Or living in a violent world. This interactivity might provide the basis for a relevant difference argument and a way to prevent (if desired) a slide from video games to other media (such as books).

Another avenue that the video game censors have gone down is that of pornography. As noted above, minors cannot legally buy porn. If it is right to ban the sale of porn to kids, then the arguments for this can probably be modified to argue against allowing kids to buy violent video games. Not surprisingly, Plato argues for banning material relating to both violence and lust. His argument, oversimplified a bit, is based on the corrupting influences of such material. Of course, Plato argued for a comprehensive ban and not just a restriction on selling to minors. This does lead to the obvious question: if something is too harmful to sell to children, then might it not be too harmful for adults as well? Of course, the usual counters are that adults should have the liberty to harm themselves (as per Mill) and that adults are better able to resist the nefarious influence of such things (or that it is okay for adults because they are adults).

I am somewhat divided on this issue. On the one hand, I am for freedom of expression and consumption. Hence, my general principle is to oppose such censorship/restriction on the basis of liberty (availing myself of Mill’s arguments). On the other hand, having played video games such as the  Grand Theft Auto games I am aware that some games feature content that strikes  me as inappropriate for kids. For example, a friend once asked me if she should get Grand Theft Auto III for her son. Without hesitation,  I said “no.” My reasoning was that a young kid lacks the intellectual and emotional development needed to confront such violent and sexual content. I did see the irony in this: a person should be mature before playing what might seem like a morally immature game. However, I believe that I gave the right advice and would follow the same approach if I had kids of my own. Not surprisingly, things change a bit when one switches from rights in the abstract to what, for example, your own child will be playing.

There is, however, still the question of what the state should do. After all, there is a distinction between what I would suggest to my friends who have kids and what I would want to be a matter of law. For example, I think that kids should not eat junk food all the time, but I would be against a law banning the sale of junk food to kids. Rather, this is something that the parents (or guardians) should handle. While junk food is not healthy, the danger it poses is not so immediate that the compulsive power of the state is required. Rather, this seems best suited for parental control. In short, the burden of proof rests on those who would extend the power of the state.

In the case of video games, I take a similar view. While I do recognize that video games can (like junk food) things that are not so good, they do not seem to present a clear an immediate health threat that requires the imposition of the compulsive power of the state. Rather, this is a matter that seems to be more suited for parental control.

It might be replied that some children do not have adequate supervision and hence might just buy violent video games and play them. However, I am inclined to be more concerned that the children lack such supervision than with them playing a violent video game. In fact, if that is the worst they do, then things could be far worse.

It might also be argued that children would simply buy such games and play them without their parents being aware of it. Hence, making the sale of such video games illegal would provide an extra barrier between the kids and the content of the games. While this does have some appeal, kids can easily bypass this. After all, if they have their own money to buy video games, they can buy them online or get someone else to buy them. As such, the protection value of such a ban would seem to be rather minimal if the parents are, in effect, unable to supervise their children.

As such, I hold that the sale of such video games should not be restricted by law. However, I do think that making the nature of the content clear so that parents (and others) can make informed choices is a good idea. I also hold that parents should male responsible choices about what games their kids play. Of course, what counts as a responsible choice is a matter for another time.

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Funerals, Freedom, and God Hates Fags

The Westboro Baptist Church picketing at the m...

Fred Phelps, best known for “protesting” at military funerals by alleging that God is killing soldiers because He “hates fags”, is involved in a case that will be heard by the United States supreme court. A few years ago, Albert Snyder sued Phelp’s church for its “protest” at his son’s funeral and won a $5 million settlement. This verdict was recently reversed on the grounds of the First Amendment. While the legal issue will be hashed out by the supreme court, the ethics of the situation are philosophically interesting.

As I have argued in other blogs, it seems reasonable to accept that people have the right to freedom of expression. While I am not a committed utilitarian, I think that Mill makes an excellent case for this freedom in his work on liberty. Allowing free expression certainly does seem to consistently create more good than harm, and this seems to justify accepting it as a general moral guide (with some notable exceptions).

Of course, it also seems reasonable to accept that people have a right to privacy. This includes not just a right to not be infringed upon by the state, but also the right to not be intruded on by other private individuals. As with the right of expression, this right can be argued for on utilitarian grounds. It can also be argued on other grounds, but I will not go into such arguments.

The case involving Phelps is a case in which these two freedoms or rights clash. The general moral problem here involves sorting out which right or freedom trumps the other and the specific problem is whether or not  the right of free expression of the “protesters” outweighs the right to privacy of the people involved with the funerals.

My initial thought, prior to deep reflection, is that the “protesters” do have the right to engage in their activity, provided that they remain on public ground and do not actually interfere with the funeral by disrupting the event itself. However, my initial thought is that they should not be doing such a thing, because it is cruel and insulting. As such, I think people should have a right to say mean and hateful things but that they should not exercise that right.

Upon reflection, I found that I came to the same results.  As part of the process I considered the various grounds on which a person’s freedom of expression can be justly limited. While this is rather oversimplified,  the general principle  is based on the principle of harm: unless the expression can be shown to create a significant and unwarranted harm, then the expression should be allowed. This is what justifies denying people the right to shout “fire” in crowded theaters and the right to engage in slander.

Of course, it could be argued that Phelps and his cohorts are actually causing emotional harm and this justifies silencing them. I can imagine what it would be like trying to bury a son, daughter or parent while hate filled people are screeching such horrible things. I would be outraged at their insensitivity and appalled at the wickedness in their souls. I would be deeply hurt that my loved one was laid to rest to the sounds of foul mouthed vultures cursing and carrying on in their mad rage. I would want them to fall silent and leave, preferably after being tased.

However, considering the matter in the light of calm reason, I must argue that we have no right to silence these “protesters.” The fact their words and actions offend, even deeply and profoundly, is not adequate grounds for silencing them. After all, adopting the principle that people have no right to expression that others find offensive would restrict the freedom of expression in a very harmful way. To use but one example, some people find the idea that women are entitled to equal rights to be deeply offensive to their religious values. However, it would not be right to restrict people from saying such things. Roughly put, we have no right to not be offended.

That said, I still hold that although they have the right to express such ideas, they should not do so. Doing such things at a funeral is disrespectful and insulting to the dead and those who care about them. It is, to say the least, a wicked action. But, it is also one that should be tolerated.

Of course, this does not mean that there should not be restrictions placed on such “protests.” After all, those at the funeral have a right to not have their somber moment sullied by such “protests.” As a practical matter, they should be required to be out of sight and sound of the funeral ceremony. This does not interfere with their right to express their ideas-after all, they do not actually need to disrupt the funeral in order to express their views. After all, we have no right to needlessly annoy people.

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