A Demand for Symmetry in the Legal Treatment of Speech

“Freedom of Speech”, by Normal Rockwell [1943]

[Disclaimer: I am an admitted and unrepentant “Speech Bro”, and I am also every bad thing there is, so any accusations that I am a “Speech Bro” and/or every bad thing are pointless repetition and will receive no response. Also, anyone who accuses me of being a Very Bad Person given my views on free speech is a dues-paying member of the National Socialist German Workers Party from 1933 to 1945 and is personally responsible for all crimes committed by the Third Reich. Attempting to deny this fact is proof of guilt, as is questioning the careful reasoning that has gone into this accusation/verdict.]

This is a quick thought I want to get out into the online aether before I forget. There’s not a lot to argue so I’ll lay it out briefly:

With the metastasis of neoliberal essentialist-identitarian cultural Left discourse from the campus out into the popular and political realm, there are increasing demands for certain types of speech to be criminalized as “hate speech”. This is much further advanced in other developed Western countries such as those of the European Union and Canada, with the United States being a relative hold-out. Recently, even the American Civil Liberties Union (long the subject of derision by the neoliberal identitarian Left for its robust defense of the inherently oppressive “white supremacist cis-hetero-patriarchal” legal achievement known to normal people as the First Amendment) has backpedaled on its previously principled stance and seem as an institution to be questioning whether free speech is really worth facing down the Twitter mob over after all.

One form of speech that is not protected under the First Amendment is any kind of incitement to violence. Calling for violent action against a particular individual is regarded as an unprotected speech act and can carry legal sanction, even in the United States. From what I can tell, this principle seems to be the basis of legal attacks on free speech in countries with more “enlightened” takes on speech than the relatively hardline American one. That is, any and all “discriminatory” or “exclusionary” language is taken to be the beginning of an almost ineluctable causal chain leading straight to Auschwitz. Because of the almost magical power of such language to more-or-less force others to genocidal mania (even though the speech act itself may not contain any explicit calls to violence against anyone), it is considered right to punish those engaging in such speech with legal sanction in order to avoid a second Holocaust. As far as I can tell, while the American legal tradition isn’t as “creative” as the Western European or Canadian model on this point, it does share the basic assumption that certain types of speech categorized as “incitement” can have some sort of causal relationship with violent actions taken by others, and are therefore the legitimate object of legal sanction.

Now the law is inherently embedded in politics and is not a neutral framework by any means, but fine, let’s take it on its own terms. If we are going to treat certain types of speech, such as incitement, as if they have a causal impact on the behavior of others, then shouldn’t having heard such instances of speech be counted as a mitigating circumstance when one commits the crime being urged by the speech act? This principle is already operative in the domain of “fighting words”, which can be taken into consideration in court and mitigate the punishment for those accused of having committed assault (i.e., if someone insults my mother, my punishment for punching him may be lessened from what it would otherwise have been). If such exception from the usual degree of punishment can be made in the case of “fighting words” (presumably because of some causal connection between the utterance of the “fighting words” and my reaction to them, which mitigates my responsibility for my actions), why doesn’t this apply in the case of, say, an assault committed against the victim of an incitement to violence? If there is some causal connection between an act of incitement and an act of violence committed by someone having been incited (again, presumably the reason we punish incitement), shouldn’t that mean the incited party committing the violent assault is at least somewhat less responsible, as they were causally affected by another to act as they have? Do they then deserve a lighter sentence than if they had not heard the incitement to violence? Is, for example, a far right-wing terrorist who commits a mass shooting after reading violence-inciting posts on Stormfront deserving of a lesser punishment because such posts somehow “caused” or “necessitated” his actions?

I’d like to make it clear that I don’t actually think this conclusion makes any sense whatsoever. It’s a reductio ad absurdum, which I think demonstrates the utter ridiculousness of laws against speech acts. To treat speech acts such as “incitement”, “fighting words”, or “hate speech” as criminal offenses necessarily detracts from the legal recognition of personal responsibility for one’s actions, as it pretends such speech acts can bear a causal relation to violence committed by others, and so partially exculpates violent actors of guilt for their own actions. Whether this is borne out consistently in practice is one question; another question is how the logic (even if unevenly applied) of such a legal principle informs the construction of the social subjectivity of citizens, in a more or less internally or externally understood locus of control. I think it’s a huge mistake to unnecessarily cultivate social subjects that take less than full personal responsibility for anti-social behavior. Doing so creates a “bystander effect”, wherein we feel less responsible for our own actions and therefore less likely to engage in self-governance.

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Orthodox in religion, heterodox in everything else.

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Taylor Somers

Taylor Somers

Orthodox in religion, heterodox in everything else.

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