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The Spirit Of The First Amendment

Popehat comments on some of the same issues I brought up yesterday from the opposite point of view. They bring up an interesting idea they call the “Doctrine Of The Preferred First Speaker”:

The phrase “the spirit of the First Amendment” often signals approaching nonsense. So, regrettably, does the phrase “free speech” when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn’t like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks “why was it necessary for you to say that” or “what was your motive in saying that” or “did you consider how that would impact someone” to the second person and not the first. It’s ultimately incoherent as a theory of freedom of expression.

In other words, person A is within their Constitutional rights to rant about how much they hate gays, person B is within their Constitutional rights to go on a rant about how much they hate person A, and if you condemn person B’s speech as “an attack on free speech” you’re ignoring the basic symmetry of the situation.

It’s a very well-framed idea, and I remember trying to grope towards something like it when I read Michael Anissimov’s Jezebel’s Vigilante Squad on More Right. Parts of that post struck me the wrong way, as genuine “Doctrine of Preferred First Speaker” examples, and I have no doubt that Popehat is complaining about a real thing that some people do.

But in the end I have to disagree with Popehat. I think there is a legitimate meaning to “spirit of the First Amendment”, I think it rescues parts of Michael’s post on Jezebel, I think it rescues some of the people defending Phil Robertson, and I think it ends up being a really important part of free speech in general.

What is the “spirit of the First Amendment”? Eliezer Yudkowsky writes:

There are a very few injunctions in the human art of rationality that have no ifs, ands, buts, or escape clauses. This is one of them. Bad argument gets counterargument. Does not get bullet. Never. Never ever never for ever.

Why is this a rationality injunction instead of a legal injunction? Because the point is protecting “the marketplace of ideas” where arguments succeed based on the evidence supporting or opposing them and not based on the relative firepower of their proponents and detractors. And as I mentioned yesterday, we’re not talking some theoretical ivory tower idea here, we’re talking about things like how support for gay marriage has increased by an order of magnitude over the past few decades.

What does “bullet” mean in the quote above? Are other projectiles covered? Arrows? Boulders launched from catapults? What about melee weapons like swords or maces? Where exactly do we draw the line for “inappropriate responses to an argument”?

A good response to an argument is one that addresses an idea; a bad argument is one that silences it. If you try to address an idea, your success depends on how good the idea is; if you try to silence it, your success depends on how powerful you are and how many pitchforks and torches you can provide on short notice.

Shooting bullets is a good way to silence an idea without addressing it. So is firing stones from catapults, or slicing people open with swords, or gathering a pitchfork-wielding mob.

But trying to get someone fired for holding an idea is also a way of silencing an idea without addressing it. I’m sick of talking about Phil Robertson, so let’s talk about the Alabama woman who was fired for having a Kerry-Edwards bumper sticker on her car (her boss supported Bush). Could be an easy way to quiet support for a candidate you don’t like. Oh, there are more Bush voters than Kerry voters in this county? Let’s bombard her workplace with letters until they fire her! Now she’s broke and has to sit at home trying to scrape money together to afford food and ruing the day she ever dared to challenge our prejudices! And the next person to disagree with the rest of us will think twice before opening their mouth!

The e-version of this practice is “doxxing”, where you hunt down an online commenter’s personally identifiable information including address. Then you either harass people they know personally, spam their place of employment with angry comments, or post it on the Internet for everyone to see, probably with a message like “I would never threaten this person at their home address myself, but if one of my followers wants to, I guess I can’t stop them.” This was the Jezebel strategy that Michael was most complaining about. Freethought Blogs is also particularly famous for this tactic and often devolves into sagas that would make MsScribe herself proud.

A lot of people would argue that doxxing holds people “accountable” for what they say online. But like most methods of silencing speech, its ability to punish people for saying the wrong things is entirely uncorrelated with whether the thing they said is actually wrong. It distributes power based on who controls the largest mob (hint: popular people) and who has the resources, job security, and physical security necessary to outlast a personal attack (hint: rich people). If you try to hold the Koch Brothers “accountable” for muddying the climate change waters, they will laugh in your face. If you try to hold closeted gay people “accountable” for promoting gay rights, it will be very easy and you will successfully ruin their lives. Do you really want to promote a policy that works this way?

There are even more subtle ways of silencing an idea than trying to get its proponents fired or real-life harassed. For example, you can always just harass them online. The stronger forms of this, like death threats and rape threats, are of course illegal. But that still leaves many opportunities for constant verbal abuse, crude sexual jokes, insults aimed at family members, and dozens of emails written in all capital letters about what sorts of colorful punishments you and the people close to you deserve.

Right about the time I started investigating the atheist blogosphere, one popular atheist blogger – I can’t remember her name, but I think she was also on Freethought Blogs – shut down her blog after getting an unmanageable number of these. Everyone posting these messages was entirely within their constitutionally protected right to free speech, yet something went wrong. A strong voice for atheism was silenced not because her opponents had clever ideas that contradicted her points, but because they managed to harass her off the podium.

Sometimes this can happen by accident – a no-name nobody makes a statement, a very popular blog or the media picks up on it and broadcasts it, and suddenly thousands of people descend on that person telling them how wrong they are. This is nobody’s fault – each individual is completely within their rights to counterargue – but in aggregate it is equivalent to the worst harassment you have ever undergone times ten, and you’re always afraid one of those thousands of people is going to take it upon themselves to contact your employer or your family or something. I don’t have a good solution to this other than to mention that it is a supererogatory but important duty not to join in.

My answer to the “Doctrine Of The Preferred First Speaker” ought to be clear by now. The conflict isn’t always just between first speaker and second speaker, it can also be between someone who’s trying to debate versus someone who’s trying to silence. Telling a bounty hunter on the phone “I’ll pay you $10 million to kill Bob” is a form of speech, but its goal is to silence rather than to counterargue. So is commenting “YOU ARE A SLUT AND I HOPE YOUR FAMILY DIES” on a blog. And so is orchestrating a letter-writing campaign demanding a business fire someone who vocally supports John Kerry.

Bad argument gets counterargument. Does not get bullet. Does not get doxxing. Does not get harassment. Does not get fired from job. Gets counterargument. Should not be hard.

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67 Responses to The Spirit Of The First Amendment

  1. Dave says:

    But surely this depends at least somewhat on the nature of the job?

    If you hire me to talk to people on your behalf, and I say things that offend and upset people, and those people express to you the fact that they are upset and offended by my speech, and as a consequence you fire me because you don’t want someone upsetting and offending people on your behalf… well, this seems to me to be an example of the system working exactly the way it’s supposed to.

    Now, reasonable people can disagree about to what extent particular jobs have this “spokesperson” property, and to what extent particular behaviors abuse that property. If I work as a software engineer for your company, that seems saliently different from working as a salesperson, or as a TV celebrity.

    Working as a doctor or a pharmacist, for example, seems like a place where disagreement on these matters is likely — on the one hand, the job involves difficult technical skills that are completely irrelevant to one’s political, religious, etc. beliefs. On the other hand, the job involves dealing with people, and pissing them off (or failing to) is important. And people will disagree about which of those hands is more important in various different situations.

    This seems relevant to my position on Phil Robertson… he has the right to say whatever he wants, including shockingly ignorant racist crap, but I’m not going to get upset if he loses a public forum because he says shockingly ignorant racist crap in public and the public objects to it. (Not that this has happened, but I’d be fine with it if it did.)

    • Watercressed says:

      If you hire me to talk to people on your behalf, and I say things that offend and upset people, and those people express to you the fact that they are upset and offended by my speech, and as a consequence you fire me because you don’t want someone upsetting and offending people on your behalf… well, this seems to me to be an example of the system working exactly the way it’s supposed to.

      If I say things that offend and upset people off-the-job, and it causes those that I need to talk to on-the-job to refuse to deal with me, I’m not sure how much I blame the business for firing me. I do blame the people I need to talk to for responding to an argument with “pressuring my employer to fire me by refusing to do business as long as I’m still employed”

      • Dave says:

        If I am upset with you over a personal (“off-the-job”) argument, and as a consequence I stop coming to the dentist where you work as a receptionist and start going to the other dentist, do you blame me?

        If 10% of the population changes dentists over a personal (“off-the-job”) argument with you, do you blame us?

        If your boss, concerned about the drop in business, calls us and asks us why we switched dentists, is it OK for us to answer honestly?

        Is it OK for us to call your boss and pro-actively let him know why we switched dentists?

        • Watercressed says:

          If I am upset with you over a personal (“off-the-job”) argument, and as a consequence I stop coming to the dentist where you work as a receptionist and start going to the other dentist, do you blame me?

          Yes, if that argument is political and well-known enough that you can expect enough people to join you to affect the receptionist/dentist.

          The level of blame for going somewhere else is somewhere around mild disapproval–I probably wouldn’t get worked up over it. The person who writes on the internet calling for a boycott is much more blameworthy than the person who follows them.

          • Dave says:

            Fair enough.

            For my own part, I don’t feel any obligation whatsoever to keep going to the same dentist if I’m upset with their receptionist. Nor do I feel any obligation to stay quiet about my reasons for doing so. Not even if lots of other people make the same decisions I do for the same reason.

            If as a consequence of all us making those decisions, my dentist hires a new receptionist and their receptionist needs to find a new job, that’s OK with me.

            That said, if their receptionist is unable to find work because so many people make the same decisions I do — especially if they are barred not only from receptionist-like work that involves interacting with customers on behalf of an employer, but from work in general because their fellow employees and potential employers feel the same way — that’s potentially a problem.

            But even if it is, the correct solution to it is not for everyone to keep quiet about their reasons for using a different dentist, nor for everyone to keep going to the original dentist whether they like it or not.

            So I would say that blaming the problem on people who use a different dentist, and clearly communicate their reasons for doing so, is an error.

        • houseboatonstyx says:

          This is getting pretty far from the starting example. To take it even further toward something generally applicable, consider:

          “Yes, I saw the other car and I could have stopped instead of hitting it. But I had the green light, so I was justified in proceeding into the intersection. If she and her children got hurt, it was her own fault for going into the intersection illegally.”

          And also consider: suppose the receptionist is one of the few pro-Martians in the town. The anti-Martians are getting upset when she (off-hours) speaks up for Martians.

          You may have the ‘right’ to take the actions you’re thinking of. But they are actions and will have outcomes. One of which will be part of silencing pro-Martian speech in that town. And discouraging free speech in that town in general.

  2. Sewing-Machine says:

    I’m interested in the construction “spirit of…” Which other amendments have spirits? I bet many people would agree that the first, second, fifth, and fourteenth amendments have spirits. The twelfth seems less spiritually fraught. Does the sixteenth amendment have a spirit? Does the CIA charter have a spirit?

    • Dave says:

      To say that the “spirit of the sixteenth amendment” is, for example, that the U.S. government is entitled to a share of the wealth created by its citizens, doesn’t seem categorically different to me from saying that the “spirit of the second amendment” is, for example, that U.S. citizens are entitled to protect themselves.

      I pick these as illustrative examples… my point is not to argue a particular position about what the “spirit” of the second or sixteenth amendments is, or ought to be treated as, but simply that I don’t see a categorical difference between the second or sixteenth amendments in this regard.

      • Sewing-Machine says:

        Those are good examples.

        If I called for a boycott of gun owners, I would be violating the spirit of the second amendment as much (or as little) as Robertson’s opponents are violating the spirit of the first amendment. Perhaps anti-tax activists such as Grover Norquist are violating the spirit of the 16th amendment, but the analogy seems more strained to me.

    • Randy M says:

      I think goal works just as well as spirit, and although it isn’t legally enforceable, it is worth considering why the thing exists, and if that is a worthwhile goal, what actions that aren’t worth legally proscribing are nontheless worth refraining from voluntarily.

      • Sewing-Machine says:

        For me, the word goal brings to mind the history of the amendment before it was ratified, (the motives of the authors and supporters of the amendment) the word spirit the history after (the “living constitution.”)

        • Randy M says:

          I don’t think that is the intended effect. When people speak of the spirit of a thing, a statement or law or such, they usually mean the intent with which it was delivered, an intent which may have been poorly conveyed by the actual wording. As in, “His compliment drew unwanted attention to her third eye, but she chose to take the statement in the spirit in which it was offered.”

  3. Vanzetti says:

    >Bad argument gets counterargument.

    You ignore something, Alexander. The space where you can express arguments and counterarguments is not infinite. The world has a limited bandwidth. And when your enemy’s strategy is to express his bad argument everywhere, using counterarguments will not work, if he can post his argument faster than you.

    • Watercressed says:

      What do you mean? The world does have a limited bandwidth, but I don’t think a particular political party is going to buy up all the IPv6 addresses or domain names anytime soon.

      • Vanzetti says:

        What I mean is that when interacting with a loud malicious idiot, you might not have the time and resources needed to implant the entire edifice of your worldview into his ugly head, but you may have enough resource to shut him up.

        Rationality is not about having oh-so-beautiful-and-rigorous arguments, remember, rationality is about winning.

        • Watercressed says:

          First, I still don’t understand how loud malicious idiots are going to saturate the world’s band
          with anytime soon.

          Second, you could call shutting up a single idiot winning, but at what cost? To quote Eliezer:

          Let me put it this way: If you can invent a bullet that, regardless of how it is fired, or who fires it, only hits people who emit untrue statements, then you can try to use bullets as part of a Bayesian analysis. Until then, you really ought to consider the possibility of the other guy shooting back, no matter how right you are or how wrong they are, and ask whether you want to start down that road.

          Unfortunately, social disapproval is not a truth-seeking bullet, and so I question whether shutting up an idiot is worth making this social pressure flow more easily, especially since many rationalist beliefs are not socially accepted.

          If he’s an idiot, how many people is he going to convince anyway?

          (and if he’s not an idiot, he probably won’t be in a position where you can strongarm him, and, since he’s not an idiot, he might just be right).

        • Scott Alexander says:

          If the idiot is loud and malicious, having a cultural norm of being able to overpower other people by loudness and force is going to favor the idiot over you.

          I think there are strong arguments against banning those people from your particular area of discussion in order to allow other more productive discussion to take place. I’m not sure how much further you’d want to go.

        • I think there are strong arguments against banning those people from your particular area of discussion in order to allow other more productive discussion to take place.

          Did you intend to say “strong arguments against,” or did you mean to say “strong arguments for”? Just checking because I found what you said here unexpected.

          Regarding your original post, really excellent post.

        • Multiheaded says:

          First, I still don’t understand how loud malicious idiots are going to saturate the world’s band with anytime soon.

          (laughs bitterly)

    • Scott Alexander says:

      Do you think shooting the person who makes these arguments is a good solution to this? What about trying to get them fired? If one but not the other, what’s the difference? (not the legal difference, but the ethical difference that inspired the legal difference)

      I am willing to relax my civility standards when I think someone is doing a Gish Gallup, but I would still be wary of doxxing them or anything like that. I might relax it further if I thought the person’s strategy was not *actually* argument, but spamming and harassment done in the form of posting lots of arguments. But that’s walking a thin line.

      • Vanzetti says:

        What is an argument, anyway?

        Let’s say there is a person out there jumping up and down and screaming “god hate fags” or “occupy wall street” or something. Do you think this is an argument he arrived to by doing Bayesian analysis? Do you think showing him the contradictions of his arguments will make him change his mind? Do you think he even knows contradictions are problematic? Do you think he is a rational agent? Do you think he ever tried to hold 2 thoughts in his head at the same time?

        Will you assume he is your intellectual equal, even when evidence shows otherwise?

        Rationality is about winning, remember? There is no better definition. If you can’t persuade an idiot to shut up by the virtue of your smart argument, because he can’t understand it, well guess what – your argument lost.

  4. Daniel Speyer says:

    This works decently when people are wrong, but not so well when they’re evil. At least at our current level of philosophy.

    As a reduction to absurdity, Clippy should be shot, right? Even if he has no actuators yet and is limited to sending messages over an internet link?

    • Scott Alexander says:

      Clippy should be shot not because of what he’s saying, but because of what we know he’s going to do.

      I doubt that an idiotic Internet commenter is both actively going to make the world a worse place, and that killing them will be positive utility considering both the damage to them and their friends, the damage to you and your friends from the legal repercussions, and the damage to the cultural norm of not shooting people you disagree with which is the only thing that prevents all out civil war.

      Clippy is just a weird hypothetical example where the potential damage is so great it outweighs all of those concerns.

      • Steve says:

        The above exchange is a lot funnier if you imagine it’s pertaining to the Clippy of Microsoft Word fame.

        I’ll…I’ll just be moving along now.

      • Daniel Speyer says:

        Clippy is more *dangerous* than Phil, which is why Clippy gets shot with bullets or nukes and Phil* gets shot with dirty looks.

        But I don’t think you can argue Phil into respecting romantic love between two men any more than you can argue Clippy into respecting human life. At this point you can put up with him or you can fight dirty. Putting up may be the better option in this case, but the “an argument gets an argument” principle just doesn’t apply.

        I would love to have a third option, but I don’t see one.

        * = I’m using Phil to represent a generic destructive bigot, since I missed what he actually said.

    • Define “evil”. It usually devolves to “people I disagree with”, the laws of perspective being as they are.

      You disagree with Clippy fundamentally and obviously enough to shoot it, but that is not relevent evidence in a debate where a *human*, or rather *most humans* disagree with you on something that is probably not worth killing them for.

      That’s probably a good guideline: When considering whether to shut down someone you disagree with, do you actually prefer a history where everyone who agreed with them was also purged? And don’t be tempted to ignore the third alternative; is their disagreement really so dangerous and fundamental that purging is superior to counterargument?

      • Army1987 says:

        Define “evil”. It usually devolves to “people I disagree with”, the laws of perspective being as they are.

        Actually it means ‘people I disagree with about values’. Someone might disagree with me about (say) whether a sizeable fraction of ultra-high-energy cosmic rays are iron nuclei, but that doesn’t make them evil, if their utility function is the same as mine. Conversely, Clippy would still be evil if he agreed with me with all factual non-policy questions about the world.

      • Patrick Robotham says:

        What do you mean by “purged”? I’ve seen it refer to things as mild as losing one’s television show (and getting a new one later). Is doxxing the same as purging? Getting banned from an online forum? Getting black looks?

        I don’t believe anyone should be shot or imprisoned or fined for publishing anything, but a de-facto rule of only aristocrats and fanatics publicly disagreeing with consensus (because ordinary folks wouldn’t think the cost is worth it) doesn’t strike me as being completely inimical to liberal society (at the very least, this rule seems to have been in force for at least the last 200 years in western society.)

        I prefer communities where one can disagree with consensus and get a counterargument instead of harassment, punches and threats to one’s paycheck. I also prefer communities where people are civil to each other and do not commit elementary logical fallacies. None of these strike me as the last line of defense against an Orwellian dystopia.

  5. Andrew Hunter says:

    The atheist whom you’re thinking of is probably Jen McCreight. While she certainly didn’t deserve harassment, I think it’s amusingly ironic that she’s a big fan of crowing that the First Amendment Doesn’t Protect {MRAs,antifeminists,anyone she doesn’t like} and is well in favor of distributed harassment of her enemies. The lack of self-awareness would be funny if it weren’t so sad.

  6. I don’t think you actually disagree with Popehat here. It’s pretty clear from the rest of his post that he doesn’t approve of “YOU ARE A SLUT AND I HOPE YOUR FAMILY DIES.” He’s thinking of cases where Person A says in a magazine interview, “God loves everyone, even terrorists and Jews” and Person B responds writes a blog post saying, “Look at this incredibly anti-semitic thing Person A said.”

    I’m sympathetic to your concerns in this post, but I think you may have picked the wrong example to champion in Phil Robertson. This controversy has made me realize I care about bigoted content-creators only insofar as I fear it will affect their work. E.g. my impression is that Orson Scott Card has gotten crazier over the years, which puts me off reading his more recent stuff, but also means I’m not afraid to buy his earlier books even if he gets royalty money from it.

    But the fact that it’s rational for audiences to fear a creator’s crazy opinions affecting their work is reason enough for media companies to be leery of hiring creators with crazy opinions. On top of that, while I don’t feel this way personally, I can certainly sympathize with people who want to avoid the work of bigoted creators simply because because they don’t want to contribute to a bigot becoming rich and famous.

    That’s not the same thing as saying you want bigots to be financially ruined. Just that you’d rather they not become rich and famous. In a world where most people feel that way, all it means is that bigots need to cater to a niche audience that doesn’t care about their bigotry, or find another line of work. One way to interpret “you don’t have a first amendment right to a reality TV show” is “so what if Robertson loses his reality TV show, most people don’t get to have reality TV shows?”

    This may make it slightly harder for unpopular ideas to get aired, but persuading people of unpopular ideas is an uphill battle anyway… yet the good ideas win out in the end. Currently, atheism de facto disqualifies you from holding national elected office in the US, which isn’t yet true of Robertson’s views on homosexuality. Yet atheism is still winning the argument, so it’s hard for me to fear the coming of the day when Robertson’s views are disqualifying for elected office.

    • Randy M says:

      In a world where most people feel that way, all it means is that bigots need to cater to a niche audience that doesn’t care about their bigotry, or find another line of work. One way to interpret “you don’t have a first amendment right to a reality TV show” is “so what if Robertson loses his reality TV show, most people don’t get to have reality TV shows?”

      I think this works in favor of Robertson, though. His show was enormously popular. So the producers don’t need to ask themselves “given this, is there still a market for Duck Dynasty?” when even if the show dropped a large percent of its viewers it would still outrank most cable shows by a large margin. Similarly, Paula Dean had substantial preorders for her next book when it was canceled.

    • Kerry says:

      That’s not the same thing as saying you want bigots to be financially ruined. Just that you’d rather they not become rich and famous.

      Yes! It seems to me there’s a middle ground between “having a lucrative position with a major public platform” and “becoming utterly destitute” that’s not being acknowledged here.

  7. houseboatonstyx says:

    Looking at outcomes might simplify this. A massive number of counter-arguments, even if each alone is civil and rational, can result in the first speaker being silenced unjustly.
    The third and nth speakers may in effect be contributing to a mob phenomenon.

    • Dave says:

      Though if we’re going to take a big-picture view like this, it is also worth asking whether the original speaker was themselves part of a “mob phenomenon.”

      If they were, it seems bizarre to treat the 3+th speakers one way by virtue of their membership in such a “mob”, but not treat the first speaker the same way.

      Put a different way… the first speaker is only the first speaker by virtue of when we decide to start telling the story. In reality, the conversation has been going on for a long, long time.

      • houseboatonstyx says:

        ‘Mob’ usefully means an overwhelmingly large number of people saying the same thing in unison in closely overlapping fora during a short period, with a clear outcome.

        • Dave says:

          Can you expand on what you mean to imply by this? I don’t really care to dispute definitions of “mob” in the abstract, and I don’t quite follow how your reply connects to my comment.

        • houseboatonstyx says:

          There are situations where speech becomes action. To say, “There’s an illegal alien hiding in that truck” is not just exercising your free speech — it’s in effect causing the alien to be arrested.

          To say, “Jocelyn Elders promotes immorality” may be free speech — but to join a massive group chorusing it is in effect causing her to get fired.

          • Dave says:

            That helps, thanks.

            So, if I’ve understood you, then on your account if I make public statements about the inferiority of Martians in a cultural context where basically everyone thinks Martians are great, then I can usefully be treated as “speaker #1” in the sense we mean it here. And if N speakers then respond telling me to shut up, they are a “mob” in the sense we’re using here, and it makes sense for us to oppose the mob to prevent them from silencing me… even if they are all individuals with no explicit organization or connection to one another, etc.


            Similarly, if I make the same statements in a context where lots of people think Martians are inferior and frequently say so, then I am part of a “mob,” and it makes sense for us to oppose me… even if I’m an individual with no explicit connection to the others.


        • houseboatonstyx says:

          Yes to some points about mobs.

          Yes, it does not matter whether the Silencers are all individuals with no organization or connection with each other. Yes, the same person making the same statements may be a Silencer on one occasion but the Silenced on another. It doesn’t matter whether we agree about the Martians or whether historically the pro-Martians have been silenced more than the anti-Martians, or how badly the Martians have been treated in general, or whether the anti-Martians outnumber the pro-Martians when you tabulate every person in X area over Y years.

          No, you’ve left out some factors. 1), the relative number of Pro’s and Anti’s present at that particular time and place. 2), whether some conclusive action is in the balance to be decided immediately. 3) whether the silencing is by bullet (including attack on livelihood). 4) whether the number of statements made on each side will be decisive (even if duplicates).

  8. Jess Riedel says:

    In “On Liberty”, John Stuart Mill makes essentially the same point: the justification for freedom of speech—the free operation of the marketplace of ideas, etc.—applies just as well to private action as government. Mill acknowledges that we are right to shun immoral opinions, but argues we shouldn’t silence it or punish it in any way that doesn’t flow directly from the bad effects themselves.

    “We have a right, also, in various ways, to act upon our unfavourable opinion of any one, not to the oppression of his individuality, but in the exercise of ours. We are not bound, for example, to seek his society; we have a right to avoid it (though not to parade the avoidance), for we have a right to choose the society most acceptable to us. We have a right, and it may be our duty, to caution others against him, if we think his example or conversation likely to have a pernicious effect on those with whom he associates. We may give others a preference over him in optional good offices, except those which tend to his improvement. In these various modes a person may suffer very severe penalties at the hands of others, for faults which directly concern only himself; but he suffers these penalties only in so far as they are the natural, and, as it were, the spontaneous consequences of the faults themselves, not because they are purposely inflicted on him for the sake of punishment.

    What I contend for is, that the inconveniences which are strictly inseparable from the unfavourable judgment of others, are the only ones to which a person should ever be subjected for that portion of his conduct and character which concerns his own good, but which does not affect the interests of others in their relations with him. Acts injurious to others require a totally different treatment.”

    (Needless to say, any counter-argument which declares the expression of immoral opinions as “injurious to others” completely misses the point of freedom of speech.)

  9. I would hypothesize that positions on this issue correllate with power in the obvious way, except for a few outliers like the truly honest rationalist demographic. Homo hypocritus and all that.

    If so, we can get evidence for how power is currently distributed and how it changes over time.

    50 years ago, we had “first they came for the communists”, now we have this.

  10. Patrick says:

    I am a lawyer. If I make off the job comments that are directly harmful to my clients, I don’t just lose my job, I may lose my license. And that’s as it should be. My clients hire me to help them protect their interests from, amongst other things, people attacking them in the media. How can I accomplish that while also contributing to that at the same time?

    The key difference between my situation and that of a woman being fired for a John Kerry bumper sticker is that her political expressions are unrelated to her job. That’s not true of me.

    And that’s not true of Robertson. He is a reality TV star who’s fame and popularity originate in his status as a totemic representation of an idealized conservative patriarch. His political opinions are a subpart of the overall product. So is his personal life, and so are his media appearances in other media venues Boycotting his show or his network over things he says in an interview is not dissimilar from boycotting a musician or record label over the contents of their lyrics.

    • Scott Alexander says:

      Can you give an example of an off-the-job comment that would harm your clients?

      Like if you violate confidentiality, obviously you should lose your job, but that seems different than expressing your opinion on some political issue.

      I feel like “this person represents our company” is something that can be applied to anybody with a little bit of effort. At what point do we want to legitimize saying “Our company owns everything about you, even your private time and personal opinions?”

      If Robertson’s speech was done in persona, the correct response is not to care, the same way we don’t care when an actor playing Hitler says Nazi slogans. If it was done out of persona, then the correct response is to say his private life is his own business. This “even what he says in his private life is technically part of his public persona” thing seems pretty chilling, especially if he didn’t sign on for that.

      • Patrick says:

        I can justifiably get in trouble for expressing opinions on political questions that do not involve confidentiality. I cannot give examples related to my actual work for obvious reasons. But let’s pretend I do eminent domain cases, and on the job I argue that a particular taking is justified, while off the I say eminent domain verges on tyranny. That would justifiably get me in trouble. it would harm my (hypothetical) client, and undermine my credibility while I was on the job. My representation, the thing I sell, would be affected by my private behavior in a direct manner. Identical legal work from someone who did not look like a hypocrite would be more valuable than mine.

        Robertson is a reality show star who has carefully crafted a cult of personality based following. The blurring of personal and persona is the entire point. Of course he signed up for this. This is literally the entire thing he signed up for. He signed up for nothing BUT this. There are no other things for which he could have signed up.

        • James says:


          I can justifiably get in trouble for expressing opinions on political questions that do not involve confidentiality …[L]et’s pretend I do eminent domain cases, and on the job I argue that a particular taking is justified, while off the I say eminent domain verges on tyranny. That would justifiably get me in trouble …Identical legal work from someone who did not look like a hypocrite would be more valuable than mine.

          Accusations of hypocrisy would be unfair. Representing a client is not the same as morally endorsing the client or arguments made on the client’s behalf.

          In the world where a lawyer must endorse her client’s cause, sophisticated lawyers will toe party lines, and unpopular causes will lack the advice which helps them to access legal rights. This seems bad.

          We are better off with a norm of neutrality in legal practice, where lawyers do not morally judge their clients and are not morally judged for serving particular clients.

        • Anonymous says:

          A lawyer doesn’t need to endorse his clients position. He or she needs to not undermine it.

          And if you can come up with a way that a lawyer can advocate one position in court and another outside without making his advocacy less convincing in a court room, we’d all love to hear it.

  11. ben lash says:

    The blog in question is almost certainly Blag Hag. although she is now back very intermittently.

  12. Sniffnoy says:

    Honestly I’m not sure you go far *enough*, though going further probably takes us out of the realm of “The Spirit of the First Amendment”, and into “How to Have a Good Argument.”

    Let me produce an example — consider this blog post I was linked to a while back. I don’t think there’s anything in it that really runs counter to the Spirit of the First Amendment; it’s not harassing anyone or promoting such. But it is still, to my mind, Bad Discussion (if you don’t mind the proliferation of capitals; knowing you, I doubt it). It says — straight out, even! — that if you make a particular claim about the results of various policies (a claim about facts, not values), you are an “enemy of the poor” and a “bad person”.

    Now he may well be right in terms of his factual claims. But his argument is far from airtight. And claiming that anyone who disagrees with him is a bad person is not a way to promote pointing out gaps and clarifying things. It’s not harassing anyone, but it’s still discouraging discussion. These sorts of things are how we end up with (to quote you) memetic superweapons and bingo cards — where if you disagree with a particular position or argument, you’re a bad person; and if you attempt to actually argue for your claim, you’re now guilty of defending evil.

    The result of this — though I realize I haven’t really supported this here — is that I’m wondering if we should be specifying what an appropriate response to an argument is rather than what it isn’t. There seem to be just too many ways for things to go wrong…

  13. a person says:

    I just wanted to do that “why our kind can’t get along” thing or whatever and say that in this post and the previous one you expressed my exact opinions in a much better way than I could have.

  14. Steve says:

    You’re overlooking two things: Most importantly, the marginal impact of each move, and secondarily, that Phil’s comments were never meant to be an argument.

    If I respond to Phil by posting a counterargument on reddit or facebook, 10 people who already agree with me will read “actually, desiring a man rather than a woman isn’t about *logic*, it’s about *innate goals*.”

    If I respond by encouraging a boycott or otherwise applying political pressure, 10 people who already agree with me will help silence Phil.

    In the first case, have I contributed to a world more likely to use arguments than to silence the opposition? …Kinda. Maybe it wouldn’t take 3^^^3 such efforts to change the world, but the actual number is between that and a hundred trillion.

    In the second case, have I contributed to a world more likely to tolerate gays? It’s a small effect, but it’s many orders of magnitude greater than the effect I had on societal norms for disagreement.

    In fact, if we *really* want to affect societal norms for disagreement–if this is important–we should use social pressure in that direction, as hard as we can.

    • houseboatonstyx says:

      I’m not so sure of that. If you paint “Don’t diss gays!” in enamel on Phil’s windshield, that contributes to a world where people are afraid to diss gays. But it also contributes to a world where people are afraid to speak out about anything.

      In a world where vandalism (bullets, attacking livelihood, etc) is accepted, which side is more likely to indulge? Probably the side with rifle racks in their pickups.

  15. Shiyo says:

    There’s a lot of things I like about exploring and understanding the spirit of a thing, even if (especially if) it’s ambiguous and contradictory and full of competing ethics that may all be valid in some sense. Do we prioritize a man’s right to free speech, or a customer’s right to spend their money where they wish, even if that – in aggregate – becomes a form of social coercion? How ethical must a company be, if they can only survive by following the market? For example, if all their customers are racists, are companies responsible for hiring minorities anyways, even if that costs them money?

    The discomfort I have with your evaluation of this particular case is that you seem to highlight it as a singular instance, an egregious instance against Robertson and other ‘offensive-speechers’ amongst other singular instances, when in reality it’s actually the way the world works for *everyone*, bigots and non-bigots alike. In the workplace, there really *is* no such thing as ‘free speech’ in the sense that you get to say whatever you want and everyone will respond through civilized discourse alone too. For my company, I’m only employed because I am a ‘profit generator’. It is not about ethics, it is about money – even if they like me, if I can’t make them profit, they’ll fire me; if I can’t bring in as much profit as some other person, they’ll switch me. If I make a mistake that costs them money, they’ll fire me. If Duck Dynasty dude’s ‘foot in mouth’ moment hurts his company’s image and costs them money, well – just about every other company would feel within their rights to get rid and find someone else, so why shouldn’t they?

    Of course, the problem is that a person’s ability to bring in profit depends on other people – on fraught, problematic, and oftentimes deeply unjust societies. On the less serious scale, this might mean that I can’t wear obvious tattoos and nose rings to my professional workplace, because clients would be put off. Okay, these are tattoos rather than political statements, but what if I came in with swastikas and Aryan Nation stamped on my cheek, driving customers away? Should the company be forced to stick with me just because firing me would be a silencing of my views? What if I make them go out of business?

    Let’s look at the other side. In Hollywood, white-washing is still a universal practice today (just look at Ridley Scott’s Moses movie coming out next year with Christian Bale and Aaron Paul, haaa). It robs talented actors of color of their livelihoods, much less their opportunities for stardom. It robs audiences of the chance to see and hear and identify with people who aren’t like them, people who might challenge their stereotypes or those beliefs that’ve infused in us like osmosis from the day we’re born, and it robs POC of the means to share their own stories (when Hollywood or book publishers would much rather take up a title with three white guys in the lead than a geeky black chick). Hollywood and publish houses justify this by arguing that white leads or square-jawed/funny/’lovable loser’ male actors are much more marketable, and well, they invest so much money, why shouldn’t they try to maximize their returns? They’re not moral flagbearers, they’re neutral entities who have to follow the market, and the market is pretty damn racist and sexist and all those shitty things – if our cultural preferences weren’t so fucked up – if we were willing to buy more books or watch more movies with black heroines or gay people or disabled people – maybe they’d actually give them to us.

    I don’t believe Hollywood and the rest of the media get to wriggle their way out of this one cleanly, because they are very much complicit in the creation of our culture too. They help shape our beauty norms, of what heroism or glamour or normality looks like; they pluck out the pieces of our world that are important, and in doing so tell us what stories have value – what *people* have value, in the grand human tapestry of it all. The dialogue goes both ways.

    But I think the entertainment industry has a point in that as much as we have tried to hammer out our biases in law, our markets are much more tyrannies of the majority than defenders of free speech – because very few of us are upholders of free speech when it comes to how we spend our money. Maybe I’m not going to tell my local diner owner who constantly tells rape jokes that he should shut the fuck up, but I *am* going to take my money elsewhere, because god knows I worked really hard for it and I think I’m entitled to spend it where it makes me happiest. And yes, ‘where it makes me happiest’ is loaded with personal biases and the influence of all these social norms …. which means that I (and various others who share these feeling) may ultimately drive the rape-joker out of business and deprive him of his livelihood, and that’s silencing. But as much as I’d love a civilized dialogue, I don’t have the time, money, and energy to keep frequenting and arguing with businesses I dislike when there are so many businesses I would like more.

    That’s how markets work. They don’t protect individuals, they don’t let people be who they want – they force people to listen and to respond to other people because otherwise ya’ll ain’t getting no money. The main reason we are getting all these ‘eco conscious’ brands these days isn’t because CEOs just looove the environment, it’s because WE (biased, biased WE) are demanding it and all businesses are in the business of making money. And no doubt in the past, businesses didn’t hire minorities or appoint women in leadership roles because WE didn’t much like it, and all businesses are in the business of making money. (Well, not just in the past, quite frankly!)

    My ultimate point is that silencing happens ALL THE TIME. It is everywhere. It is inescapable. It is inescapable because we can’t escape prejudices, and the market can’t escape us. Duck Dynasty is actually a rare example where the silencing happens in the other direction, against bigots – in reality, silencing means that a fuckton of talented but ‘less marketable’ people – blacks, gays, women who aren’t there for romance, older people, ugly people, disabled people – never get on your screen in the first place, much less get the chance to say the fuck they want.

    I understand that you’re trying to make a point about SHOULD, rather than IS. We SHOULD have to deal with people who we don’t like without costing them their jobs. We SHOULD vote with our words, rather than with our money. After all, ‘voting with our money’ has, at various times, silenced both the values we like (LGBTQ equality) *and* the values we dislike (homophobia), because these values ultimately depend on our culture, and our culture can be deeply arbitrary unjust. In the face of this arbitrariness, maybe a stripped-down, neutralized, ‘clean’ rule is in order.

    But I’m going to say that maybe we shouldn’t have hard and fast rules for this, even as a fan of what you’re saying about the spirit of the First Amendment. I don’t like wielding the markets – the world of real money, real livelihoods, and real consequences – to silence or influence or change people like Phil Robertson, who wielded words and not action; I would love a world in which argument was met with argument, mano a mano. But I also don’t think you can untangle the ‘real’ world of markets from the world of words, or the world of just being a certain way (having a certain skin color, or genitalia, or some other Thing That Really Shouldn’t Matter). And I don’t think that ultimately, you can tell a person what to do with their money (in most cases – obviously different if they’re buying child porn etc). And ultimately, a company has a really fraught morality because they have to stand by at least some of our ethics, but they still have to survive by making money.

    That creates the kind of nebulous world where we have to take things case by case – where I understand when Hollywood execs want Jennifer Lawrence for a character who was dark-skinned and olive-eyed, but feel disappointed the industry won’t acknowledge its own complicity in what we deem ‘marketable’; where I understand when companies pass me over for a certain job because I don’t fit their ‘young and glamorous’ image (seriously though – still sucks); where I want people to make as many racist, nasty movies as they want and OSC to be as homophobic as he wants and Robertson to say the fuck he wants …. but don’t expect me to hand my hard-earned money and eyeballs to them. I don’t think we should say ‘SHUT UP!!!’ and just end with that, but seriously, I can’t engage every single bigot I meet with long, civilized debates – sometimes, I can only walk away. “No one’s forcing you to watch it” is a common refrain of people who hate it when we point out some show, say, has really shitty female characters … well, that’s exactly it. I’ll withdraw and take my business with me, because I have such a limited amount of everything and I don’t want to waste it on Stuff That Only Annoys Me, when so many other people are struggling who I’d like to help more. I will digest and think through each case more deeply on my own later, but on my own time and at my own convenience, not theirs. If that makes me a brainwashed consumer, a Contributor to Social Conformity, a Not-so-different from the Racists who Just Had Different Biases – a silencer, if you will – then I guess I have to be.

  16. houseboatonstyx says:

    It’s one thing for existing customers to get disgusted and go to other diners. That’s a direct natural consequence of the owner’s action. Each customer has zis own reaction and makes zis own choice. If the owner changes his behavior, each customer can choose how much, if any, change is sufficient to bring zim back.

    If the corporate bean-counters have got enough market feedback to see that the show is losing too many viewers and cannot survive with Phil in place, it’s reasonable for them to withdraw their investment.

    What’s problematic is for the bean-counters at first news of a controversy, to preemptively … take Paula Deen’s cookware out of stores, cancel her new cookbook, etc. Even at a loss to themselves of the pre-orders.

    Especially if the controversy is driven not by offended former customers or viewers, but by headline writers, commentators, talk show hosts, etc, who may have little or no familiarity with the show or the real facts of the controversy.

  17. Anonymous says:

    >because the point is protecting “the marketplace of ideas” where arguments succeed based on the evidence supporting or opposing them and not based on the relative firepower of their proponents and detractors.

    I think this is where many, many insular and cultish groups break down. Say, the Social Justice Warriors on Tumblr, or Scientologists. A big common thread is that you cannot hold an incorrect viewpoint in the eyes of these groups without also being a horrible person. And then the sane voices of disagreement leave, and the group gets crazier as a whole, and the whole group slides into the hard limits of idea space.

  18. houseboatonstyx says:

    Bad argument gets counterargument.

    The good argument does not have to be addressed to in-this-case-Phil, or on his forum, or even mention him by name. The point is to dissude other people from accepting that argument, from him or anyone else.

  19. hf says:

    You appear to be spreading lies about the “doxxing” of someone who was on the board of an atheist organization under her legal name. If you dispute the facts here, you should say so.

  20. Pingback: Open Post And Link Farm: The Greatest Of All Imaginable Home Alone Posters Edition | Alas, a Blog

  21. MugaSofer says:

    “A lot of people would argue that doxxing holds people “accountable” for what they say online. But like most methods of silencing speech, its ability to punish people for saying the wrong things is entirely uncorrelated with whether the thing they said is actually wrong. It distributes power based on who controls the largest mob (hint: popular people).”

    You’ve been talking about the plight of us low-social-skills … people a lot recently. Any chance you’ll ever share these advanced social skills you learned during your Five Thousand Years?

    Obviously, some of these techniques may be evil. But you have unparalleled access to the rationalist community, so I’m guessing the instrumental value could be high.

    Oh, and I’m crazy curious, of course. Hmm, I think I’ll ask this on a few posts in the hope it’ll be seen.

  22. asdf says:

    “Freethought Blogs is also particularly famous for this tactic”

    Oh look, a consecrative reactionary who thinks they have an objective view of reality.

    I’m sure all those blog posts aren’t just as terrible of echo chambers LOL