Why Do You Care About Free Speech?

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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62 Responses

  1. Avatar Doctor Jay says:

    I liked this post, a lot. To me, the Charlie Hebdo situation illustrates how honor cultures are not very compatible with self-government. Most of us, when face with something that’s perhaps a bit puerile and shock-humor based, just roll our eyes and move on. But to someone in an honor culture, any insult must be met with violence, or one’s self is a thing of shame. Honor cultures, then, give the greatest place to those persons who are most capable and willing to carry out violence against anyone who offends them. Those persons are, of course, usually male.

    This, ahem, only sort-of works when you self-govern. You’ll see a lot of echoes of the honor culture of the Slave Power in the political discourse of the US, but they are only echoes and rhetoric, very few people actually carry out violent acts in defense of their honor.Report

    • Avatar Kimmi says:

      I think this is a rather dramatic misreading of honor cultures. Or perhaps you’re using a use of “honor culture” that I’m not familiar with. Although I have to say, if the Yakuza don’t fall under your use of “honor culture” — maybe use different words?Report

      • Avatar Burt Likko says:

        Yakuza, Mafia, etc. sub-cultures may be honor-driven. Or they may not be. They might be driven principally by greed.

        The sense of honor that might pervade those sub-cultures may drive them to engage in morally abhorrent acts. Or the motives for those acts might come from some other source (greed, enforcement of hierarchy). Or the purported code of honor might be intentionally subverted and manipulated to the ends of a cynical leader. Or the code of honor may cause these criminals to refrain from certain kinds of criminal acts and resolve their disputes in some other way.

        You may have an interesting thought to share here, @kimmi , but as written the comment skips some important intellectual steps.Report

  2. Avatar j r says:

    We might have started out that way. When you are 13, it seems daring and provocative to “épater la bourgeoisie,” to stick a finger in the eye of authority, to ridicule other people’s religious beliefs.

    This conversation is full of so many downright stupid and wrong comparisons and analogies. I guess it was only a matter of time before the NY Times editorial folks weighed in with some of the wrongest.

    Drawing cartoons is only analogous to sticking a finger in the eye of authority if you begin with the premise that the eye of authority extends to everywhere and anywhere. On second thought, maybe that isn’t such a stupid analogy.

    As Tyler Cowen might say, maybe there is a Straussian reading here.Report

    • Avatar Glyph says:

      Drawing cartoons is only analogous to sticking a finger in the eye of authority if you begin with the premise that the eye of authority extends to everywhere and anywhere

      And also if you cede any “authority” at all to a religion not your own.Report

      • Avatar Burt Likko says:

        Or religion in general?

        If so, how do we square that with the ideal of religious pluralism, culturally and legally?Report

      • Avatar Glyph says:

        @burt-likko – Or religion in general? I carefully worded my comment in such a way that it encompassed that also, I thought. That is, if people want to cede authority to their own religion, they should have at. But they should not expect others to do so.

        If so, how do we square that with the ideal of religious pluralism, culturally and legally?

        Legally at least, by trying to keep the govt. out of the business of making value judgements related to religion, or more broadly, conscience.

        A tangent, that may or may not illustrate what I mean – a while back I gave a hypo related to hate crime laws. Say I am an ethically-shady food truck operator who advertises kosher/halal foods, but one week I get a crazy good deal from my supplier on some perfectly-good pork. Thinking that I use so much spice that I can easily pass off the pork as chicken, I do so to my primarily Jewish and Muslim customers, but I get caught.

        My position was that I should be charged with any variety of “bait and switch” or fraud laws, for selling food X as food Y – that is, failing to sell what was advertised/promised, and deceiving my customers.

        But I should NOT be charged with hate crimes etc., because what I did did not harm customers in any way other than “spiritually”, which is not under the govt.’s authority. Mike S. pointed out that his father (who kept kosher) had once accidentally been served non-kosher food, and when he found out what he had unknowingly eaten, he became violently ill.

        I am sympathetic to that mental distress, but it seems dicey to me to get the government involved in that part, since it now has to assess damages from illness that is, essentially, psychosomatic; which is different from harms we can more easily quantify and mostly all agree on, like salmonella poisoning.

        EDITED TO ADD: It also privileges members of these religions, over non-members; by assessing more damage to religious people, and punishing the perpetrator more harshly than he would otherwise be punished for the exact same crime of selling food X as food Y. Again, this seems inconsistent with a pluralistic, religiously-egalitarian society.Report

      • Avatar Kimmi says:

        Glyph,
        Our government (judges) routinely assesses damage based on back pain, which is nearly always psychosomatic (barring actual “slipped disc” issues). Just because you don’t like the psychosomatic pathway currently being activated, doesn’t mean we can’t assess harm (though we might want to reduce the damages assessed). In fact, I’m pretty sure that if you destroyed some of our psychosomatic pathways, there would be damages from that (I’m thinking in particular some of the sexual ones, because that’s an easy sell to a jury).Report

    • Avatar James Hanley says:

      What Brooks really misses is that sticking a finger in the eye of authority is the ultimate “punching up.” It can never truly be condemnable, simply because authority is inherently so dangerous.Report

      • Never is a big word, but true enough.

        But that assumes you only get your finger in authority’s eye. Punching religious symbols (not that I have to tell you this) may put a finger in some authorities’ eyes, but it puts one in the eye of a lot of people who are not authorities, too. Which doesn’t mean you never do it. But using good judgement is a good thing.Report

      • Avatar LeeEsq says:

        @james-hanley It depends on who is or who is not an authority figure though. The cartoonists ate Charlie Hebdo might have thought that all religious figures are authority figures in their continental anti-clerical fashion. Muslims might have seen them as a bunch of white guys making fun of them and something that doesn’t concern them.Report

      • Avatar James Hanley says:

        I was just commenting on the “poking authority” bit, and you both agree, but nevertheless you both feel the need to redirect the conversation to critique something I wasn’t saying?

        Fish you both.Report

      • Just because we agree (I’m only almost with you on the extent of what you say) doesn’t mean there isn’t an important delineation to be made of how far the point goes toward the main thrust of what’s being talked about. From your comment it’s not clear whether you thought that the actual subject of all this is an example of the kind of authority-poking that Brooks thinks is juvenile and you think is beyond true reproach. You can be mad, but I don;t feel bad about clarifying whether a given point made in a thread bears on the larger topic of the post/thread.

        If my asking about the earlier comments by Johanna was overstepping, I do apologize.Report

      • Avatar James Hanley says:

        @michael-drew

        As I just wrote on the other thread, I’m having a hard time discerning a decent reason why you would have needed to “confirm., the identity of the writer. Did the substance of her words not stand or fall on their own? Did you doubt her ability to write intelligently? I notice you made no follow-up substantive response–did you want to argue if it was I who had written them?

        As to your comment here, I’m well past bored with your sophomoric approach of always needing to find a point of argument even when you’re largely in agreement. You could have said, “given some agreement on what counts as authority, I agree.” But with you it’s always the other way around–you nearly always focus on the point if disagreement, no matter how abstruse. You appear to be working hard to search for points of disagreement to attack–in your argument with Will as well–so that no matter what substantive argument is put forth, you can find some little imperfection, some possible implication, to argue about.

        You are like the college kid in a philosophy class who devotes his effort to finding critiqueable lines in the readings, rather than putting effort toward sincerely trying to understand what the author is saying, under the misguided impression that it is a demonstration of intelligence.

        And yet you rarely make a clear substantive argument of your own. The closest you come is this trite pusillanimous assertion that ” using judgement is good.”

        Ball up. Put yourself out there with a real substantive argument of your own instead of just a series of marginal critiques. I respect you less than any other commenter here because your style is the most cowardly. I’d much rather argue with someone like LWA, who is in fundamental disagreement with me, and in my opinion radically wrong and dangerous, because by god he’ll argue for something, instead of just trying to catch someone in some very marginal point they didn’t yet address to your complete satisfaction.Report

      • It was different from what I might have expected you to say, so I wondered if it was the case that maybe you were saying something unexpected. After all, in my experience most of the times when a comment appears under her name, it turns out to be you. If asking that was not decent, as I say i sincerely apologize.

        I agree that saying that using judgement is valuable (like mockery) would seem to be not much of a statement usually. But on this topic, for some of those leading the discussion, it seems to be quite controversial indeed to make the point. And the notion that judgement in what to say has to go hand-in-hand with the freedom of expression – if we can’t agree that it shouldn’t be controversial to point that notion’s value out – seems to me to be something worth pausing on and hashing out.

        In my opinion you take it too personally when I have something to say about what you’ve said that isn’t in direct disagreement but also isn’t in full agreement – that’s related and additional but not a challenge. You think I’m just looking for something to pick at, as if, if I’m not I’m major disagreement, I have some obligation to stifle related thoughts I might have. i’m not looking for a reason to find any disagreement. But sometimes, I think you raise points that are orthogonal to either the main point being discussed, or another related point that I think is important. So I make that point – either about how your point is orthogonal to the main point, or I just make my own point. That’s what’s going on here. It’s not about finding any little thing I can on to disagree with you about.

        As I’ve said before when you’ve said you don’t respect me: I do respect you. Again, I apologize if I overstepped before.Report

      • Avatar j r says:

        Punching religious symbols (not that I have to tell you this) may put a finger in some authorities’ eyes, but it puts one in the eye of a lot of people who are not authorities, too.

        I have to cosign what @james-hanley says, minus the “fish you” part.

        You guys both agree that Brooks’ analogy is stupid, but you’re trying to save it by bringing up some non sequitur argument. Sometimes people criticize the American government. And sometimes individual citizens take that criticism personally. It does not follow that people should pull any punches in criticizing authority.

        Further, poking someone in the eye is an interpersonal act. It requires getting up close to that person, making an aggressive move towards their face, and physical assaulting them. There is no way in which publishing a cartoon in a satirical magazine is like poking someone in the eye.

        And if satire, or puerile humor, ever rises to the level of poking authority in the eye, that is probably a sign that authority has its eye where authority does not belong. Of course, to a soft authoritarian like Brooks, authority belongs everywhere.Report

      • Avatar Michael Drew says:

        I’m not trying to save Brooks’ argument.

        Your point about having to get up close in order to poke someone with a cartoon or whatever is literalism gone just insanely amok – in a discussion that is proceeding almost entirely through the medium of metaphor. Just ridiculous.Report

      • Avatar James Hanley says:

        MD,

        The respect of those I disdain is of no concern to me.Report

      • I do respect you.

        But you’re also ridiculous.Report

  3. Avatar LeeEsq says:

    I say that free speech is an inherent good because the alternatives to free speech are much worse.

    In might seem strange but for most of American history, pornography was not perceived as protected speech. The Federal government used its powers over the postal system to censor any sort of work that could be seen as pornographic. The problem was that nobody could agree on what constituted pornographic material. To some especially prudish Americans, medical treastises on human reproduction were pornographic because you had to talk about sex. Others had a more restricted view of pornography. The Supreme Court long struggled to come up with a working legal definition of obscenity. By the early 1970s, officials gave up the ghost and said as long as it involves consenting adults it is fine and protected.

    You have the same problem with hate speech. In the absence of slurs and other obvious markers, how do you distinguish between hate speeh and valid but harsh outside criticism? You really can’t. What might be hateful to one person could be valid criticism to another.

    Free speech is a simple and most workable solution to these problems.Report

    • Avatar Murali says:

      @leeesq
      I say that free speech is an inherent good because the alternatives to free speech are much worse.
      You use that word*. I do not think it means what you think it means

      *inherent goodReport

  4. Avatar TrexPushups says:

    So for me free speech is directly of importance.

    You enforce blasphemy laws and now I can’t talk about my view of religion.

    You restrict protest and now people can’t stand up for justice.

    You make it illegal for the Westboro assholes to wave their shitty signs and you cover up the ugly parts of America and just let them fester.Report

  5. Avatar Guy says:

    I’ll support B-D, to varying degrees. B deserves some caveats about the power of people both foolish and loud, but it’s generally pretty reasonable. C I will accept given that we are, for better or worse, attempting to be a self-governing society. I think it’s for the better, but more to the point it is the state of things. D is also true and practical. I reject A because it takes a lot for me to call something an “inherent” good; free speech is very good indeed, but none of that goodness is inherent to the concept. I also reject E; I don’t think it’s true, especially in the wake of the Charlie Hebdo murders.Report

    • Avatar Burt Likko says:

      Heh. After writing this and thinking about it while preparing to write it, I came to the conclusion that E) is the most important. Of course, I think that reason E) applies with equal force to due process of law, too, which is something else that I’m not entirely sure people like in practice as opposed to theory. So it seems to me that the Charlie Hebdo murders are a reflection not of the fact that free speech enables peaceful hashing-out of differences, but rather a failure of the murderers to buy in to the idea that free speech is a dispute resolution mechanism in the first place.Report

      • Avatar Guy says:

        I suppose so. I think I’d call that a consequence of everyone involved accepting free speech, rather than a direct consequence of free speech itself, but at this point I’m just quibbling over rhetoric.Report

  6. It strikes me that if we are this unsure about why even to elevate the value in the first place, it’s likely pretty reasonable to hold a position on how highly it should be elevated that is a few exceptions short of an absolute, totalizing defense of the fact of (if not the content of) any expression anywhere in the name of the freedom to make that expression.

    IOW, I don’t see an argument for all-or-nothing here. I see plausible arguments for very broadly free speech. Too many exceptions and you start to fairly obviously raise the question of whether any speech is free, or only not-restricted-yet. But a few that have supermajority agreement? Will the rest come crashing down? We’ve had those exceptions for a while now… Chicken Little hasn’t been proven right yet.Report

  7. Avatar nevermoor says:

    If free speech isn’t important, why is it the first thing that totalitarian governments shut down?

    Orwell had this dead right in 1984: the way we discuss things governs the way we think about and react to them.Report

  8. Avatar Rufus F. says:

    I think that free speech is a sacred value. In fact, I’d kill anyone who slandered it!

    (Dumb joke- not in reference to the post)Report

  9. Avatar Richards says:

    I think free speech is an overall good.

    I suspect that for those with a particular ax to grind, the practice of free speech may sometimes be spectacularly intoxicating. In that light I’d recommend that, like all intoxicants, free speech should be used responsibly.Report

    • Avatar Kazzy says:

      This. I didn’t read either quote as a condemnation of free speech, but rather an acknowledgement that free speech can lead to ugliness. And that free speech is best employed purposefully and comstructively. If given the choice of:
      A) Free speech plus 4Chan
      B) Free speech minus 4Chan simply because no one saw fit to create 4Chan
      C) No 4Chan through restrictions on free speech
      I’d rank my order of preference B, A, [huge gap] C.

      Free speech is good. But not all free speech is good. Some of it is downright shitty. But that’s a price we pay for free speech.Report

  10. Avatar Pinky says:

    A – Is free speech an inherent good? Not necessarily. It seems to me self-evident that freedom of conscience is an inherent good. Free speech tends to support free conscience, but they’re not the same thing. I’m fine with calling freedom of conscience an inherent good; some truths are self-evident.

    D – I’m not sure exactly where the circle is, but this feels like a circular argument.

    B, C, and E – “Animals are a lot like people, Mrs. Simpson: some of them act badly because they’ve had a hard life or have been mistreated. But, like people, some of them are just jerks.” Free speech doesn’t prevent jerkiness. Jefferson was wrong. Knowledge doesn’t necessarily lead to virtue.Report

    • Avatar Murali says:

      some truths are self-evident.

      In order for a given truth to be self evident, its truth must logically follow from its meaning. Things don’t become self evident just because you or some sainted founder declared it by fiat.Report

      • Avatar j r says:

        The logic of Enlightenment thinking is pretty clearly laid out in any number of places. No one declared any of this by fiat.

        In this case, the simplified version is that each person’s mind and body and voice and conscience is quite clearly a property of him or her; therefore it logically follows that he or she has more authority over his or her own thoughts, speech and expressions than any other person. That is the philosophical grounding for the freedom of speech and expression.Report

      • Avatar Pinky says:

        “Things don’t become self evident just because you or some sainted founder declared it by fiat.”

        Agreed. If a thing is self-evident, it doesn’t require my assent or that of some founder. A fiat is “let it be so”. A self-evident truth doesn’t need permission.Report

  11. Avatar James K says:

    While I take Chu’s point about not punching down, surely the direction of the punch depends on what you think the target is.

    Are the cartoons in question targeting Islam as a religion and / or Islamism as an ideology, are they targeting Muslims in general or are they targeting French Muslims in particular.

    Islamism is a dangerous and hateful ideology, and deserves any barbs thrown its way. Islam is more complicated, but like any religion, it is an idea and ideas do not deserve protection from mockery. Insulating thoughts from criticism or mockery is the death of thought.

    So are these cartoons mocking people or ideas? That seems like the central question before we can decide whether their satire was reasonable or not.Report

  12. Avatar zic says:

    Excellent post, @burt-likko.

    I think the concept of ‘free speech’ does not mean anything goes; and what threats of violence and intimidation of others are my concern here.

    So it’s okay to say, for instance, that that feminist is a douchebag, that’s an espression of freespeech. It is not okay to call for her rape while you call her a douchebag; that’s a threat against her physical safety. Another example is porn — it’s okay to have porn of consenting adults; put a child in the starring role, and it’s harm.

    When it comes to emotional harms, this gets dicey. Does dissing a religion encourage people to commit acts of violence against that group? Does too much public dissing of a religion cause the people who exercise that religion fear to assemble to worship or publicly wear indicators of their religion? I’m quite certain such things happen; I don’t know how to handle them. I’ve spent my life as a gender that suffers limitations because of the speech of others; I’ve been grateful to see that suffering diminish; and I know beyond shadow of doubt much of that suffering has happened because other women have freely spoken out against it.

    With religion, I think @glyph gets at an important point above; And also if you cede any “authority” at all to a religion not your own. Freedom to exercise your religion, your belief, has to include freedom to not exercise religion not your belief that someone else is trying to impose. I know I sound a broken record on this, too. Others have a right to insult it, to suggest it’s voodoo and fairy tale, or whatever. But just as it’s not cool to threaten someone because of their beliefs, it’s not cool to impose belief. That’s not belief, it’s abuse. The needle threads in the middle; and this anguish over words dances on the fringes of those two wrongs.Report

  13. I get your caveat about (A) being maybe just an intuition, I’d put in a good word for it anyway: Being able to express oneself is an important part of human dignity and autonomy. This is where I’d want to throw in some Kantian kingdom-of-ends stuff, which I know won’t be well received. But removing this capacity and still expecting fully realized humans in your society strikes me as very unreasonable.

    Anyway. If A doesn’t satisfy, I’d suggest that you have forgotten another rationale for free speech: Speech may be bad, and quite often it is, but the repression of speech is typically much worse. I’d accept a 4chan full of channers WAY before I’d accept a prison full of channers.Report

    • Avatar Burt Likko says:

      In my mind, your second rationale basically is, or is very similar to, my rationale “D”: channers gonna chan, so punishing them for it wastes resources. Perhaps you meant something different?Report

    • Avatar Chris says:

      I’ll actually sign on to the Kantian justification, because I think it’s the best one, particularly if we want a fairly broad protection of speech, rather than one that can be pretty easily changed within context. That is, an instrumental defense of the freedom of speech, or a consequentialist one, even of the “better speech than a bunch of speakers in jail” sort, are going to produce a moving window of what is and what is not better than people in jail. For example, we might have very different legal standards in a time of war.Report

      • Avatar Murali says:

        @jason-kuznicki @chris

        The kingdom of ends argument doesn’t prove as much as you think it does. All the kingdom of ends argument shows is that in order to legislate as if you are in a kingdom of ends, each person has a sphere of inviolable autonomy. But it is unclear exactly what this sphere protects! How would we know that it protects all forms of speech? How do we know it protects pornography? or blasphemy? Those I think are the harder questions not immediately answerable on the basis of the Kantian argument.Report

      • Avatar Chris says:

        Murali, you’ll get no argument from me that it doesn’t answer all of the questions, but it answers the most important one, which is that the value of free speech is not a merely instrumental one, but one that concerns the very nature of what it means to be human, and what is needed for the possibility of the full realization of human potential. When imperative meets concrete, things get messy, of course, but at least we’ve established why free speech is valuable, and established it in such a way that mere instrumental concerns cannot challenge that value in itself.Report

      • Avatar Murali says:

        @chris

        We don’t even know that it covers speech simpliciter. These other issues are central to the point about free speech. By free speech, we mean it roughly as it is protected by the 1st amendment in the US constitution. And that requires protection of every sort of speech except the fire in a theatre case and the hit contract. If the argument is unclear about which sorts of speech it protects then it fails to establish the importance of free speech.Report

      • Avatar Chris says:

        Ah, I think this means speech in a more abstract sense: self-expression (which is what Jason calls it, “being able to express oneself.” Even within the ideal context of the Kingdom of Ends, there will be limits, of course: acts of expression that treat others as merely ends, but any justification for limiting it will have to take the fact that it is an integral part of the individual as an end in him or herself. “Fire” in a crowded theater becomes a fairly clear example, but my of what we currently proscribe might not (while other things might, perhaps even some instances of blasphemy).Report

  14. Avatar Jaybird says:

    I don’t know that I am an advocate for free speech as much as I know that I shouldn’t make you shut up. By what right ought I be allowed to make you stop talking?

    “Sorry, you can’t say that, and if you continue to say that, I will hit you until you stop saying that.”

    Going into some seriously wacky places, maybe I could see individuals being upset about their own social security numbers being publicized or, in a stretch, the government saying that nuclear secrets or the formula for the coating for the stealth fighters shouldn’t be publicized or even Poulet Frit Kentucky arguing that people shouldn’t say what their 11 secret herbs and spices are. Sure, I can see arguing that someone else shouldn’t publicize my privately held secrets…

    I’m having trouble coming to a statement about a philosophy that would qualify as being similar to giving away someone else’s social security number.

    Perhaps “there isn’t an Allah, Mohammed didn’t talk to the Angel Gabriel, and the Koran was written without any divine inspiration at all” is giving away a secret.

    In any case, if I don’t see how I can make you shut up, I don’t see where you get the authority to make me shut up. Or other people, for that matter.Report

  15. Concerning the Jon Steward quote, I agree almost 100% with what he said there.

    As for “A”: Like someone else above (I forget who), I have a hard time calling anything an “inherent” good. That doesn’t mean I take the position it’s not an inherent good, just that I’m not yet ready to call it such. In fact, I do think on an intuitive level that it might be. But maybe it’s more like Pinky said, freedom of conscience might be an inherent good and freedom of speech might be a good incident to that.Report

  16. Avatar Roger says:

    To defend free speech requires contemplating what communication is used for, and that is what we are really talking about — communication.

    Communication is necessary to cooperate effectively.

    Communication is necessary to share ideas and knowledge.

    Communication is necessary to track and share and monitor and influence others’ behavior (over half of all communication in forager societies is gossip)

    Communication is necessary to organize and coordinate larger groups against competing elite interests.

    Communication is necessary to share and explore and rationally critique alternative paths or solutions to common social problems.

    Communication is thus a coordinating device for large scale human cooperation. Free speech in political arenas is like rational argumentation in science and freedom of entry and exit in markets.Report

  17. Avatar Will H. says:

    There are a couple of really huge things that I believe are missing from this conversation.
    Jaybird and Roger touched on one of them above; which is, essentially, what exactly does it mean to “protect” speech? Hanley’s article cited some lady that wanted criminal action; which strikes me as another misguided knee-jerk “Illegalize It!” argument, based on the notion that, if a thing is not set apart as a criminal offense, then insufficient condemnation has taken place. Part of the popularity of such arguments is likely a sense of insufficiency of self; that only the most heavy-handed of acts may be taken as amenable.
    I get sick of hearing such arguments, because it reminds me of a girlfriend who felt she needed to break things in an argument, or her anger was insufficiently expressed. It’s ok to be angry without breaking things, and it’s ok to condemn something without making it illegal.

    We know that commercial speech is regulated differently than political speech. (Here I differ from @zic ‘s position as expressed above concerning pornography, as, to me, pornography is a commercial endeavor and subject to commercial regulation.) A “work of art” is regulated differently than advertisements.
    “To Protect” means something.
    How is it that speech can be “protected” without some sort of external grill worn over the mouth, like they had Hannibal Lector in in that one movie.

    The other thing is being able to see an event from a event trigger.
    I can tell you right now, no matter what anyone may say to the contrary, no one was harmed due to some cartoon.
    It’s a matter entirely of diaspora populations, and has nothing whatever to do with religion. After many insults came the straw that broke the camel’s back– nothing more.

    Also lost in there is the concept that public speech, and public speech only, is protected; as defamation cannot exist as a matter of purely private speech.

    Additionally, @glyph ‘s hypothetical of the counterfeit vendor, if I were the prosecutor, I would definitely consider prosecuting it as a hate crime. The deciding factor is that the vendor intentionally targeted persons of specific religious beliefs.
    That said, I do believe in “prosecutorial discretion” as something more than a euphemism for “charge the max on every occasion.” The answer to “How long was this going on?” would be key to deciding what charges to bring. There are all kinds of ways to make a guy’s life hell by jacking with his licensing and such. Make the punishment fit the crime; and without a dangerous intermingling of criminal law with the courts of equity.

    I have to wonder about how many of the Really Upset People from Hanley’s article supported hate crime sentencing for the Amish beard-cutting incidents.
    That’ll show those Amish bastards they can’t go interfering with Amish beliefs.Report

    • Avatar Matty says:

      Surely cutting someone’s beard without their permission is assault regardless of why they grew it or you want to cut it?Report

    • Avatar Glyph says:

      @will-h (hi, by the way. We missed you).

      hypothetical of the counterfeit vendor, if I were the prosecutor, I would definitely consider prosecuting it as a hate crime. The deciding factor is that the vendor intentionally targeted persons of specific religious beliefs.

      I guess I am unsure why the “targeting” matters, when assessing the “harm” is damn near impossible – the harm is spiritual, intangible, and highly contested by people who do not share those beliefs.

      Fraud, yes; the vendor said the meat was X when it was Y. Fine, yes, absolutely. Cut someone’s beard? That is assault, plain and simple, book ’em for it.

      But this notion that someone has been “desecrated” or “made impure” is entirely outside the govt.’s purview, because it requires the govt. to take a stand on the truth of that statement; or at least privilege the beliefs of those who believe it is true, over those who do not believe it true.

      If you have an inordinate fear of ghosts, and you have a tchotchke over your door that you deem a “ghost-guard”, and I steal that, leaving you vulnerable, in your mind, to ghosts – have I committed a “hate crime” by violating your beliefs?

      Or am I just a jerk, and a thief?

      (Now, at the time I was making these arguments, Mike S. and, oddly enough, TVD, both made the argument that the govt. stepping in and prosecuting these sorts of crimes as hate crimes helps quash internecine squabbling amongst religious or racial groups before they become full-on open conflicts; by showing them that the protection of their beliefs and lifestyle is taken seriously, it prevents them from taking revenge into their own hands in an ever-escalating tit-for-tat cycle. I think there is some validity to this view, but I can’t say I am crazy about how we get there, which, as I say, I think is logically inconsistent with wishing the govt. not take a stand at all on one religion or another. Maybe MY religion says your “ghost-guard” religion is false, and obligates me to steal your ghost-guard to prevent you from leading others astray….well, what now?)Report

      • Avatar Will H. says:

        Anyway, hate crimes are about the intent of the actor (“I hate you!”) rather than the status oif the victim (“I am hated– by someone, somewhere…”).
        I think you’ve missed the basis of criminality in the suggestion that whether targeting persons for fraud on the basis of religious beliefs is a hate crime. It doesn’t require a judgment call.
        Even though I think it’s out-dated as a system of law, it comes back to property interests and the right of disposal (“Philosophy of Law” comes in the Fall term, and I’m looking forward to it. If the instructor knew what I was thinking, she would probably be dreading it.). I think it’s similar to the property interest inherent in virginity.
        A person has a right to integrity of body function, and the fraud interferes with that.

        What happens when the switch is an accident poses a more interesting question on the fraud end, but it couldn’t be a hate crime without the intent. There is no state of mind requirement in negligence actions.

        The tchotchke stealing may or may not be a hate crime in a technical sense, depending on the motivation of the actor. There are limitations on hate crimes, that they need occur among some protected group, and that’s where the gov’t judgment call comes in.

        Thanks for responding. And thanks for including the other positions in your comment.
        I’ve missed you guys too, but I’ll soon have a 1-hr commute either way, which will put a damper on my time. I need to find something to fill that dead space.
        I was thinking last night about some correspondence with Elias after the 2012 elections, and the position-hardening that takes place. Maybe being gone from the internet in 2016 would be a good thing.
        It’s the stuff like you mention above, where two guys way far apart come to an agreement on an issue, that makes this site appealing to me (even though it was Rufus F.’s “Blogging the Canon” series that made me a regular here– I’m going to grow up to be the president of his fan club…).Report

    • Avatar zic says:

      @will-h sorry, I just saw this. Minor correction: Here I differ from@zic‘s position as expressed above concerning pornography That’s not my position, that’s the position of the Supreme Court.Report

      • Avatar Will H. says:

        Then it’s dicta, and means very little.
        That’s one area where care needs to be taken to avoid error, because sometimes the connections are a bit hidden (and often out in the open). I suppose the prime example would be my own search for the exact timing of the joining of the courts of law with the courts of equity in the federal system. There were two different years cited, and there was some question. Actually, the answer is pretty simple. It’s Rule 2 of the Federal Rules of Civil Procedure:

        There shall be one form of action– the civil action.

        It’s one of my favorite Rules (the other is 8(e)), and it means precisely what it says–refers only to the form of the action. But the conflicting dates came in from where the Rule was approved and when it went into effect.

        I’m only a student here (not really a lot of work in “circuit splits,” I realize…) but I read voraciously.
        I was thinking about commenting on a comment Tod K. left on another thread the other day about something similar, and I’ll kill two birds with one stone here.

        The notion that a federal court upheld child support for an under-age male in a molestation scenario is mostly meaningless. The word “mostly” is key here.
        The reason is that maintenance and support obligations are entirely a matter of state law. By the time something like that gets to a federal court, what they’re looking at is most likely due process violations. If it was only about the money,would have to be an amount greater than $75k, and the two residents of different states.
        So, what “A federal court has upheld this” means this context (most probably) is that no due process violations were found (and they were most likely looking for substantive due process violations).

        In the pornography inquiry, consent of adults is not a necessary element. Were there only a single performer, the inquiry would be the same (in this context). Were there only a single person producing the material, or a single person acting as consumer is irrelevant.
        The fact is that there are all types of regulations concerning pornography other than the consent of adults; e.g., so many feet away from a school, and so on. Pornography is commercial speech, which is subject to heavy regulation.
        Without even reading the case, I can state fairly confidently that the bit about consenting adults is dicta; otherwise, a case where the consent of adults in the production, distribution, and consumption of pornography would have to come up, and I don’t see the SCOTUS accepting the petition for such a case. The consent itself would have to be at issue, and the law is fairly well established regarding consent.
        It’s not “meaningless” per se, but it means something other than what it would as a stand-alone statement. It’s dicta.Report

  18. Avatar Matty says:

    I tend towards the view that free speech may or may not be good but restricting speech is usually bad. Or to put it another way there are such things are dangerous ideas but one of the most dangerous is the idea that there is some subset of humanity who are qualified to decide what ideas the rest get to hear about.Report

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