A More Modest Defense of Free Speech


Vikram Bath

Vikram Bath is the pseudonym of a former business school professor living in the United States with his wife, daughter, and dog. (Dog pictured.) His current interests include amateur philosophy of science, business, and economics. Tweet at him at @vikrambath1.

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95 Responses

  1. Avatar Jaybird says:

    My team is ascendant and your team is waning. Why in the heck would I trade the advantage of you not speaking when I don’t have to fear you forcing me to not speak?Report

    • Avatar Damon in reply to Jaybird says:

      And this is why one team cannot be allowed to win. And why we see that all gov’t action is force and the only true block on it’s action always boils down to defense of liberty through force of arms.Report

    • Avatar Vikram Bath in reply to Jaybird says:

      That is why civilization rarely lasts, Jay.

      See the iterated prisoner’s dilemma.Report

      • Avatar James Hanley in reply to Vikram Bath says:

        The IPD is exactly what your post made me think of.Report

      • Avatar Michael Drew in reply to Vikram Bath says:

        Do you guys have good link on that other than just Wiki? I feel like I can imagine the basic idea and how it works out, but I have to admit I haven’t heard the term or looked at anything on it before.Report

      • Avatar James Hanley in reply to Vikram Bath says:

        There’s this. I have to say I’ve never stumbled across any site that I think does a good job of explaining it in layman’s terms.

        I’d recommend you order a copy of “The Evolution of Cooperation” by Robert Axelrod. He does as clear a job of explaining it as I’ve ever seen, reports on his famous computer simulation tournament that used it, and then explains how British and German soldiers used it to avoid real fighting in WWI’s trench warfare (until the officers mucked it up and got a whole lot more of them killed for no good purpose).

        The key is that whereas in a single-shot PD the only payoffs to be considered are in the immediate game (where defecting dominates), in an iterated sequence of games the potential payoffs of future games are also to be considered. If cooperation now promotes cooperation from the other player in the future, and defection now promotes future defection from the other player, you’ll get a greater net payoff over the series if you cooperate in this game than if you defect. And the same logic applies to each subsequent game.

        As a caveat, that’s only true as long as the series is open-ended. Once a specific number of remaining games is specified, backwards induction leads to the rationality of defecting in the present game again, because the very last game becomes a single-shot game, so of course you’ll defect in it, so there’s no reason to cooperate in the previous game, as you’re not trying to promote future cooperation, so that previous game also becomes a single-shot game, and then the game prior to that one likewise, all the way back to the first game you play when the number of remaining games is specified.

        To be very nontechnical, imagine you and a friend who often go out for drinks. Say you often buy a round for each other. As long as he takes his turn buying rounds, you’re still willing to take your turn buying rounds, too. But if you begin to notice that he hasn’t bought a round in a while, you’re going to lose your willingness to buy a round. (Of course the game doesn’t capture all the values that go into human decision-making, so if your friend is moving away forever to Timbuktu, you probably won’t think, “ah, the iterated sequence of round-buying is no loner open-ended, so I won’t buy any rounds tonight.” You’re far more likely to buy extra rounds to demonstrate your affection. Fucking humans and their irrational emotions, always messing up our elegant theories.)Report

      • Thanks. That’s roughly how I figured it.

        Real-life examples of when humans will in practice tend to treat an iterated sequence of games they find themselves in as not a finite one? I guess at some point trench warfare looked very much that way… until it didn’t. Others?Report

      • Avatar James Hanley in reply to Vikram Bath says:


        Nuclear arms reduction talks.

        Informal rules in the Senate (or any other organization), like when it’s appropriate to filibuster and when not. This kind of thing went downhill when a bunch of yahoos obsessed with ideology and no respect for institutional norms came in. If you get the Axelrod book, you’ll see there’s no guarantee of continued cooperation, and if things go south you can get an iterated sequence of mutual defection that is a stable equilibrium. See also, marriages gone to hell.

        My neighbor and I loan each other tools. It’s all good as long as we each continue to reward each others’ trust.

        And so on.Report

      • Avatar Michael Drew in reply to Vikram Bath says:



        Yeah, those definitely fill in the picture more. Thanks.Report

      • Avatar Michael Drew in reply to Vikram Bath says:

        (…I’m obviously not going to order the book.)Report

      • Avatar James Hanley in reply to Vikram Bath says:

        Oh, you should. It’s relatively short, pretty clearly written, and very interesting. More academic books should follow it’s model.Report

      • Avatar Michael Drew in reply to Vikram Bath says:

        I don’t really buy too many books these days. Not for more than 5 bucks or so. It’s ot really in the budget with how much quality reading material there is that is free. Conceivably I would ask for it as a gift, but I doubt it would take the place of whatever history tome I’m fixated on at the bookstore. And my birthday’s not until August.

        If there are $3 copies on Amazon I suppose that would completely change my tune. But now I feel like I get the basic idea, so it would have to stand out as a book that’s really worth reading on a theoretical topic since there are so many of those that would surely be at least somewhat worthwhile.

        Is that what you’re saying it is? Like, in the top 5 most worthwhile books to read if you’re going to read 5 books that serve as good lay-intros to 5 theoretical (or, I guess, just academic) topics?

        It does seem like a good complement to Dennett’s way of looking at evolution, and the evolution of consciousness and free will, which is a favorite interest of mine.Report

      • …Maybe it’s in the public library, though! (Kinda doubt it, but maybe.)Report

      • Avatar James Hanley in reply to Vikram Bath says:

        It’s probably in your local university library. Just skim it for a couple hours. Do read the chapter on WW1.Report

      • I suppose I could make a special trip for it, which that would be for me.

        But then, I wouldn’t do that for the 25th most important book to read in the category I describe above. So… I probably won’t unless I get a sense of how important you’re saying it that I read this relative to other books I might make the same trip for. (I suppose I could make it for a few of them, but pretty soon that becomes half a day rather than just a trip.)

        However! All of the first chapter is online! So I’ll read that and see what I think from there.Report

      • Here’s a paper that contextualizes Axelrod’s work even more generally. Pretty interesting.


      • Avatar Roger in reply to Vikram Bath says:

        “That is why civilization rarely lasts,
        See the iterated prisoner’s dilemma.”

        Odd comment, considering that once civilization started ten thousand or so years ago, that it has never stopped. Indeed, it has continued to become more cooperative over time. The networks of reciprocity and cooperation continue to grow.

        I guess what you meant was that individual civilizations rarely last. Even this is only kinda correct though.

        People will defect in prisoners dilemmas if allowed to, to the long term detriment of all. The history of civilization is to a great extent the history of solving the biological and sociological “problem of cooperation.” Foragers solved it reasonably well for hundreds of thousands of years, with the advent of agriculture, the defectors gained the upper hand. Post enlightenment, we found novel solutions, includiing the term of the day “free speech.”Report

      • Avatar James Hanley in reply to Vikram Bath says:


        I didn’t suggest it was the most important, just that it’s particularly readable, and was noteworthy for making a lot more people aware of the concepts. A lot of the “more important” books are also less accessible. But if the paper satisfactorily explains it, you’re good. (I can’t open it on my IPad, so I can’t view it myself right now.)Report

      • Avatar James Hanley in reply to Vikram Bath says:


        There was a hell of a lot of violence in a hell of a lot of those HG cultures. To say hunter-gatherers solved the PD is rather an overstatement.Report

      • I guess what you meant was that individual civilizations rarely last. Even this is only kinda correct though.

        Yes, that was what I meant. I should have been clearer about that.

        I have to admit I’m a bit murky on the details not truly being a student of history, but my general impression has been that individual civilizations don’t last indefinitely. The Babylonians, Egyptians, Greeks, and Romans created civilizations that presumably required peaceful agreements between those who might otherwise just kill each other, but eventually something happens.

        Of course, I’d like to think theater particular iteration is the exception and the world will become less and less violent forever into the future, but I’m not optimistic in that regard. As Jay suggests, eventually someone will see an advantage they will want to press, and it will break everything.Report

      • Avatar Michael Drew in reply to Vikram Bath says:

        The paper isn’t quite on the substantive point of the book; it’s about the research potential of adaptive agent(s) modeling versus that of rational choice actor modeling.Report

      • Avatar Michael Drew in reply to Vikram Bath says:

        …And I didn’t ask if it was the most important, I asked if it might be in the top five most important in the category of good books to read as an intro to an academic topic for the lay person – i.e. taking into account that accessibility factor. Looking to get a sense of what kind of priority I should put on rectifying not having read this book.Report

      • Chinese civilization seems to have lasted an awfully long time, since ca. 200 b.c.e. Of course, it hasn’t been without periods of extreme violence (the dynastic style, repeated in a secular way from ca. 1930 to ca. 1979) and disunity (e.g., the Three Kingdoms period, the late Tang/pre-Song era).

        I suppose one could also argue that the claim it is/has been one “civilization” is overwrought.Report

      • Avatar Roger in reply to Vikram Bath says:


        There has been violence in primates for millions of years, and there is violence today still. This doesn’t negate that both evolution and human culture have come up with multiple solutions to “the problem of cooperation.” Just that all solutions are incomplete or less than perfect.

        Your argument is like saying ants don’t cooperate because ants still kill each other. They do cooperate, extensively, indeed they even cooperate IN KILLING EACH OTHER.

        In biology, the imperfect solutions include kin selection as illustrated by Hamilton/Price’s formula.

        In primitive humans the solution sets include assortative matching, reciprocity, reputation, shared conventions and norms, violent suppression of bullies, and communications. In current societies it is expanded to include modern institutions such as third party enforcement mechanisms, property rights, the concept of free speech, online user ratings, and so on.

        Here is a good link on the current state of the issue from a game theory perspective:


        For an anthropological rather than game theory angle, Google for open access versions of this paper. This one is fantastic.


        Restated: foragers have been solving the problem of cooperation (imperfectly) within nomadic bands for tens or hundreds of thousands of years.

        I also highly recommend reading the two books on the issue by Christopher Boehm. I guarantee you 100% that you will love them and get great ideas for your classes if you read his two books, especially “Hierarchy”Report

      • Avatar Roger in reply to Vikram Bath says:


        Yeah, I think I got the spirit of the comment and I broadly agree in lots of ways. I just think it leads to several other interesting “by the ways”… Or “that is true buts”

        By the way… As Pinker and James Payne have documented, violence is decreasing over time among humans by several orders of magnitude. We are not just creating larger, more cooperative networks of cooperation, but we do so now with less murder, war, rape, riots, torture, capital punishment, violent leadership transitions and enslavement than ever before.

        As another aside, Individual dynasties do come and go, but Egypt and China are two clear example of extremely long lived civilizations with multiple leadership changes. I would say that many of the problems with these two was actually related to their stability.Report

      • Avatar Stillwater in reply to Vikram Bath says:


        Restated: foragers have been solving the problem of cooperation (imperfectly) within nomadic bands for tens or hundreds of thousands of years.

        That’s descriptively correct, but what does it matter to the world we live in today? The problem isn’t identifying the solutions available (“people just need to cooperate more”) it’s realizing those solutions, in practice, in complex world. Which is where I think James’ point is relevant: just as folks have been acting cooperatively for thousands of years, so have they acted non-cooperatively and in fact violently so. Merely saying (repeating) that more cooperation and less violence is that antidote to less cooperation and more violence doesn’t reveal anything of substance, it seems to me. Maybe I’m missing your point, tho.Report

      • Avatar Roger in reply to Vikram Bath says:


        Sorry for being unclear or confusing.

        My original point to Vikram is that people have been solving the prisoners dilemma aka the problem of cooperation, for ages, and continue to make gains on the issue. Civilization has not collapsed, indeed it has flourished .

        I would be happy to try to explain how they have been doing so, as it is my current area of personal research, however it may take us WAY off topic. I am game if you are though.

        I strongly recommend googling the second link above for free access copies of some of the interesting issues, current and historic. It’s an interesting discussion. I think they even mention James’ mentor — professor Ostrom.

        The focus of the article is on the value of associative matching in solving the problem of cooperation (a topic which James has also written on indirectly under the heading Tiebout competitions.)

        In brief, one way to solve the problem of defection/cheating is to choose who you do and don’t cooperate with. This creates a competition for cooperators. It creates a virtuous cycle. In game theory it is the equivalent of having the freedom to walk away from cheaters and match up with fellow cooperators. This creates the winning “selfish” strategy of no longer being a defector. To play the game, you need to be as cooperative as the competing alternatives.

        Great article, and it is better than a lot of the overly contrived game theory in that it matches humans as actually observed.Report

      • Avatar Stillwater in reply to Vikram Bath says:

        Civilization has not collapsed, indeed it has flourished .

        Lots of particular civilizations would probably beg to differ on that. WWII seems like a useful counterexample, but the list is prospectively infinite. I’m still uncertain what the issue is here. Are you making a descriptive point? A normative one? A practical one? I know we go round and round about this very topic, and I’m not at all interested in going rounds about it again. I’ll just say that cooperation is a fact of human existence. As is non-cooperation and violence. Cooperation as a normative ideal is better than the use of violence to achieve desired ends (Vic’s thesis in this post, more or less). On a practical, I still don’t know what you’re advocating other than policies that promote your conception of cooperation, one which I think lots of people disagree with for practical reasons. But that’s about all I’ll say on it, and leave the last word to you. No disrespect intended! We’ve just been down this road plenty of times already, seems to me.Report

      • Avatar Roger in reply to Vikram Bath says:

        I already made the point on individual civilizations and the civilization/civilizations distinction above, so I am not sure why you are throwing that out as adding anything new to the discussion.

        My point was that civilization has not collapsed and indeed has flourished with the latter term defined as increasingly large scale networks of cooperation. I suppose that is a descriptive one. An apolitical one, imo. It applies equally well to the USSR as Australia, or even the world as a whole.

        I have no idea which “conception of cooperation” you disagree with. I am assuming assortative matching? But that seems like an odd thing to disagree with. It certainly isn’t a political thing, indeed most of the literature I was highlighting is on non political foragers.

        You seem to be saying the equivalent of “Roger said it so I must disagree even though I am not sure what his point is and really don’t care anyways.” Fair enough.Report

      • Avatar Jaybird in reply to Vikram Bath says:

        Now I’m thinking half-baked thoughts about the circumstances under which Socialism works and the circumstances under which it fails and the degree to which defection is responsible.

        Or Capitalism, for that matter.Report

      • Avatar Stillwater in reply to Vikram Bath says:

        Fair enough, Roger.Report

      • Avatar Stillwater in reply to Vikram Bath says:

        Jaybird, Could you elaborate on that last comment?Report

    • Avatar Jaybird in reply to Chris says:

      If he shot a dude, arrest him for shooting a dude. If he’s rapping about shooting a dude, there’s no difference between that and writing a story, making a movie, or writing a script for a television drama in which a character named “Tiny Doo” shoots a dude.

      Pretending that he’s benefitting from criminal activity by rapping about performing criminal acts is the Hays Code all over again.Report

    • Avatar Jaybird in reply to Chris says:

      I hate to be the fifty billionth person to bring up Johnny Cash but imagine a prosecutor arresting him for singing about shooting a man in Reno?Report

      • Avatar Chris in reply to Jaybird says:

        Was precisely the example I thought of.

        “But Johnny Cash wasn’t gang affiliated.”

        That will be the inevitable pro-cop response.

        (Having just watched a video of cops shooting another man with his hands up, complying with police demands, I am not very pro-cop right now).Report

      • Avatar Will H. in reply to Jaybird says:

        I believe that was in the days before Scotch tape.
        Now, with the wonders of modern technology, fingerprints can be miraculously discovered, even years later, in order to solve multiple unsolved crimes.Report

      • Avatar Glyph in reply to Jaybird says:

        “The Police Department is like a crew, it does whatever it wants to do”Report

      • Avatar James Hanley in reply to Jaybird says:


        Is this a new incident? Do you have a link?Report

      • Avatar Chris in reply to Jaybird says:

        James, the incident occurred on December 30th, but the dash cam video was just released. I warn you, this is a man being shot to death. Know that before you watch:


      • Avatar Stillwater in reply to Jaybird says:

        From the link:

        On Tuesday, the Bridgeton Police Department expressed its disappointment over the video’s release “out of respect for the family.”

        I can’t help but read that Orwellianly. “Respect for the family”. Which family? It’s like something Michael Corleone would say.Report

      • Avatar Chris in reply to Jaybird says:

        I am still too furious to even think about that statement. It’s January 23. Why has that cop not been arrested? He just shot an unarmed man with his hands in the air, complying with demands. That is murder!Report

      • Avatar James Hanley in reply to Jaybird says:

        I hate to say this, but the guy was not complying with commands. The policeman told him not to move, and the guy got out of the car. And that’s why nothing is going to happen to this policeman, because it will be entirely too easy for a grand or trial jury to read this as the deceased “threateningly moving toward” the policeman.

        I’d love to see that cop convicted, but with that video evidence, it’s never going to happen.Report

      • Avatar Stillwater in reply to Jaybird says:

        Why has that cop not been arrested?

        I don’t know what “the other side of the story” is gonna reveal to exonerate this guy.


        There is no evidence which would lead to a charge against a cop in a scenario like this. In my opinion, anyway. Which is what everyone’s so pissed off about.Report

      • Avatar Stillwater in reply to Jaybird says:

        Just like Eric Garner. “He resisted arrest, so we had to kill him.”Report

      • Avatar James Hanley in reply to Jaybird says:


        Well, my point is, we all know that even following orders is no guarantee against getting shot (especially for minorities). So when you don’t follow orders, and move toward a cop… Fuck, then you signed your own death warrant and gave the cop a free pass.

        Don’t. Step. Toward. A. Cop. EVER!Report

      • Avatar Jaybird in reply to Jaybird says:

        Also, never take a picture that you wouldn’t want to see posted online and don’t insult the prophet.

        Which, on one level, is very very good advice.

        But, on another, one can’t help but think that this is not what we signed up for.Report

      • Avatar Glyph in reply to Jaybird says:

        @chris – at the risk of sounding like a cop apologist (I’m not), a few things, based on the video/accompanying articles.

        1.) Braheme Days (the officer who initiates the contact, freaks out, and appears to shoot first, before the cop on the drivers’ side) appears to be black (from the video). I know there’s some research that shows that black people are nearly as susceptible to overreacting to ‘Scary Black Man Syndrome’ as white people are, so that completely doesn’t rule out racial aspects, but it also isn’t quite the same as some of the other prominent incidents we’ve seen, with white officers overreacting to black victims.

        2.) Days recognizes Reid (calls him by first name), apparently because he had arrested him not too long before, on drug and other charges.

        3.) Since he recognizes him/arrested him before, Days almost *certainly* knows that Reid previously spent 13 years in prison for shooting at a State Trooper.

        4.) Since it was a State Trooper that Reid was convicted of shooting at, I’m gonna take a wild guess that the shooting attempt might have been in a vehicular context.

        Is there any known phenomenon where someone gets so hyped up on fear and adrenaline that they literally start hallucinating and filling in “blanks”? It almost seems like this cop knew the victim’s history (that he had the capability to be a potential shooter, over a traffic stop), and then once he saw the gun in the glove box, he just started “seeing” something that wasn’t there (though of course, the dashcam rear angle and dark lighting are not conducive at all to us seeing what Days “saw”). Like, he literally sounds like someone having a bad trip. The other cop doesn’t appear to shoot until shots get fired, probably nearly reflexively.Report

      • Avatar Glyph in reply to Jaybird says:

        Also, even if there IS such a phenomenon, it wouldn’t necessarily excuse the situation. I presume if there is, that’s the sort of thing that psychological screening and training for cops is supposed to root out. But something seems totally off, for sure, about the whole thing. Maybe it’s basically some sort of reprisal execution. Wonder what other history is there.Report

      • Avatar Glyph in reply to Jaybird says:

        Also, in my first comment, please soften “know there’s some research” to “believe there’s some evidence”, since now I am questioning when/where I read that.Report

      • Avatar Chris in reply to Jaybird says:

        I have seen cops react like that before, on video and in person. There’s a well-known case here in Austin of cops shooting an unarmed man in the back, while he sat in a car, because one of the cops thought he saw a gun and panicked (and is, I believe, still on the force).

        But what I’ve seen in person is cops go from 0 to Shitting Their Pants in about 2 seconds upon either seeing a gun or realizing they’re dealing with someone who has a history of being armed. The screaming and threats become constant, and graphic, very quickly.

        One of my old neighbors was a huge guy who’d spent most of his adult life in prison for drug stuff, and who was stopped by the cops constantly (I’d guess somewhere in the neighborhood of 6’4″, at least 350, Hispanic, all of which mattered I suspect). I saw cops lose their ever-lovin’ mind stopping him on more than one occasion. He was never armed (he was on probation the whole time I knew him), but they’d go from cautious (’cause he’s huge) to “I’m going to blow your brain out of the back of your head if you even look at me funny” really fast when they ran his name or a cop who knew him showed up. Even while he was lying on the ground face first with his hands behind him.

        Now, I have seen people who are very quick to horrible violence, and I imagine cops have seen that a lot more than I, so I understand being afraid, but there’s little more dangerous than a panicky person with a gun and the authority to use it.Report

      • Avatar Hoosegow Flask in reply to Jaybird says:

        The bystanders in that video were clearly upset. As awareness and anger of these types of shootings increase, it’s irresponsible for politicians and police to (at best) just say “the shootings were legally justified and that’s that” and not directly address and attempt to alleviate the concerns of their respective communities, even if they believe the cops were completely morally and legally correct.

        Something eventually has to give. I fear that eventually one of these police shootings will spark something larger and much uglier.Report

      • Avatar Notme in reply to Jaybird says:


        When were you ever pro cop? You were the first to post to tell us how ashamed and disgusted you were at the Ferguson shooting. You knew all the facts and didnt any others. Now even the DOJ has cleared the officer.Report

      • Avatar James Hanley in reply to Jaybird says:


        Why is truthfulness so difficult for you. “Not being able to prove” and “cleared” are not exactly the same thing. And the DOJ has not yet said which of these two things it is.Report

      • Avatar Notme in reply to Jaybird says:


        The Huffpo used the same words. Do they have the same issue or do you just have a problem with me and read the worst into anything i write?


      • Avatar Mark Thompson in reply to Jaybird says:

        @notme Seeing as a big chunk of the entire fishing point of this whole issue has, from the very fishing beginning, been that the system is rigged to make it damn near impossible to hold cops responsible for their actions, and far too easy for them to claim justification, what, exactly, does the lack of charges/indictment prove?

        Point me to the part of the grand jury report where it found that Brown’s hands weren’t up. How about the part where it found that Brown was, in fact, charging Wilson when Wilson fired the fatal shots, rather than surrendering? Or maybe the part where the grand jury found that Brown initiated the “struggle” at the door to the police car?

        I’ve asked you all of this before when you’ve insisted that the lack of an indictment means that everyone who thinks Wilson acted wrongly shows that we were wrong about the facts, and you chose to ignore me. I suspect that’s because THESE THINGS DON’T EXIST.

        The lack of an indictment proves no facts whatsoever other than that there was no indictment. It surely does nothing to address the fact that one of the central complaints, from day one, has been that cops who kill almost never have to face charges, discipline, or serious scrutiny from the judicial system.Report

      • Avatar Notme in reply to Jaybird says:


        Maybe just maybe the lack of charges at both the local and federal level mean the officer acted within the law. Allthough you could continue to argue that the lack of charges clearly indicates a conspiracy at both levels. Somehow i doubt that Holder and his DOJ hacks are going to miss a chance to score political points.Report

      • Avatar Stillwater in reply to Jaybird says:

        Maybe just maybe the lack of charges at both the local and federal level mean the officer acted within the law.

        In a weird way that actually proves Mark’s point: if “acting within the law” includes shooting unarmed people in the act of surrendering or choking them to death for resisting arrest on a misdemeanor by walking away or shooting a twelve year old for playing with a toy gun, then cops can kill anyone consistently with the law. Which is a problem, no?Report

      • Avatar Notme in reply to Jaybird says:


        That’s odd as i wasnt aware that anyone ever proved that Brown was surrendering when he was shot.Report

      • Avatar Don Zeko in reply to Jaybird says:

        @notme A lack of indictment, like an acquittal, means lack of evidence of violation of the law. That’s an entirely different can of worms than proof of innocence.Report

      • Avatar Mark Thompson in reply to Jaybird says:

        @notme @stillwater That doesn’t just prove my point in a weird way. To a large extent, it’s the entire fishing point.

        What’s more, and you, @notme , of all people should know this – what can be proven in court and what actually happened are two very different things. I wouldn’t have brought federal civil rights charges, either – proving the additional element of racial animus would have been damned near impossible.

        I do think that the prosecutor in the state case had no intention of actually getting an indictment, and, like many people, was skeptical of his motivations from the very beginning. At minimum, it appears that he knowingly introduced indisputably false testimony of at least one witness in Wilson’s favor to go in front of the grand jury.

        And yet… even if the prosecutor had acted in good faith and gotten an indictment, I was always very clear that it was unlikely that Wilson would get convicted. Again, I was clear about this from Day One.

        Which brings us back to the point – that the entire fishing system is set up in a way that allows police officers to act with impunity. That Wilson may have acted within the law is a huge fishing part of the entire complaint!Report

      • Avatar Chris in reply to Jaybird says:

        Notme, the man in the video in this thread was surrendering when he was shot.

        And he was complying, but the cop continued to threaten him, leading him to the desperate act of exiting the car… with his hands up.Report

      • Avatar James Hanley in reply to Jaybird says:


        Because the Huffpo phrased it a particular way, I should accept it as accurate?

        Because the average journalist has such a fine grasp of the law?

        (Didn’t you tell us you were an attorney? Please correct me if I’m wrong.)Report

      • Avatar Mark Thompson in reply to Jaybird says:

        That’s odd as i wasnt aware that anyone ever proved that Brown was surrendering when he was shot.

        Way to move the goalposts there. Especially seeing as the notion that he was doing something other than surrendering – whether or not Wilson perceived it this way in the moment – requires a belief that Brown would have – after being shot in the car and then running away from Wilson (a fact that literally no one disputes) – decided that his best chance of survival was to stop, turn around, and run at the very person who had just already shot him, and was either still shooting at him or, at minimum, was pointing his gun at him.

        To make a claim that someone would act in such an extraordinary fashion – in effect, that Brown knowingly committed suicide-by-cop – requires some serious evidence and proof that’s not existent here.

        And yet, EVEN STILL, the fact that we don’t have a formal factfinding as to exactly what happened simply reiterates the point that the system is fished beyond all usefulness. Had there been an actual trial, we might have gotten that factfinding, or at least something a lot closer to it than what we got. But there wasn’t an actual trial. And there wasn’t an actual trial because the system is set up to make it highly unlikely that a police officer will ever have to face trial when he shoots or injures someone. Which, again, is pretty much the entire fishing point.Report

      • Avatar James Hanley in reply to Jaybird says:

        i wasnt aware that anyone ever proved that Brown was surrendering when he was shot.

        This is really bizarre, as it implies that the shooting was justified if Brown was doing anything other than surrendering, rather than the proper standard that the shooting was justified only if the officer reasonably feared for his safety.

        There’s a vast gulf between not surrendering and posing a real threat, filled with a variety of possible actions, all of which, if we accept Notme’s implied standard, justify the police shooting you.Report

      • Avatar Stillwater in reply to Jaybird says:


        I meant that it was weird notme (of all people) was effectively making your point and not that the point notme was making was weird. It isn’t weird. It’s notweird.Report

      • Avatar Stillwater in reply to Jaybird says:

        To James, point, I wonder if surrendering in an aggressive manner justifies getting shot. Like Wilson said about Brown, the guy had a mean look about him! But then again, surrendering too passively isn’t a good idea either. Maybe if Garner had said “uncle!” instead of “I can’t breathe” the cops wouldn’t’ve had to resort to killing him. Or the dude who was fully surrendered but still got shot for for reaching in his car to get his wallet when the cop asked for his driver’s license.

        Damn, this shit’s hard to figure out, no?Report

      • Avatar Notme in reply to Jaybird says:


        Im not moving the goal posts, I’m just calling BS on what stillwater said. It was not proved that Brown was shot while surrendering. If you can prove it please do so.Report

      • Avatar Kazzy in reply to Jaybird says:


        Stillwater wasn’t necessarily referring to Brown. He could have been referring to the video Chris linked to. Because, ya know, lots of unarmed folks are getting shot by the cops these days.Report

      • Avatar Kazzy in reply to Jaybird says:

        Given what @chris and others have shared here about psychology in threatening situations in the like, I wonder if we seriously need to rethink our entire policing system. It seems like a high degree of training and sophisticated psychological evaluation need be the norm for any officer being authorized to carry a firearm. This would be an elite squad… perhaps one or two guys in a small town and several large units in major cities. Beat cops and the like would have non-lethal weapons.

        I propose this because what stands out about all these situations is a lack of threat until the arrival of the cops. These situations were escalated by the presence of the police. And (save for Garner), escalation plus firearms plus being human in an intense situation seems like a bad combination. Obviously, cops deescalate situations all the time without the use of their firearm. Kudos to them.

        How often does a cop like Wilson need his gun? I mean, *really* *need* it? Possibly never, right? So what good comes from him having it? Brown was guilty of, what, walking in the street? So he approaches him, civilly, to discuss the matter. The minute Brown poses a threat, Wilson can retrieve his non-lethal weapon or, ideally, retreat to his car and call in backup. If Brown continues walking down the street, he trails him.

        I mean, seriously, someone died for walking in the street. That is essentially what this boils down to. Yes, I know other things happen once the engagement began. But why was engagement necessary? And would Wilson have engaged as he did if he didn’t know he had the security of his firearm at his disposal?

        Take the cops’ guns away unless and until INDIVIDUALLY they demonstrate they can be trusted with the most ultimate of powers: the power to kill.Report

      • Avatar Stillwater in reply to Jaybird says:


        Yeah, you got it right up there. notme’s insistence that my example was a reference to Brown is question begging, intentionally misses the entire point of Mark’s comment, and is in fcat incorrect. As Chris pointed out right away, the example was a reference to the events in Chris’ linky.

        Mark effectively dismantled notme’s position on this – and has over a number of threads, actually. What’s weird is that notme’s view about what constitutes legally justified cop behavior is descriptively equivalent to the view Mark, Chris and I hold about these events. The only difference is that notme continues to insist that this wide definition is normatively correct. Even tho it entails that cops can effectively kill others with impunity. As yet, there has been no argument to defend the wide definition other than to simply assert that it exists.Report

      • Avatar Stillwater in reply to Jaybird says:

        How often does a cop like Wilson need his gun? I mean, *really* *need* it? Possibly never, right?

        That’s a tough question, and I say that as someone who clearly isn’t either deeply involved in the criminal justice system or someone who’s deeply thought about it. Seems to me that one sentence answers aren’t gonna cut any cheese in this debate.

        One thing I’d say is that if citizens – who justify arming up as a response to cops being armed up – continue to arm up, cops are gonna require arms outa some functional principle of equivalence merely for the purposes of self-protection. That leaves aside more complex arguments about the instrumental merits (or not, of course) of doing so wrt creating or establishing a more peaceful society. On the other hand, of course, if cops continue to arm up, lots of citizens will arm up as well. Arms race logic applies here, no?

        On a more cultural level, tho, I think cops carrying guns is part of the American Ethos (yes, I’m going there!!). Our society embraces the use of force to achieve ends as well as a pathological level of punition (thanks Vik for that awesome word) with a tremendous degree of either passive acceptance (on one end) or celebration (on the other) that until those cultural norms change, cops carrying guns will maintain a central place in how we conceive our criminal justice institutions.

        But like I said, I don’t claim any deep knowledge or understanding of the cultural dynamics in play. We incarcerate and kill people with a sorta reckless enthusiasm, tho, as a culture. That’s disturbing.Report

      • Avatar Roger in reply to Jaybird says:

        “…lots of unarmed folks are getting shot by the cops these days.”

        Just a question, and no need to respond with any “one is too many” cracks, but what are the stats on this? Have unarmed shootings been trending up or down, and how much of this is an awareness increase vs incidence increase?Report

      • Avatar Will H. in reply to Jaybird says:

        I don’t have statistics, but I have a related practical experience.
        I was in a criminal justice class taught by a police detective. This past semester, I had classes taught by a police commissioner.
        It is being taught to candidates for the police academy that, if ever one of them loses a fight, they area dead. (Direct, verbatim quote: “If you ever lose a fight, you’re dead.”)

        I think two things are important to remember in situations like this: 1) the role of the police is continually evolving (personally, I’m all for spinning off the “first responders” role to some other governmental entity, due to the fact that first responders do not require the extent of firepower that police carry about), and 2) the courts have effectively taken it upon themselves to make “resisting arrest” a capital offense, without regard for the intent of the legislature.

        And a third thing is that there is no more clear exemplar of the rote, “Bad jurisprudence makes for bad law,” than in section 1983 (civil rights) litigation. Much of the worst of it came from the courts setting out to ensure that NYC would never be held liable following the Knowles Report (re: Serpico).
        In fact, it wasn’t until March 28, 2013 (I believe it was; working from memory here) that it became unlawful for a federal law enforcement officer to commit forcible rape on the clock. (The case is Millbrook v. United States, a unanimous opinion written by J. Thomas; a textbook example of the ‘textualist’ approach to statutory interpretation.) Before then, prevailing law (from the Third Circuit) held that a federal law enforcement officer had to be engaged in one of three specified activities for the waiver of sovereign immunity under the FTCA to apply.

        Another important point to remember is that the problem isn’t everywhere. It’s out there, sure; but not everywhere.
        The majority of wrong-doing by police officers is a matter of policy rather than rogue cops.
        Sleeping on the job is still the most common form of unethical conduct by police officers.Report

      • Avatar Will H. in reply to Jaybird says:

        I’m a student, not an attorney.
        If you’ve read through attorney disciplinary literature, you would see that an attorney can be disciplined for “disparaging a judicial officer.” And yes, I’ve seen cases of that.
        I remember seeing a recent case from Virginia where an attorney was disciplined for some court documents when he referred to the order under review as ‘racist.’

        As a non-attorney, I am not bound by the rules of ethics which govern attorneys.
        These guys around here that are attorneys, are.Report

      • Avatar James Hanley in reply to Jaybird says:


        It’s hard to say. If I understand correctly, it’s only recently that statistics have started being kept on officer use of force. The 50 states all went their various ways on recording or not recording such things, and the federal statute requiring record-keeping isn’t very old.

        Note: Lawyers or other knowledgeable folks, please correct me if I’m wrong.Report

      • Avatar Roger in reply to Jaybird says:

        Thanks all.

        The only stats I have seen on the issue are the collection of stats and trends between police violence, crimes, arrests and such by race as gathered by slatestarcodex :


        There are at least two (closely related) themes that exploded last year. The police are abusing power theme and the police are racist theme. I am surprised none of us is familiar with actual data or that nobody has been able to gather it on the former theme.Report

      • Avatar Notme in reply to Jaybird says:


        You keep using the word impunity when speaking of police actions but i dont see how it applies when someones actions were found to be lawful in the first place. Being a cop didnt help the BART officer when he killed the guy at the Fruitville station.Report

    • Avatar Stillwater in reply to Chris says:

      I was reading along and thought “well, they have other evidence against this guy and they know it’s not sufficient to pin anything on him, so they’re going Al Capone on his ass”, and then I read “they have more evidence against him”. Turns out it isn’t evidence directly related to the killings, just some Facebook posts.


      If they’re trying to AL Capone him, they’re doing a pretty bad job of it on the political level. They’re also exposing a really bad law as being a really bad law.Report

    • Avatar Jaybird in reply to Chris says:

      Now if, for example, there was reason to believe that he committed a particular crime and that he was rapping about having committed this particular crime (like, for example, there was reason to believe that he shot a guy in the head, then in the lower back, then stole his wallet before throwing it in a nearby sewer and his rap included details such as shooting a guy in the head, in the ass, then taking the cash out of his wallet before ditching it) then I could see using the rap song as evidence and then, once convicted, using this law to say that he should not receive royalties from this song (or, hell, from the album that the song is on) but THAT ISN’T WHAT IS HAPPENING HERE.Report

    • Avatar Kazzy in reply to Chris says:

      [Ugh. This joke totally missed the mark and likely accomplished the exactly the opposite of what I intended. I’m just deleting it. My apologies. -Kazzy]Report

    • Avatar Tod Kelly in reply to Chris says:

      Wow. How have I not heard about this until now?Report

  2. Avatar Burt Likko says:

    As good a place as any for me to follow up on my previous query. Why free speech is important matters because that informs the way we regulate things. Some kind of regulation of speech is inevitably going to be necessary, if only time, place, and manner regulations. And by “speech,” I mean “communications,” of course.

    Why do we need to regulate speech at all? Well, you don’t want your next-door neighbor a) blasting music you dislike at all hours of the day and night, b) spreading vicious false rumors about you to professional colleagues, c) agitating people to engage in violent acts against you, or d) telling geopolitical adversaries sensitive information about your country’s military capabilities. All of those sorts of things are, at some level, communication. So we a) have nuisance ordinances so people can get some damn sleep at night, b) permit civil actions to recover damages for defamation, c) criminalize conspiracy to commit violent crimes and send in police to prevent people from causing riots, and d) criminalize for engaging in espionage and divulging state secrets. These are all, to my knowledge, non-controversial sorts of laws enjoying very broad support and which most people do not even think of as impacting their freedom of speech. Without these regulations, it would be very difficult to have an organized polity, to co-exist in a civilization of ordered liberty. But of course, each one of them is a restriction on someone saying whatever it is that they please in the way that they would choose to in the absence of the regulation.

    So why is free speech important? What kinds of rules do we contemplate arising from that examination of value?

    If we value free speech as a bulwark of truth, scientific inquiry, or social advancement, then we should have little difficulty regulating speech that is false. Our fear in that case should be confusing orthodoxy for truth, which is something ridiculously easy for a rulemaker to do. The government, and the population as a whole, will respond far too slowly to changes in economic or geopolitical conditions, advances in knowledge, religious or moral developments, and so on. Eventually that which is known today to be true becomes encased in an intellectual casing equivalent to crystallized amber.

    If we value free speech as a tool of democratic self-government, then speech which does not directly related to topics of governmental affairs would be subject to graduatingly higher degrees of regulation and control as the subject matter of the speech veers further and further away from governmental activities. Soon enough, social and cultural orthodoxy become ossified and the resulting politics becomes so hidebound to cultural orthodoxy that we’ll find ourselves in the same place as a truth-based system: in order to self-govern, the government must take control of what is said.

    If we value speech as an inherent good, we probably cannot tolerate any restriction of speech at all, except to the extent that we are compelled to balance the inherent good of speech against some other sort of inherent good, goods which might include things like liberty and safety, and then we must find the balance that Pareto-optimizes the amount of both available inherent social goods. I posit that from a legislative standpoint, this is functionally impossible because the philosophical work necessary to achieve this goal necessarily results in rules that can only be expressed at too a high degree of abstraction as to create positive law.

    If we value free speech as a necessary component of what it is to be free, and freedom in turn as a necessary component of what it is to be happy, then the ultimate end is happiness and speech which makes people unhappy is subject to regulation. Travel down this intellectual road gets very silly very quickly, in my opinion. Same result if we substitute things like “self-actualization” or some other proxy for “happiness” here. If, rather, we eschew happiness as the telos of freedom, and say freedom is the inherent good for which we strive, we’re back to the question of what life would be like without at least some minimal regulation of speech and find ourselves in the self-defeating realm of demanding prohibitively difficult governmental justifications for even the most reasonable of time, place, and manner restrictions on any sort of communication.

    Free speech as a less bad alternative to other sorts of social expenditures may well result in official tolerance of speech but does not elicit a love of free speech in either the populace or the government. It becomes merely an economic value. As some speech is very inflammatory and unpopular, we may count on an ever-expanding sphere of speech which political figures determine is worth an expenditure of resources to control. Again, it seems to me that the destination of this road is a stiflingly orthodox society.

    It seems to me that only when we value free speech as a necessary aspect of a civilization, a community governed by laws, that we can come up with coherent laws concerning regulation of speech at all. Free speech becomes both a zone of legal privilege and at the same time, a norm or a social ideal. Speech becomes the principal means by which we mediate and resolve our inevitable disputes with one another. Those disputes may be political, social, romantic, religious, economic — but whatever those disputes might be, we solve them by talking about them, not with violence. To me, that is, definitionally, civilization itself. oto have it, we must all buy in to the idea of at least some degree of tolerance for one another’s speech, even if we find the speech offensive, and resist the impulse to urge the government to intrude against it beyond what is minimally necessary to maintain our shared society — or else one or both of us will find ourselves unable to mediate our disputes with each other.

    The danger I see here is confusion in the minds of the public about what tolerance of free speech means — a confusion between criticism of speech and suppression of speech. You see this notion pop up from time to time when people get called out on things they really ought to be embarrassed about saying: by criticizing what I’ve said, you’re restricting my freedom of speech. (BSDI, FWIW.) This has the advantage of being the least pernicious danger, in my mind, because it’s the easiest logical error to point out and the error gets made typically below the level of creating or enforcing regulations.

    And this is seems very close to the idea of “free speech as truce” that @vikram-bath describes in the OP. It also very substantially encases the idea of speech as a necessary medium to determine truth, as as a means of maximizing freedom and through freedom happiness. Free speech is the way we mediate differences between ourselves and still live together as neighbors and friends.

    I said to my neighbor a few weeks ago, “Oh, no! We’ve found out that there’s something political you and I disagree on! Does this mean we have to be enemies?” “Yeah, right,” he said, and handed me another beer. That’s an illustration of why we have free speech both as a part of our fundamental law and as a social norm — so that neighbors can disagree about (for instance) politics and still live peacefully together, maybe even still be friends.Report

    • Avatar Michael Drew in reply to Burt Likko says:

      Until recently I thought I was very clear on the difference between criticism and suppression both as categories with abstract definitions, and in practice, trying to distinguish examples that could be one or the other. Also I thought I knew whether suppression or expression of the desire to suppress was the one we really wanted to draw an important line in front of. I’m just much less clear about all of that now.Report

      • It gets foggier when you treat free speech as a cultural aspiration at the same time that it’s a legal privilege. Legally, you criticizing my speech is (typically) a matter of indifference for the government; absent some other information about the exchange, the state will sanction neither my original speech nor your counter-speech criticizing me. But culturally, if I feel humiliated as a result of your criticism, that might discourage me from speaking up again, and thus it could silence my voice in the future.Report

    • Avatar Roger in reply to Burt Likko says:

      I agree, Burt, especially with your grounding that what we are fundamentally talking about here is “communication” and limits and controls of communication and that the way out of the dilemma is to view it as a truce.

      My initial response to Murali focused on his argument that the more speech there is the more mistakes are possible, therefore limits on speech reduces the number of what he called “lies”.

      Murali’s argument is roughly the equivalent of saying that the more hypotheses we have the more mistakes or bad hypotheses will be generated, therefore to limit bad ideas we should limit the generation of hypotheses or the number of scientists.

      The key isn’t the volume of communication (or hypotheses) it is on who and how we decide what is and what is not allowable. These rules need to be fair and impartial, especially regarding communications aimed at the party chosen as the enforcer. Furthermore, nobody else gets to promote themselves to the role of enforcer by resorting to violence over speech.

      I wouldn’t buy a tee shirt depicting the defilement of a religious figure. But I would fully support the convention that people should have the freedom to make, sell and buy such items without either the state or armed vigilantes trying to stop them.Report

  3. Avatar zic says:

    I wonder if anyone read today’s editorial in the NYT on limiting free speech of a terrorist on-line magazine, Inspire?


    It all seems so reasonable. Terrorists. Frightening.

    But I still go back to the the simple fact that most of our delicate, precious stuff hands out clearly to be identified without any threat from terrorists whatsoever; and blocking this adds justification to calls to block representations of prophets or criticisms of politicians or. . . whatever.Report

    • Avatar Roger in reply to zic says:

      I’m not following you, Zic. There may be a typo. Could you restate your point?Report

      • Avatar zic in reply to Roger says:

        Did you read the editorial, @roger ? It’s about banning speech of people who threaten Americans and western culture; specifically about banning access to this on-line magazine, which supplies details on how to build pipe bombs and suggests targets for terrorism. Banning this is okay, this kind of free speech need not be tolerated.

        And my response is show me how we are less free because of this free speech; because I see the opposite — we’re less free in response to the threats of responding to this kind of speech. (This doesn’t mean I approve the speech, tolerating it and approving it are apples and oranges.)Report

      • Avatar Roger in reply to Roger says:

        Sure I read it. I am having trouble getting how a prohibition on inciting violence is relevant to prohibitions on mocking religion.

        Yes, both make us less free in certain ways. But communication freedom isn’t the only human value.

        There is instrumental value in allowing people to question and mock each other’s ideas and beliefs. Part of this value is in rooting out error and dogma. This instrumental value does not carry over to trying to incite terrorist violence or the freedom to shout “fire” in public places.

        But I may still not be following you, and you may agree with me.Report

      • Avatar zic in reply to Roger says:

        Swap out this particular magazine, and replace it with SP’s “second-amendment solutions.” Or most any clip I’ve seen posted by liberals of a Ted Nugent concert.

        Threats are not okay; but as I understand that, ‘threat’ has to be specific; a specific person or place; not broad.

        Again, I don’t approve of this particular form of free speech; but I also don’t approve of the notion that it’s okay to limit it, either; it’s part of the problem of free speech; and limiting this would, I think, lead to limits on Palin or Nugent or anyone who called for opposition to existing power structures that I’d find very troublesome, despite my loathing for both Palin and Nugent.Report

      • Avatar Roger in reply to Roger says:

        Cool thanks…Report