Milo Yiannopoulos and the free speech debate

Copyright the Observer 2016
  • Update: Anew round of outrage, on both sides of the ‘free speech’ divide, has flared up because Bill Maher has invited Yiannopoulos onto his show, and Jeremy Scahill has withdrawn from the lineup as a result. Of course, Maher is explaining his invitation to Milo with, basically, “Because, free speech.” This article was written following the Berkeley incident.

In Berkeley this week, a destructive protest resulted in the university canceling a speaking engagement by Milo Yiannopoulos, who is known for his hate speech about women, African-Americans, trans people, poor people and a host of other groups. This has yet again led to a debate about free speech and whether he was ‘silenced’ as a result of the actions of protesters and a liberal elite university president.

Whenever these occasions arise, commentators on the right gleefully point out the “liberal hypocrisy” behind silencing someone for their beliefs. And commentators on the left wring their hands at the “tactical error” of meeting hate speech with what some label censorship.

So I think it’s worth considering why we think free speech is so important, what we think is worth censoring, and whether we need to reexamine the philosophical motivation for protecting speech because we might have lost our way.

I use an elaborate role-playing pedagogy in the classroom. It’s called Reacting to the Past. Today there are dozens of games, but I use one of the very first ones designed, which is centered on the National Assembly of Revolutionary France as it tries to hammer out a new constitution, in 1791.

The reason I’m mentioning this here is that the explosion of the free press during the Revolution is central to how the political factions in the Assembly (groups of students) vie for popular support and power — often the same thing. That historical moment is when the free press and free political speech exploded in size and in vociferousness. And every time students play this 6-week-long game that’s the centerpiece of my course, I’m still amazed at how quickly they become advocates for varying degrees of censorship in pursuit of their characters’ agendas. Because if you were to ask their stance on the First Amendment just as people, every student would, by rote, declare their devotion to total free speech, consequences be damned. The American freedom of speech mantra.

The free speech concept, however, has different formulations throughout the West. Loosely speaking, the United States is of one philosophy, and everyone else is of another. And part of that has to do with the different reasons why societies think speech should be a protected right.

In the US, speech is not deemed something that can cause harm, in and of itself. There has to be the additional component of inciting someone to violence in a clear and present way. This is the reason so many hate crimes cannot be interpreted as such legally. In many cases, there isn’t an immediate relationship between an expression of hatred towards an explicitly identified group and harm being done to that group or one of its members. We cannot know the mind of a perpetrator, even though we have a pretty good idea.

Elsewhere in the West, there are numerous variations on a law prohibiting speech that incites hatred. This is the logical conclusion if you are of the belief that speech itself can cause harm — that it can be a form of violence on its own. But so can silencing. In Canada, which has a relatively young constitution, the limits to free speech are clearly set out. But so are protections against unwarranted state censorship. Hate speech has to meet 7 criteria before it can be prosecuted. Or, another way to look at it, all hate speech that falls short of these 7 tests is free from any risk of censorship.

In Europe, the EU laws on hate speech also describe it as incitement to violence or hatred (with those two words coming together in the sentence, indicating that there is an assumed relationship between the two). In the European setting, unlike the US, the risk doesn’t need to be immediate. For this reason, social media giants have been made culpable if they don’t work to remove or block certain types of hate speech on their platforms. It also doesn’t have to meet the Canadian criteria of being, among other things, 1. the most serious examples of the genre (which is a great way of describing the high bar), 2. deliberate, and 3. hateful within their social and historical context.

So we can see that along a sliding scale, the US is at one end, Europe at the other, and Canada sits somewhere in the middle.

Interestingly, no matter which country in the West we’re talking about, the philosophical discussion of free speech and censorship inevitably starts with John Stuart Mill. Of course, he never considered the atomized or viral speech environment that we have today. Nevertheless, his arguments for free speech, set out in On Liberty, are still the foundation of the West’s protection of it. (Yes, the Constitution pre-dates Mill. But the arguments commonly used to defend the modern conception of free speech are strongly influenced by him.)

The thing is, Mill was a utilitarian. His measurement for the desirability of a behavior was its social good. For him, freedom of discussion needed to be protected because discussion fostered critique and improvement, which in turn strengthened society, benefiting the people. He doesn’t devote nearly as much time to what warrants censorship; however, for him, if harm resulted from speech without any concomitant benefit making the harm worthwhile, then it shouldn’t be protected simply for the sake of it.

Keep in mind, what Mill talked about was “freedom of discussion” — so he imbedded an assumption of social interaction into speech. He took the leap that no one is worrying about a citizen’s right to stand alone, in a field, and speak to thin air. He assumes a give and take, a back and forth, a dialectic through which maybe new ideas are discovered or old ones challenged and refined, so that in the end institutions are improved, and society is enriched.

And the thing is, when Americans have a knee-jerk reaction to the idea of curtailing speech, that assumption that more speech begets more ideas begets a better society, is still the source of that reaction but it’s been forgotten. We just jump right to: free speech = good.

So back to the game: My students, on the day before the game starts, would say that all speech must be allowed. But three weeks later, they are confronted with Robespierre’s demagoguery as they try to hammer out a Constitution and stabilize the country. Then they argue that newspapers calling for the people of Paris to kill members of the Assembly must be silenced, in the name of the common good. Using a public platform to incite people to commit murder is not in the interest of a healthy society, they realize.

So the whole Milo Yiannopoulos debate (or the other speaking engagements on campuses that have been canceled due to protests) can be taken up in two different ways: first, is Yiannopoulos being censored? Is his right to free speech being curtailed? And second, is there a greater good to be achieved by either making sure he can speak at Berkeley (or anywhere else), or by suppressing his speech?

In the first instance, Yiannopoulos is not being censored. He is not being told that he can’t say what he wants, write what he wants …tweet what he wants. Well, actually, that last one is where things get a bit sticky. Protected speech does not mean that others are forced to enable your speech. So if Twitter has a policy and Yiannopoulos defied it, they have a right to remove his account. If a publishing house decides not to publish his books, they have that right.

In fact, there’s a fundamental misunderstanding about the dynamics of these events. If we return to Mill’s focus on discussion rather than speech, it becomes more apparent. We must understand that the hubub itself is part of the speech, not just this moment and not just what originates with him. Yiannopoulos’ tweets, speaking engagements, and books — are one part of the discussion. And canceled Twitter accounts, protestors, or authors refusing to stay with the same publisher that has given him a contract, is another component of the discussion. Then the response by the university, the publisher, or his followers now relegated to Reddit (although Reddit has now entered the discussion too with its recent removal of its alt-right site) all constitute contributions as well.

This is far from censorship. His right to say what he’s saying (at least under US law) is only as protected as the right of every other player in this drama to ‘speak’ through whatever means they have. Even the canceling of the event doesn’t constitute censorship. Why? Because his ideas are freely accessible. The antifa protestors and the president of Berkeley haven’t silenced him. They have no standing to do so. They’ve just told him they want him to move his soapbox to the next corner.

The second question is the one we really should be focusing on. Is there a benefit to his speech or to its curtailment in that particular venue — a university campus? We need to grapple with our new understanding of what discourse is and how the structures of power are maintained. We now see that not everyone is able to participate in the same way in these civic discussions that Mill declares must go on for the good of society.

Mill didn’t think it was possible for speech to be harmful or violent. But today, we can see that denigration, particularly of an already marginalized group, further degrades that group’s standing in the wider society. As a result, there is actually the possibility that someone’s speech impinges on someone else’s right to dignity, equal protection, and freedom of association.

If we return to the Canadian model for a moment, this is exactly the constitutional test for hate speech that might need to be prosecuted. The Canadian constitution protects freedom of expression. But it also protects multiculturalism and equality. So if one right impinges on another, the greater good (which the utilitarian, Mill, would be all about) is achieved through the careful limitation of speech.

And this weighing of benefits and detriments is made easier by the fact that hate speech itself has no redeeming value to society. Speech in and of itself has no benefit. It’s what the discussion produces that does.

This finally brings us to the broader issue of whether students should allow Yiannopoulous (or someone else) to speak on their campuses when they know the speech will be hateful towards a group of people. And that comes down to answering a fairly simple question:

What benefit comes from it?

Uncomfortable conversations about contentious subjects should always take place on university campuses. But that’s not the same as hate speech. And hate speech fails on both counts. It has no inherent benefit to society — it doesn’t improve society through constructive critique or by the introduction of new ideas. And it actually impinges on other rights set out in the Constitution (and most university charters) — the dignity and equality of all persons. Without getting anyone any benefit in return.

And remembering that the protests and the reaction of the university are also a form of speech, part of the greater discussion over what America should be, we shouldn’t apologize or hand-wring about how this round ended up.

There’s nothing wrong with rejecting the premise being put forward and asking something else: whether Yiannopoulus should have the protected right to erode the rights of others by dehumanizing them? So you see, he isn’t being silenced. Milo’s just being forced to participate in a much larger discussion that he can’t control.