Thursday, January 29, 2015

Free Expression and its Discontents

Now that the initial panic and political posturing that accompanied the Sony film The Interview and then the terrorist murder of the French Charlie Hebdo cartoonists have abated, it is time to look more carefully and dispassionately at some of the issues those events have highlighted.

My concern was first aroused during the initial contretemps surrounding the movie, North Korea's hacking damage to Sony, the presumed threat of further damage, and Sony's initial decision not to release the movie as scheduled. At the time, I had no interest in seeing the film and no intention to do so. Still, I agreed with the President and others who considered Sony's action somewhat cowardly. That said, I was appalled to hear serious voices advocating the movie because of some supposed obligation (on the part of citizens) to the First Amendment. 

Our famous First Amendment, however, imposes no obligations upon anyone - except government. In its original iteration, it imposed an obligation only on the Federal Government. Congress shall make no law ... Its problematic extension to state governments is a separate issue, which we can ignore for now. Even assuming its applicability to all levels of US government - federal and state - what the First Amendment does is prohibit the government from restricting citizens' free exercise of religion, speech, etc. It does so in recognition of the fact, already evident in the 18th century, of pluralism of opinions (religious, political, and otherwise) in our society and a philosophical commitment to maintaining the necessary pre-conditions for a free society.  Constitutional jurisprudence has minimally circumscribed these fundamental freedoms, rightly prioritizing these rights as essential for the functioning and survival of a free society and the freedom of expression (religious, political, and otherwise) which that requires. 

All religions and philosophical or political persuasions have a common interest in maintaining these freedoms from state encroachment. That is why I have consistently been uncomfortable with laws regulating "hate speech" and with the punishment of so-called "hate crimes," which penalize not just criminal acts (already illegal) but the opinions of those who perpetrate them. 

What the First Amendment does not do, however, is require me or anyone else (or any private non-governmental institutions) to agree with or endorse in any way someone else's spoken or written opinions. What we must do is acknowledge and respect the legal right of anyone to express beliefs or views we may strongly disagree with or even find fundamentally abhorrent. Therefore, no one should normally expect the state to intervene to protect us from having to hear or read words which offend us. Nor, needless to say, is anyone free to use violence to avoid being offended or to punish the offender. In civilized societies, under normal conditions the state - and only the state - has a legitimate monopoly on violence. So the violence inflicted on Sony and, a fortiori, the murder of the Charlie Hebdo cartoonists was criminal and should be punished accordingly.

That said, however, everyone (apart from government) remains free (as free as the offenders) to express one's disagreement and to take offense - free therefore to boycott an offending entity, for example, and to encourage others to do so. That too is part of the interplay of ideas that characterizes a free society. That means that one can completely condemn, for example, the criminal killing of cartoonists, without feeling any sympathy for their cartoons. 

Indeed, if one aspires to be not just a free society but a decent, humane, and - dare one suggest - even a just and moral society, then one can and should express appropriate disdain for those free expressions that violate reasonable standards of decency and taste, not to mention one's deeply held religious or other beliefs. That too is a consequence of pluralism. 

A free society may have to tolerate all sorts of undesirable expression; but for pluralism to work effectively it is also important that citizens be imbued with a certain sense of mutual acceptance, which will then socially stigmatize (without legally prohibiting) offensive expression. To the extent that American pluralism has worked as well as it has over the years, that is in part because legal freedom of expression has been balanced by a social consensus that significantly stigmatizes being gratuitously offensive.

That too, of course, can go too far - not only fostering pluralism by stigmatizing offensiveness, but also inhibiting expressions of legitimate differences of opinion. Just as legal freedom needs to be balanced by the social stigmatization of gratuitous offense, so too one's readiness to take offense must be balanced by an acceptance of the legitimacy of differing opinions, beliefs, and values. Where that is lacking, we encounter the excesses of so-called "political correctness," which end up inhibiting the free speech and expression that are so essential for society. Nowhere is this perhaps more of a challenge than at universities which must somehow simultaneously promote mutual respect and tolerance while encouraging the free exploration of different and challenging ideas.

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