This argument fails, like all attempts to temper free expression, because it misses half of the epistemological center and purpose of free expression. But, let’s give credit where credit is due: the article does some nice things. It recognizes the distinction between free speech as a constitutional prohibition on the state and free expression as a social value. It recognizes that free expression has a legal diminsion and a cultural diminsion. Most importantly, but also with tremendous vagueness, it suggests that bright lines should not be drawn in the consideration of free expression.
That being said, it has a number of serious problems. I will highlight two of them. The first one is somewhat semantic. Zoé Samudzi’s post commits this common mistake: it equates (again, with a vagueness that comes from hasty generalizations) that hate speech incites violence. Now, contextually, her comment must be taken to mean something other than physical violence because only the most egregious, extremist, and misguided libertarian would argue, in the name of “apolitical liberal constitutionalism,” that even the occasion of physical violence does not justify protective limitations on free speech. The U.S. Supreme Court has never sanctioned or protected speech that incites violence, whether a call to harm an individual, or a socially deplorable use of discourse, like the dissemination of child pornography. Zoé claim must be that hate speech incites non-physical violence.
She shouldn’t do that. We, as a people and as a society, need to stop doing that: misappropriating the term “violence.” Violence means physical harm. If we are discussing some phenomenon that does something that we don’t like but that does not do damage as a result of actual physical contact we are discussing something other than “violence.” Find another word. She denigrates the people to whom violence is done by reducing the meaning of that word. But I digress.
The real problem with this article is its refusal to acknowledge and appreciate the equilateral purpose and value of free expression. Free expression, as John Milton, Thomas Paine, and J.S. Mill argued centuries ago, is not merely the right of a person to be heard, but it is equally the right of every person to listen to what others have to say. In other words, I am denied (sometimes symmetrically and sometimes asymmetrically, and therefore, for all intents and purposes, always asymmetrically) the ability to hear the opinions and thoughts of others with whom I disagree when free expression is suppressed. This valuable attachment to the concept of free expression is often lost in the modern debate, and is done so to our great peril.
Notwithstanding the conceit of those who raise subjective personal identification and ideology to the level of ontological truth, the restriction of free expression for any reason other than to prevent actual physical violence impedes thorough, empowering discourse. Now, of course, we progressives would love it if all our discursive experiences could be both unrestrictive and permanently pleasing and happy: if every person held opinions and beliefs that were thoughtful, honest, true, and peaceful. But that is not the “real world.” In the real world, some people hold vile, nasty, dishonest, and false beliefs. Sometimes they hold hateful beliefs or at least the desire to impose discomfort, shame, and emotional harm onto others. Is the best way to deal with such persons to quiet them, marginalize them, and bury their wrongness in silence? No. Never. Whenever an advocate for harm or falsity holds views and opinions that challenge truth or decency, we don’t want them silenced. We want them heard. (Notice that that is not the same as wanting them to express their loathsome ideas. Free expression is transactional: it requires at least two actors, speaker and hearer.) We don’t desire that such people be empowered to speak. We desire that we be empowered to know that such opinions exist and, most importantly, who holds them.
Here is where Mr. Zunger goes wrong. He says:
“[T]here’s no meaningful argument to have around hate speech.
“‘I think taxes should be raised to pay for X’ / ‘No, that’s a waste of money’ is an important political debate. ‘Victimless crimes should be abolished’ / ‘No, they have hidden victims’ can be an important debate. But ‘You are subhuman and nothing you say has any meaning, because of your intrinsic foolishness’ isn’t part of any debate. ‘I think you and your family should be killed.’ / ‘I disagree!’ is definitely not a debate. No new knowledge comes out of it.
“And neither the person forced to ‘defend’ their humanity, nor any of the bystanders who learn from real arguments, benefit from it being treated as one.”
I am sorry, but that is dead wrong! There is value in those latter statements: not in their being said, but in their being heard. Correctly, they are not the contents of a useful “debate,” but they are the impetus of a necessary contest of ideas. I am entitled in a free society to hear someone say that they abjectly dismiss someone as being “subhuman,” or that they wish misfortune on others, because I get to know who thinks such horrendous things, and I get to just as forcefully, publicly, and penetratingly chastise them for such views. If you silence them for their hatefulness, you also silence me in my righteousness. If you disempower them, you also disempower me when I wish nothing more but to confront such hate.
The most egregious example of bad ideas are those that are not only distastefully vile, but also are objectively false by any measure. And the best example of the collision of the two is, in my estimation, Holocaust deniers. Holocaust deniers are the embodiment of a particular brand of vileness because their idiotic views are an affront to both decency (its inherent anti-semitism) and truth (its inaccurate history). But if someone is a sincere and earnest Holocaust denier (or a 9/11 “truther,” or a hateful conspiracy theorist) I plead that they make their abhorrent views known publicly. I will go to great lengths and personal cost to give them a forum to spout their crude and profane ideas because the best remedy to rude and crude falsehood is discourse and the only antiseptic to repugnant views is exposure.
If the desire for the cleanser of sunlight and refutation applies to those who deny the Holocaust, it applies to the speakers of hate. Such people should have unregulated access to express their views, not to give them voice but to give me a hearing of that voice. Such people deserve the scorn of shame and ridicule that their views and opinions deserve. We progressives have better ideas, better values and better expressive capacity, and we must relish the chance to combat and rebut anyone who denies the value and authenticity of others. Free expression is the only “marketplace” or discursive venue in which the peddlers of hate and derision can be excised of their vile ideology.
Ah, you might say, but what about asymmetry? Hate speech and harassment are silencers of the powerless, right? Wrong. The personal identity and ideology of the disempowered and disenfranchised should be treated like a property right. Try telling a conservative, theistic gay- and transgender-basher that the identity of gay and transgendered people is equivalent to the right to hold and possess property. Suddenly the capacity to minimize and shame the identity of others becomes very difficult for them to sustain.
And, asymmetrical power is never cured by asymmetrical silence. It is simply not a effective prevention of or corrector for powerlessness. Values and their expression change ideas and minds, not silence and anonymity.
Mr. Zunger correctly says that we must take care not to chill free speech, but makes this claim in an article that espouses that very thing. The problem with wishing to avoid the “chilling effect” is that it is not something that can be achieved by any regulative algorithm. Free expression is only valuable if it permits the most vile expression. We are not and cannot become a western European democracy, like Germany, France, and Austria, with their discursive-crushing restrictions on blasphemy and socially abhorrent speech. If you chill free expression by one degree, you chill it by 500 degrees, and drive the possessors of profane ideas into the arms and ears of only those who share their views and will not challenge or correct them. The internet has assured that ideological reprobates will find an audience. It is our job to make their audience as broad as possible and populated it with challengers to their views.