Yearly Archives: 2013

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.