a follow up to “Free Speech and the Paradox of Tolerance”
Julia Serano

Who Should Have the Power to Censor?

Your point is well-taken that certain speech may indirectly harm others’ freedom of speech, which may justify limiting their speech to improve societal freedom and justice. However, I have some questions. What methods to limit their speech are just? And who should have the power to decide when to censor?

For both questions, I recognize there is a distinction between social sanction, such as criticism and protest, and formal (or legal) sanction, such as civil or criminal punishment. Generally, I could support social sanctions, but would be very concerned about formal sanctions.

When limiting someone’s speech, are there just and unjust methods to limit their speech? To take an extreme example, if we knew that Yiannopoulos intended single out an individual for ridicule and potential harm, it would still be wrong to shoot him to prevent him from speaking. Yet if this is true, then was the lesser violence of punching Richard Spencer just? My concern is that even when using violence to condemn and prevent violent speech, that use legitimizes violence as a political tactic.

This issue is part of what motivates my hesitation towards formal sanction. Judicial injunctions work because they have the implicit threat of state power behind them. I recognize that there are already cases where we accept procedural violence through the judicial branch, like the much-used shouting ‘fire’ in a crowded theatre.

However, if violence is a just response, then what amount of violence is acceptable? If breaking windows to stop Yiannopoulos’ speech is fine, then would greater violence have been? Would it be just to commit greater violence than he intended?

Per the second question, who should have the power to decide ‘edge cases’ of intolerant speech? The answer clearly varies depending on the type of sanction, but there must be a mechanism to trigger the sanction, whether automatic or discretionary. Formal sanction would empower institutions to levy sanctions. These institutions may be the judicial branch of government, but may also be corporations or universities.

In all cases, can we give them this power without also giving them the ability to misuse it for their own benefit? For example, if the government can label speech intolerant and censor it, then the government may use that to label criticisms of favoured groups or even itself as intolerant. Facebook or Twitter may have the legal right to remove any user from the site, but I worry about the implications of trusting self-interested corporations to be responsible censors.

Finally, for social sanction, how can we separate legitimate criticism from the ‘heckler’s veto?’ Your argument seems to suggest that we should not just protest these speakers to register opposition, but that we have a duty to prevent them from speaking. Yet this duty goes back to the question of violence. If it is just to use protest, threats, or violence to prevent someone from speaking, then do we not legitimize the use of violence against us?

If this is the case, then those who will win are those with the greatest capacity for violence. Those who will win are those with power.

I admit that I don’t have the answer to these questions. Limiting power that seeks to oppress and marginalize people should be the first step to creating a just society. Yet legitimizing unchecked power is not the right solution. I believe that rights are our bulwark against power, so we cannot merely tear down others’ rights without reinforcing access to them for all.

This may be part of your next essay, but how would you resolve this conflict?