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 almost 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.

“… Whose the Forest of Them All?” See What I Did There?

Imagine somebody offers you a friendly smile, but you snarl back. What might be their next reaction? Would they be amused and take it as a friendly jibe, just typical “you”? I suppose that would depend on how well they knew you. Would they be bemused because they don’t know you so well? Really, snarling at a friendly smile…? We’re perfect strangers, for goodness’ sake! Would they be confused because they’re not from around here and just can’t reckon the response in any way? A person’s reaction to your snarl might conceivably be anything—it depends on so many factors, and even in these three suggestions, one can find how-many-more details, nuances, and possibilities that take things further. Any “next reaction,” you might finally conclude, just depends on the person.

That response, “it depends,” is often criticised as merely wishy-washy yet, apparently, there’s an ironic ring of absoluteness to it, like the postmodern clarion call that nothing is true except for this statement. The reason I pose the scenario at all is to consider who really provides us with our sense of self. Supposing this person smiled at me, I might snarl in the first way, as a jibe, because I’m sure they’ll get the joke. But what if they don’t get it? What if this person even knows me pretty well, and they just don’t get it, not this time? Or what if they feel this just wasn’t the time for joking around? Their next reaction will depend on these and / or plenty of other factors. But again, I raise the scenario to consider how we gather—or, no no, to consider who really provides us—with our sense of self.

And there you have it, the issue: do we each gather our own sense of self, internally, or do others provide us with our sense of self, externally?

I don’t want to revert simply to the nature-nurture argument or chicken-and-the-egg. We seem inescapably bound to considering these by degree—hence, the absolutism that it depends. So, then, to consider by degree… the metaphor I have in mind is that of a mirror. Something someone does induces a response from me. Subsequently, what I provoke in that other person can tell me something more about myself, so long as I’m willing (and able?) to discern my self—myself?—from what they reflect. Whatever next reaction of theirs follows my snarl, this other person’s reaction serves as a mirrored reflection of me, at least insofar as this other person is concerned. If they laugh at my snarl, then hey, I guess they affirm me as a friend with an appropriate sense of humour; the jibe is appreciated, and maybe we’re even a little closer friends than before. Their positive reaction is my feedback, like looking at myself in a mirror, and my sense of self is in some way provoked on account of them by what they reflect.

I suppose there’s room to discuss a lack of empathy, here, even sociopathic behaviour—these seem also to be part of that endless list of details, nuances, and possibilities. But in acknowledging them, let’s leave them for another day.

If my snarl induces a frown from the other person, or some kind of puzzlement or disapproval, then what they affirm for me is less friendly or wonderful, yet may be just as clear—maybe they snarl back, even more fiercely, or maybe they stomp away with clenched fists. Maybe now I feel worried, in which case my sense of self could suffer from insecurity or dismay—oh dear, they didn’t get the joke! Or maybe they are saddened, and I feel smug—take that, you deserve it—or hostile—get lost, I never liked you anyway—which reinforces my sense of superiority, some kind of self-importance. The list of possibilities goes on—it depends—but, in any case, I’m able to find myself reaffirmed by that other person’s reaction. I’m “able to” because my snarl clearly exposes my stake in how this other person influences the way I consider my sense of self: why would I even take notice of them in the first place, much less snarl, much less take concern of their next reaction, if they meant nothing to me?

The point is that the other person’s reaction provides me a measure, a reason, a reflection by which to gauge my self as myself. Basically, thank you, because I couldn’t do it without you and everybody else, and you’re welcome because neither could you without me, or everybody else.

Now, pretend there are no other people—you, alone, exist as the sole human being. You happen to be walking through a grove of, say, birch trees, obviously getting no reactions as we’ve just considered about smiles and snarls. But as the wind whishes by, fluttering leaves and swaying branches, you take in the world around you with a relative means of judgment that wades through various combinations of reactors provoking reactions from reactees: Are the trees reacting to me? Is the wind reacting to me, or the trees to the wind? and so forth. You can see all sorts of things happening, but how can you be sure what provokes or reflects what else? Some songbirds are flitting about, high up in the branches: Are they chirping at me? You might not even call them “song” birds (that is, if you even had language—what need for language, really, as one sole person?) For all we know, the birds would actually scare you, and you might rightly call them “scarebirds” or something—in this pretend scenario, with you the sole human being, we’re also pretending that you know nothing in the way of biology or flora or fauna. Those are ways of understanding the world developed in the real life community of human beings, not in some pretend scenario of solo existence.

In that land of pretend, after weeks of sunshine, what might be your sense of self on the day it rained, or on the day the leaves yellowed and fell to the ground in heavier, colder winds? Would you even be considering your “self” apart from the entirety of what surrounds you? Here we are, again, at nature-nurture, only this time you might conceivably consider the two in synthesis: not as separately discrete influences—there is nature, and there is nurture—but as one-and-the-same, naturenurture, thereby placing you into the world of existence as part-of-a-greater-whole. Your sense of self could conceivably be more cosmic, in that literal sense of orderliness, and more holistic, in that sense of connectedness. To mix metaphors, you might feel a mere cog in the wheel, a mere wheel of the gears, yet entirely necessary, just the same. Or how about this: I wonder how imperative my right hand feels, as compared to my left, when I write with a pen, but they’re both pretty important when I play golf.

We can conceivably warrant our selves to ourselves, but—as we step back into the land of real life and other people—we cannot live in total oblivion of the people around us. I grant the possibility of living within ourselves as our selves, rendering the responses and reactions of any one, and those alongside, as nothing other than colliding self-interests, but still… That other people can authorize our sense of self—your sense, my sense—seems as inescapable, as definite, as did nature-nurture or chicken-and-the-egg.

In this little thought experiment, I’ve been wondering whether we each sense our self as reflective of the reactions we induce. How much do we incorporate the feedback we get after snarling at a friendly smile? Do we see that other person as though staring at ourselves in a mirror? And, if so, does that mean we’re each of us necessarily, essentially, and thereby compellingly part of a greater whole? Like trees of a forest, or cogs in a wheel, or limbs to a body? For all this, maybe it’s only an issue because we’re able to raise such questions, to begin with.