On Free Speech: V. Bending Two Extremes

About the Featured Image: Between the two figures is a tablet representing the first Ten Amendments to the Constitution, all shielded under the wings of Freedom, the Eagle.

Click here to read On Free Speech: IV. Grounding Movement Control

On Free Speech V. Bending Two Extremes

“I think what we’re learning is that, particularly when they get a choice, a lot of people decide to believe what’s more comfortable for them, even if it’s not the truth.”

Ellis Cose

First of all… throughout this series, I’ve left aside rioters, brutality, and wicked prejudice – these are implicated, and consequential, and obviously current – but they’re also particularly for another discussion. The corollary of free speech is what might be prohibited. In this context, what is prohibited is the act of government censorship, with some qualification reserved for government to negotiate with the speaker, via judicial systems, on such bases as common obscenity, so-called “fighting words” of hatred, malicious defamation of public officials, and more generally the balance in likelihood between the “gravity of the ‘evil’” and whatever “invasion of free speech” might be deemed necessary, say if someone were inciting others toward government overthrow. By definition, free speech is the opposite of sedition. Here I discuss free speech.

In more recent times, when I’ve noted people invoking “free speech,” what I’ve tended to notice more plainly is their apparent desire for the power to control: in a battle draped by free speech, at stake seems not so much free speech per se as who gets to define illegal speech – illegal being relative to what the one ‘side’ believes ought to be legal – as though somebody’s right to speak is tangential to somebody else’s impetuosity to judge.

[NB: throughout, what I’ve been calling a ‘side’ can be populous or solitary. I’ve been presenting ‘side’ in single quotations because it’s also a word loaded with partisan and polar connotations, none of which I mean to suggest – not overtly, at least – besides which, I haven’t really decided on a more suitable word.]

This statue represents the Authority of Law, sculpted by James Earle Fraser at the request of Cass Gilbert.

The First Amendment prohibits government (including funded entities, such as public universities) from prohibiting speech on the basis of content. But as First Amendment rulings have contextually narrower scope, is it any wonder that this battle I describe might enjoin its participants? In the battle I describe, for gaining the control to define illegal speech, the fight is for the power to adjust the balance of favour toward what the one ‘side’ deems morally right and away from what another ‘side’ has said or might say that is morally wrong, none of which is quite free speech per se but more about a power of control. This is specifically why I consider the speaker in Part I and why it’s taken three posts further to reach this one.

The battle I detect seems unbecoming of the Supreme Court’s standard by which the principled right to speak ought to supersede the imposition of censorship. The Court favouring an individual’s right over a censor’s power is something akin to the glass half-full, or as Cose puts it of Justice Brandeis’s widely held presumption, “incredibly naïve.” Alternatively, the battle I detect ignores the glass completely – full or empty notwithstanding, weigh those rights and impositions any way you like. The battle I detect prizes something else entirely: predominance, as if the whole notion of freedoms or rights were contingent upon some grander notion that is earned before ever being learned, by which I mean might makes right. For a fact, I know this phrase makes some people squeamish, I gather in the name of all that is civilized – is it all the more surprising that any might see it lived out, seemingly in spite of themselves? As for me, I distinguish subtly but significantly between aspiration and sentimentality, between the world we try to create and the world we would prefer to see. The Land of Should is ideological, a fantasyland. Should we so choose, the only reality it will ever serve up is to host our last battlefield.

In the battle I detect, all of the above is the context in which free speech is brought to market. I don’t know about you, but to me, it’s as though all ‘sides’ have lost sight of what made them sides in the first place, or maybe just no one has ever understood. Are we obliged to lean one direction: to the individual, or to the censor? Does the citizen really leave off somewhere beyond where government begins, or are thems fighting words? The courts may offer “careful weighing of conflicting interests,” but nature eschews a vacuum – and lo & behold, there we are, doing our part, playing our role: just as government of, for, and by the people has no “right to control the moral content of a person’s thoughts,” even so We the People are there, on the streets, to battle it out. Democracy in action… QED?

As I said earlier, it’s been known to happen. I also said earlier, all this can be said of any given ‘side’ – yet, then again, can it? Surely “all this being said” includes me, here and now, writing this blog post… QED? Is there a context in which some ‘side’ might justifiably be censored, and silenced? I mean a context somewhere in between, say, protest and sedition, demonstration and insurrection, somewhere in between conscientious objectors and ignorant rioters, in between sincere agency and prevaricating lickspittle… if we can so definitively know who’s who in the extremes I’ve just listed, and I’ll bet you have your favourites, then surely there’s a line censors may rightly or even righteously draw.

Of course, it depends on whom you ask, which is not irony but debate, which is not battle – if they meant the same thing, we’d use the same word. As for me, since you’ve read this far, I think we gather best as a collective group of individuals when we are a collective group of individuals – and if that seems obvious, still, we continue to battle as well as debate. And where we may debate over free speech, more precisely, it seems to me, we battle for free speech. We battle for control and make free speech the slogan. We uphold free speech as a virtue, yet it’s a child in a divorce, to whom the parents owe not just their primary respect and concern but their efforts and their behaviour and their decisions and real consequences. Not their irreconcilable differences.

Looking into the Court Chamber: visitor photography is prohibited once inside.

I suppose, if we are to battle (vs debate), we’d be wise to distinguish with the sharpest clarity a ‘combatant’ (from a ‘disputant’): after all, words matter.

Free speech is subject to prohibition of those abuses of expression which a civilized society may forbid. As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument.

Dennis vs United States, 341 U.S. 494 (1951)

Or have I just seen too much within this of myself? Have I left off well past the point where others begin? Do I impose or intrude? Unlike me, Cose describes not specifically a battle but tension: “… we’ve always had this tension between the right to absolute speech and the right to speech that somebody or other considers dangerous or harmful.” Even so, I detect in his words what I’ve just distinguished, i.e. absolute combatants versus searching disputants. The Supreme Court, unlike Cose or me, discusses free speech more respectfully still, as neither battle nor tension, in a ruling that I think, to be fair, is more instructive than incredibly naïve:

“For social development of trial and error, the fullest possible opportunity for the free play of the human mind is an indispensable prerequisite. The history of civilization is in considerable measure the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other truths. Therefore, the liberty of man to search for truth ought not to be fettered, no matter what orthodoxies he may challenge. Liberty of thought soon shrivels without freedom of expression. Nor can truth be pursued in an atmosphere hostile to the endeavor or under dangers which are hazarded only by heroes.”

All that stone can get pretty slippery… better proceed with caution. And hey, remember, these guys only work within their reach. The supreme court in private life is nowhere near as costly: all those devices… rare earths, I guess? but saves a bundle on marble.

For my part, I’m no hero although – as with anyone who says this – context may decide otherwise. How about, I don’t want to be a hero. Whatever… if we live in a world where these words of Justice Frankfurter remain only words, what hero could save us anyway? Words matter. They’re as symbolic as every statue and every sculpture in which we’ve imbued our values and our histories, and history. You’ll note this is an observation about statues and sculptures, not a judgment about this statue or that sculpture. The reason I make this distinct is not to poke or agitate but, rather, to set up the following: a statue, a sculpture, a court ruling – any symbol – can manifest beyond elevated words. They can disseminate and dilute their way into biased hearts and minds if-and-when two things happen: the speaker of those words understands who’s listening, and the audience of hearts-and-minds knows how to incorporate them. At that point, we may actually see them become lived-out realities, and now we might argue that the symbol matters. Even so, I will argue that the speakers and the listeners, the thinkers and the doers, matter even more.

Ideologies are the assumptive roots of our division, and what’s to stop any one from gaining acceptance besides the overwhelming weight of conformity – the rule of law comes to mind, if might making right is not your thing. Symbols that represent values – yours, mine, anybody’s – may need explanatory context since they’ve arisen out of specific histories, but as censorship is an absolute, that sure rules out the audience. Does that make censorship destined only for battle, or can the outcomes of censorship be reached some other way? When disputants do become combatants, how is it determined that any were justified, not just petulant? Who even gets to say? Come now, don’t be naïve… as in any battle, to the winner go the spoils. Is that not frequently the motive to fight, or not always?

As for me, where I presently enjoy some measure of free speech, I seek no control over others, which maybe means I take no side in the battle… can that be possible? If yes, is it also palatable? I’m almost certain some will feel such a stance shirks responsibility. Could I be so certain unless I felt a tad guilty about it, myself? So am I this mere spectator? I claim to be no hero; I’m also no soldier, so… a diplomat? I’m trying not to be a recluse, so I’ve just laid out an argument of disinterest as amounting to uninterest?

I’ve been trying to comprehend and advocate for free speech insofar as its permissibility respects an audience to listen and think and decide on their own. In light of what I’ve been considering about speaker and audience, I’m almost prompted to recalling E. B. Hall’s overused summary of Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.” (What Hall meant has been the subject of discussion, but the gist isn’t lost in translation.)

As the ABA sees it, “… confused origins aside, this poetic pledge provides no guidance about how to defend what some would call the indefensible.” Debate “no guidance” as you will, but note, in critiquing Hall, they also qualify what “some” would call the indefensible; okay, indefensible to some, and how about to anyone else… see you on the battlefield, then? With due respect to Hall and Voltaire: I think no one needs to die. As for the ABA, they further suggest, “in a system in which debate on public issues is supposed to be uninhibited, robust, and wide open, there must be protection for the freedom to offend.” Bring it on then. Battle royale, although I’m pretty sure no one ever accused the ABA of defending extremism – that seems the lot of the ACLU.

Where ‘extreme’ might describe some sole belief, yet a remark about ‘extremist-them’ can only arise from a smidgen of self-awareness, so of its usage we may ask: is it diagnostic or defensive, analytic or strategic, cognizant or subconscious? Not so much why say or why call someone “extreme” but, rather, by what measure? How distantly do they pick up from where it is you left off? Meanwhile, ‘polarised’ must only mean more than one belief. Regardless, either ‘extreme’ or ‘polarised’, we are left recently with zero doubt as to the hazards wrought by both.

Moreover, accurate or not, calling a belief “extreme” leaves open the caller as being perceived to be the ‘other’ side of polarisation, if only in the eyes of the called. How distantly do they plot you, by their reckoning, as picking up from where they left off? As I put it in Part II: what might be the “immediate overwhelming interest which appeals to the feelings and distorts the judgment” of some other person’s perspective – furthermore, I now add, by whose judgment is “distortion” even understood? Who gets to say? Rather than wholeheartedly agreeing, from your current perspective, that the prescription to get up and move is great antidote for others, consider that it may just as well be directed at you as directed by you. Rightly or wrongly directed won’t even matter: there’s battle there to be engaged and, if chosen – by either side or both – then best categorically and decisively won.

Unless… we can still choose civility: added patience to listen, greater tolerance to withstand, plainer wisdom to reflect – reflect upon others, yes, but reflect upon ourselves: reflect upon where we’ve left off, yet maybe, more importantly, upon where we might pick back up? That’s again back to Part II… getting up and moving, yourself; being humble, not humbled.

Humility, self-awareness, tolerance, respect – how about courage, and integrity, and doing what we say: concepts are words, and words must be lived if they’re to have meaning. A denotation is found in the dictionary, but connotation lives. Concepts must be lived, or how else do we disentangle all the strands in the web of freedom? Even more fundamentally: who is “we”? If I brought some nachos, could you bring some board games?

Free speech has to do with nuance and discernment, with speaker, and speech, and audience. Listeners as well as speakers must clear some space for each other, even when they disagree – in fact, probably then most of all. That’s my advice and my aspiration, and this blog and its posts their symbol, a call to action even as they’re part of my act.

I opened this short series on free speech by considering bias – not good, not bad, just something we have. And though I’ve undoubtedly left some tell-tale clues, if anyone reading these posts still can’t quite weigh my politics or decide which ‘side’ I fall… I’ve tried to write down the middle and not for an audience who pumps a fist in agreement, or in rage. I’ve sought to perplex and bemuse and disturb the shit, for all. In fluctuating ratio I’ve tried to summon and stir all three appeals, toward some desired effect: I’ve tried to write for an audience who will read and wonder, and reflect, and want to chat some more – nothing else seemed right than to leave some space for you.

I daresay this series on free speech has likely provoked some out there to characterise me. And thus, as writers are commonly taught, I come full circle to the comfort I find in the statement I featured by Ellis Cose.

Let’s Not Just Chase the Wind

Since May 2020, the Rhetorical WHY has been on hiatus.

The ‘latest’ Rhetorical WHY was back in February, amounting to just three so far this year – contemplative posts about me and you and the world we all share.

Then came March, and so much more that has happened since.

After May 2020, and since, writing posts didn’t feel important. It seemed better just to listen.

Eventually, we can listen and also do more. So much remains for us to say and to do: allies, adversaries, committed or indifferent, whatever we choose makes a contribution.

The most difficult things we say and do may be found alongside those whom we detest and disagree with most of all – not just for you, but also for them. Listen, but with patience. Act, but still reflecting on yourself. Finding ways to live with each other is important, yet finding ways to live for each other might even be more important.

The world that continues, of our making, has always been shared as our responsibility.

The Bridge to Hell…

Peter Benson’s article, “Francis Fukuyama and the Perils of Identity,” in Philosophy Now (Issue 136), got me thinking again about multiculturalism. I’ve had plenty to say about multiculturalism – seldom positive – although none of it here on The Rhetorical WHY.

If you haven’t yet leaped to conclusions about me, I’ll point out that the full title of this post is “The Bridge to Hell is Paved with Problematic Intention.” It’s meant to be a little satirical, a little disparaging. It’s a wordy mash-up of axioms, cultural and academic. I’m okay with wordy this time.

I’m also conscious of the juxtaposition of my crude title and the wisdom of Dr. King. I’m less okay with this but felt the contrast worth any shock, ambiguity, or misapprehension.

Read on, and take issue as you must or as you will.

The Bridge to Hell is Paved with Problematic Intention

Has the trumpeting of multiculturalism taken itself so literally that even individualism (… multipersonism?) is insufficient?

Taking itself, as I say, more literally, multiculturalism sets one culture at equal stature with the rest – seems fair enough – apparently, a shift in meaning from diversity to inclusion, which implies that diversity wasn’t working on account of exclusion.

So, within Culture X or Culture Y, as we might imagine an individual being equal alongside other members, we can imagine across the two cultures potential impasse: “… unresolvable conflicts between mutually exclusive viewpoints [that] dominate the political landscape” (Benson, 2020). I still grant here individual differences, but I have in mind some divide between distinct communities of individuals, i.e. a divide between cultures.

In relation to Culture Y, for example, Culture X might deem its equality mere lip-service and feel de facto unequal: “How are we in Culture X obliged to consider those in Culture Y as ‘equal’ if our culture is not equal to theirs?

Image by MetsikGarden from Pixabay
Image by MetsikGarden from Pixabay

“How can we treat them as equals, much less be treated as equals, if our larger culture is not equal – that is, if Culture Y does not accept us on equal terms?” Culture Y might declare all individuals equal to begin with and counter that Culture X only perceives inequality. Yet this simply compounds the same injustice for Culture X, who will hardly waive their due consideration.

In any case, equality of cultures seems not the same thing and unable to play out to the same effect as equality of individuals – even more so since an individual who identifies with more than one culture might feel strewn across their own intersections. (Curiously, this assumes one’s identity to be chosen as much as bestowed, which echoes individualism as much as collectivism.) In fact, if equating cultures equates individuals, then equality rests further upon equity, a mantle of justice issuing from a superior authority.

Perhaps Culture Y lives by some unproblematic axiom, such as ‘might makes right’, ‘stay the course’, or even just ‘common sense’ while Culture X lives by ‘power to the people’, ‘diversity is strength’, or ‘revolution is no dinner party’. Can they bridge their divide? Is one culture responsible to reach across, as it were, halfway? We might define an obligation to come any distance according to power of authority. To be sure, imbalanced authority does seem a constant throughout history; for exactly this reason, though, would we expect the side with authority to yield?

I turn to Dr. King. In his time, a generation or two before mine, Dr. King sought and fought for equality and “the cause of peace and brotherhood,” there surely being little more equal than “a single garment of destiny” (King, 1963). As we are all, he claimed, paradoxically yet beautifully this makes us one. Standing upon the authority of centuries, of historical proclamation and practice, and there resting in long studied philosophy and lived experiences of spiritual belief, Dr. King challenged his brothers to bear witness upon themselves. Such authority remains as stable for those to come as for those preceding – that is, unless or until those to come decide to rest authority someplace else.

Image by John Hain from Pixabay
Image by John Hain from Pixabay

In our time, justice supersedes civility, and restitution tinges redress. The zeitgeist these days is emotional, distinctly angry. Individuals possess rights, and cultures bear responsibilities. “The politics of identity,” Benson says, “multiply conflicts and divisions.” As we ostensibly advocate for the equality of all individuals, identity politics fights a culture war, a battle for equity across cultures-of-particular-individuals, which actually precludes a wider equity. Cultural equality has supplanted individual equality because, where there is axiomatic ‘strength in numbers’, multiculturalism can only ever be ‘us vs them’. If so, is it still defensible? Is multiculturalism a way to ensure that our outcomes match our aims? Or are the aims of those with authority forever destined to pre-empt the aims of those without it? Indeed, what is the way to ensure that no one of all will ever be marginalised?

For one final point I turn to Benson (2020), not in comparison to Dr. King but out of respect for all being one: “Only when we stop having identities in the group-defined sense can we return to being individuals” (original emphasis). We may discover too late the folly of burning a bridge-too-far while crossing it.

Washington, DC (March 2014) - Day 4 - 101