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A Swede in Germany

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Clarifications around freedom-of-X

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Many of my discussions have concerned freedom-of-X (X being e.g. opinion, speech, action, and possibly others). There are two important points in this area that I have probably never spelled out explicitly:

Firstly, freedom-of-X does not necessarily imply the same degree of freedom for all X. If we look e.g. at opinion (as opposed to expression of opinion), there can not and must not be any limits—there is no opinion so factually or morally wrong that it should be outlawed or e.g. be worthy of a beating or brain-washing. This includes even extreme opinions like that all bald** people deserve to die. On the other hand, there are plenty*** of actions that are unconscionable**** even under freedom of action—e.g. actually killing bald people for no other reason than their baldness.

*There might, however, be opinions that are worthy of other intervention, e.g. because they are signs of delusion (“I am Napoleon”), self-threatening (“suicide is painless”), or extremely naive (“the Earth is flat”). Even here, however, the intervention must be kept sufficiently reasonable that freedom of opinion or “the right to be wrong” is not threatened. For instance, a believer in a flat Earth may be presented with arguments, but must not be harassed with them (outside a debate or similar situation), and e.g. a brain-washing attempt must not be made. Further, the possibility that the apparent loon is correct and the self-appointed educator wrong must be kept in mind. (Indeed, political activists, most notably of a PC character, often condemn the opinions of others as e.g. prejudiced, outdated, or simply incorrect, even when those opinions actually match the scientific consensus in the area—the mere conviction that “I am right and you are wrong” does not make it so.)

**An example drawing on “Mein Kamm”, an absurdist Nazi parody by Ephraim Kishon. My intention is to provide an extreme example that is not open to misconstruction (be it out of stupidity or willfully), especially since I am myself bald. However, similarly extreme opinions concerning other groups do exist in this world.

***Where to draw the border is a tricky ethical issue, well beyond the intents of this text. However, a reasonable first approximation is that what is legal is OK, what is not is not OK. (Note that this cannot be more than an approximation, since the discussion is of abstract, not legal, rights. Consider e.g. a country that allows the at-will killing of bald people or forbids saving them from drowning.)

****In this text, I use “unconscionable” to imply something so bad that it would justify e.g. legal action even in a Rechtsstaat with a great respect for freedom-of-X; and “conscionable” to refer to something not unconscionable. (Using “illegal” and “legal” outright is problematic per the preceding footnote; and might also be too restrictive.) Other texts of mine, let alone other authors, might use these words differently. I stress that e.g. an utterance deemed conscionable is not automatically “good”—it can still be rude, ignorant, expressing hatred, worthy of condemnation, whatnot.

Secondly, when we look at speech and action, it is not always clear where speech crosses over into action, and then underlies greater constraints. Consider e.g. statements like “Go out and kill the bald!”, which contains a call for an unconscionable action (an unwarranted killing).* If such statements were allowed based on freedom of speech, this opens a loop-hole in the restrictions on freedom of action, e.g. because a convincing speaker could move an easily manipulated sympathizer to take the action—and what is the ethical difference between e.g. pulling a trigger and deliberately convincing someone else to pull the same trigger in one’s stead? Clearly, then, we should not allow such speech. On the other hand, drawing the borders too narrowly could easily invalidate free speech, e.g. by preventing someone from expressing a certain opinion, discussing that opinion with others, or trying to convince them of said opinion. Here I use the guide-line that any speech that involves a direct or clearly** implied call for action should be considered tantamount to or judged equally with an action. More generally, there are other cases of speech that by their nature are not intended to e.g. state, discuss, or further an opinion, but serve a more direct purpose of influence, say a taunt intended to provoke a fight, a threat intended to force an action, the provision of (possibly false) information to change someones behavior, … These too are better grouped with actions than with “regular” speech; however, they are rarely relevant to freedom of speech outside areas where it is used as an excuse.

* Note that the example is not one that would normally give a reasonable reason to act. In contrast, a “Go out and kill the enemy soldiers that are currently attacking us!” might be perfectly conscionable. (This is another instance of a tricky-to-determine border.)

**If this restriction is not made, there is endless room for abuse along the lines of “he claimed that he only expressed his opinion, but it is obvious that he actually intended others to act”. The “clearly implied” would include e.g. a “I believe that you should all go out and kill the bald”, because an attempt to dodge the rule on a technicality can very legitimately be assumed; it would not include “the only good baldy is a dead baldy”, because there is far less reason to make this assumption and in dubio pro reo should be applied: Such opinions are often held without an intention to act (to avoid punishment, if nothing else); such statements are often made hyperbolicly.

Excursion on speech as a special case of action:
Depending on perspective, it could be argued that any act of speech is automatically an action. However, in discussions of rights, this would merge two usually distinct categories in an unfortunate manner, and I consistently use “action” to refer to a concept not including speech (except as discussed above) in such contexts. The alternative would be to introduce more specialized terms at the cost of understandability. (Of course, similar simplifications are routinely made, e.g. in that “speech” is taken to include the written word, or even some acts that are of a symbolic or communicative nature, e.g. a flag burning. Also cf. the following excursion). As a disclaimer, the “special cases” of speech discussed above might very well form the majority of uses in a more everyday context.

Excursion on kneeling footballers:
The controversy around kneeling footballers is an interesting illustration of how freedom of action, even freedom of speech, can legitimately be restricted in certain contexts. We could argue that they are only expressing their right to free speech*—and if I thought that they actually understood** what they were doing, I might even have let them be based on that, had I been a team manager, football commissioner, or whatnot. However, there are other arguments that speak against their having the right to express themselves in this manner: They are on the job, they are in uniforms proclaiming their association with an organization, they are using someone elses resources for their protest, … To consider a few similar and less controversial examples: A regular employer should*** not interfere with the employees private political activities, but may certainly ban political**** discussions in the office, during office hours (including for non-political reasons like this being a potential source of inter-team hostility or it taking away working time). A shop owner may certainly ban his employees from proselytizing towards customers and third-parties from pasting flyers on its windows. A TV station may certainly forbid its news anchors from using their on-air time to spread their own political opinions. A sports team may certainly prevent individual players from making considerable changes to their uniforms.

*As a general, abstract right. Note that free speech in the specific context of the U.S. constitution only covers rights of the people versus the government (or even a subset of it); with a similar situation applying in many other countries. Correspondingly, arguing the legality of such protests or the ban of such protests based on constitutionality is dubious.

**Some few might, but most are bound to be nothing more than “useful idiots”, who have a very skewed image of the issues, society, whatnot—most regular people do and football players are not renowned for their intelligence and erudition.

***I almost wrote “must”; however, going that far could violate the rights of the employer and/or be too lenient when it comes to extremes. For instance, a bald store-owner should not be forced to employ someone who walks around with “Kill all baldies” signs after hours. In the vast majority of cases, however, what employees do or do not do, say, and believe outside of work is none of the employer’s business.

****However, a more selective ban, e.g. that non-PC political discussions are forbidden, is far harder to defend. Similarly, if one type of political protest was allowed during a football game, it would be very hard to defend banning another, e.g. that someone were allowed to bring in a “Vote Democrat!” sign, while someone else was prevented from bringing a “Vote Republican!” sign.

As an aside, a somewhat similar line of reasoning could be attempted against a recent text on FIFA, IOC, advertising, …. However, that situation differs e.g. in that sponsorship money is a significant part of most professional athletes livelihood; that e.g. the IOC tries to earn money of someone elses* efforts and popularity through abuse of a virtual monopoly; that the behavior of these organizations is contrary to their ostensible and historical raison d’être; and that sponsors does not underlie a blanket ban**, only non-IOC sponsors. Restrictions on kneeling in the NFL, on the other hand, has no practical negative effects on the players, the NFL and its teams do not gain “unfair” income from these restrictions, there is no special treatment based on political position, etc. Even when looking at teams vs. league resp. teams vs. FIFA, the situation is different, in that the NFL (NBA, NHL, …) is in a much closer and more symbiotic relationship with the teams than FIFA—the latter earns money from the following the teams have gathered in the previous four years, while the former is in a constant state of mutually beneficial actions regarding earning potential, popularity, etc. with the teams.***

*Note the greater individual drawing power of many individual athletes in individual sports compared to team sports, as well as the greater impact on legitimacy when a major star is missing. Compare e.g. a Wimbledon without the world’s best tennis player and an NFL where the world’s best football player is missing.

**With which I would be fine-ish.

***On paper: That the one tries to get the better of the other here-and-there is likely unavoidable.

Excursion on discrimination:
Parts of the above point to the importance and benefits of discrimination, e.g. in recognizing the principal difference between “pure speech” and “speech as action” and to treat them differently. This includes being able to see through superficial similarities and inappropriate analogies.* With the constant, absurd abuse of “discrimination”, I plan to follow-up with a text on that topic within the next week.

*As a special case, contrary to the common abuse, a core of (competent) discrimination is to not just group people (or whatnot) together based on superficial criteria, but to look at the criteria that matters with regard to the individual and situation at hand.

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Written by michaeleriksson

August 3, 2018 at 12:07 am