Why I think xkcd is wrong about Free Speech

Xkcd’s “free speech” cartoon is widely cited in defence of various forms of popular censorship. However, I think it contains significant errors and weaknesses, which I will discuss in 3 sections below.

Key Points (for the tl;dr crowd): Governments can arrest you for what you say; “free speech” is a broad principle, and the 1st Amendment is not its full manifestation; non-governmental actions can impinge upon meaningful free speech, and may potentially do so via boycotts, black-lists and bans.

Surprised? Read on…

1. The U.S. Constitution

The xkcd cartoon conflates the particular and narrow protections of the 1st Amendment of the U.S. Constitution with the older, broader, more general (and, if we’re honest, somewhat nebulous) principle of freedom of speech.

It is a great mistake to imagine that these things are the same. Doing so ignores the existence of non-governmental forms of censorship, including corporate censorship (e.g. internet filtering), and popular censorship via the tyranny of the majority — or, for that matter, the tyranny of powerful minorities!

It also ignores the 7 billion people (a mere 95% of the global population) who aren’t technically under United States jurisdiction, but who may nevertheless entertain their own eccentric notions of “freedom”.

To claim therefore, as xkcd does, that “the right to free speech means that the government cannot arrest you for what you say” is simply wrong, in multiple respects.

The U.S. Constitution does not define, and certainly does not encompass, “freedom of speech”: it merely refers to that pre-existing and separate concept, for which it then declares some limited legal protections (i.e. “Congress shall pass no law […] abridging the freedom of speech”).

Now, if xkcd’s claim had been, more specifically, that “the 1st Amendment means that the U.S. government cannot arrest you for what you say” it would… wait for it… still be wrong!

Agents of the U.S. Government can, have, and do arrest (and jail) people for what they say. This is not mere pedantry. It is, in fact, vital to the question.

For example, during World War I, Kate Richards O’Hare, Charles Schenck, and others were jailed for the “crime” of speaking out against conscription, and Robert Goldstein was locked-up for making a film. All of this was done under the Espionage Act, which is still on the books, and was also used to prosecute the whistle-blowers (or is that “traitors”?) Daniel Ellsberg and, more recently, Chelsea Manning and several others.

And, of course, you can be arrested in the U.S. for copyright violations, contempt of court, libel, slander, obscenity, “true threats,” or speech that “incites imminent violence or law-breaking”. Legal restrictions on speech are, in fact, numerous — and, perhaps, inevitable. The cartoon, however, ignores this important reality.

2. So, what is “freedom of speech”?

Coherent definitions of free speech are actually rather hard to come by, but I would personally suggest that it’s something along the lines of “the ability to voluntarily express (and receive) opinions without suffering excessive penalties for doing so”.

This is a liberal principle of tolerance towards others. It’s not an absolute, it isn’t comprehensive, it isn’t rigorously defined, and it isn’t a law.

Nevertheless, attempts at codification do exist. For example, Article 19 of the Universal Declaration of Human Rights (1948) says: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (Although restrictions may exist in practice).

However, such freedoms are not entirely in the gift of governments. They can be inhibited by other citizens too, acting completely within the law, as in the case of boycotts. Xkcd makes a blanket claim that boycotts do not violate free speech. I don’t think that’s always true, especially in cases where they deprive people of their livelihoods.

If the whole village refuses to trade with someone who expresses an unpopular opinion, the dissenter is clearly put under extreme social pressure to conform. They are, therefore, not free to speak as they would wish.

John Stuart Mill, in the classic text “On Liberty”, observes the need for protection “against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil [i.e. legal] penalties, its own ideas and practices as rules of conduct on those who dissent from them”.

He explains that “opinion, on this subject, is as efficacious as law; men might as well be imprisoned, as excluded from the means of earning their bread.”

“And thus is kept up a state of things very satisfactory to some minds, because, without the unpleasant process of fining or imprisoning anybody, it maintains all prevailing opinions outwardly undisturbed, while it does not absolutely interdict the exercise of reason by dissentients afflicted with the malady of thought.”

“But the price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind.”

Or, as Albert Einstein put it in his essay “On Freedom” (1940), “laws alone can not secure freedom of expression; in order that every man present his views without penalty there must be a spirit of tolerance in the entire population.”

3. Private Property, Platforms, and Protection from Pricks

In saying all this, I do not deny the existence of private property rights; nor do I claim that everybody should be entitled to say anything, in any forum, by any means, at any time, without any consequences. I am neither an absolutist nor an imbecile, and I recognise that there are practicalities and trade-offs involved, as with most things.

It has been said that “freedom of the press is a privilege reserved to those who own one”, but shouldn’t one of the great liberating consequences of the internet be that it can make almost everyone the “owner” (at least by proxy) of a personal mini-press… even if they use it to publish stupid and annoying drivel?

Many people have argued for the importance of “net neutrality” and against allowing Internet Service Providers (or governments) to arbitrarily censor content as it flows over the wires. Social-media companies such as Facebook and Twitter are not quite in the same fundamental category as ISPs, but they do take on a similar role in practice as important communications platforms (especially for non-experts who are unable to set-up their own servers etc.) — In this sense, they are a bit like the postal service or the telephone system.

And, although I’m not arguing that private entities such as these should be unable to kick people off their services, I think there is a good case for urging caution, and looking into less punitive means of dealing with troublesome users.

It seems to me that one of the main (and legitimate) concerns in this debate is the problem of unwanted communications intruding into one’s own personal sphere. I feel that a sensible non-censorious approach to that could be to enable voluntary filtering by the receiver e.g. if you are being mobbed by a bunch of twits, just “raise shields” for a while to automatically filter-out negative sentiment or messages from people you don’t already know.

Online discussion forums could potentially implement systems like this, especially if they wanted to present themselves as being “the free speech wing of the free speech party” (as Twitter once did), and not as some kind of privileged group that gets to decide who is “an asshole” and then takes it upon themselves to arbitrarily “show them the door”.

Is this a good idea for a Start-Up, maybe? Do you want to try fleshing-out the details and implementing it yourself?

Feel Free.

PS: Some clarifications and responses to feedback:

It has been suggested that, by referring to the “right of free speech”, the comic is explicitly restricting itself to purely legal matters. I cannot entirely accept this. The meaning of “rights” is a subject of some debate, but the idea that it includes broad matters of “social convention” or perceived “moral rights” seems widespread and legitimate. If only “legal rights” were meant, that could easily have been specified.

Also, even if the phrase “legal rights” is used instead, some problems remain (including bald errors of fact regarding government arrest, which, to re-iterate, I do not accept as being mere “pedantry”). Furthermore, to simply exclude any consideration of “non-legal rights” from this discussion seems disingenuous, and in conflict with common definitions and historical precedents.

Finally, as is hopefully obvious, although I refer to “free speech” throughout the text, I am of course discussing more than just literal speech e.g. I include writing, printing, wearing a slogan t-shirt or “political symbol”, or engaging in acts of “expression” generally. This usage seems like such a common one that I didn’t feel the need to discuss it in the main text, but am choosing to do so here to make it absolutely clear.