Free Speech Maximalists

Leo Laporte said once again today "I'm a free speech maximalist" on the TWIG podcast, and once again I had the same visceral reaction to the term. We know that 'free speech maximalists' are nothing of the sort, though they frequently roll out this phrase to oppose any sort of limitation of online (or other) speech.

This goes beyond the political debate. Laport commented on Elon Musk's claim to be a free speech maximalist by saying "just use the phrase cis-gender on Twitter", suggesting (accurately) that Musk's 'maximalism' only flows one way. But it wouldn't matter even if Musk were more tolerant of progressive discourse.

That's what I'd like to make clear with this post by making it clear that there is a huge swath of free speech that the 'free speech maximalists' restrict'.

- least controversially, child sexual abuse materials (CASM) and related offensive materials, including snuff films and their ilk. This stuff should never see the light of day, and I have yet to find any 'free speech maximalists' defend it

- treasonous speech and speech that harms the national interest in a significant way, including leaking military secrets and the rest. There are exceptions - leaks in the public interest, such as the Pentagon Papers, are supported. But give away the secret to the atom bomb, and...

- libel and slander. Speech that says something false about a person, and that as a result harms that person, is subject to sanctions and penalties.

- trade secrets. A person working for one company cannot go to another company and disclose the first company's trade secrets. Trade secrets are considered property, and discussing trade secrets is considered a theft of that property.

- copyright materials, and other materials related to trademarks. A person cannot say they represent Coca-Cola if they don't, and a person cannot publish Harry Potter under their own name.

- speech intended to sway or otherwise exploit the stock market. As Musk himself has learned, there's a range of things you can't say to promote your company. As Martha Stewart, conversation leading to insider trading is among them.

- fraud, misrepresentation, and false advertising. You cannot impersonate other people, or impersonate police officials, or make statements about objects for sale that are false (though there's a lot of latitude here, which is why 'nut free' products can contain nuts)

- direct threats or statements of intent to cause harm

- incitement to riot, or other speech known by the speaker to directly cause harm to other people

As I said, this is a wide swath of speech that is prohibited. 

Now it might be argued that the speech described above has in common the fact that it causes harm to some specific person or class of people. And I agree - the unifying purpose of these prohibitions is to prevent harm - either harm caused in the production of the speech or material, or harm caused as a result of the dissemination of the material.

As it happens, I also agree that we should limit speech in order to prevent harm. Though I find it interesting that the way we measure harm here is either direct personal injury or abuse, or loss of property. Nothing else matters.

I'm not sure whether these are right boundaries around freedom of speech. I'm not saying that any of these types of speech ought to be allowed. But I think that it shows that we ought to reframe the argument between free speech maximalists and the rest of society. It's not about maximum freedom of speech. It's about how we draw these boundaries.

I'll reframe it in two particular ways: by reconsidering harm, and reconsidering loss.

Harm: there are many ways to harm a person other than physically harming them, and it is in the definition of other harms where people disagree about that sort of speech. 

The most obvious of these is indirect harm, for example, setting into motion a chain of events where a particular outcome couldn't be predicted, but where some outcome against some person could be predicted. For example, if you toss a stone down a mountain, it's very unlikely you could hit a specific person, but also very likely that you would hit someone. And for that you should be liable.

That's how speech against an identifiable group works. It doesn't cause harm to any specific person, but the cumulative effect of such speech is going to harm someone at some time in the future. If you keep accusing blue people of being baby-killers, eventually someone is going to take out a gun and kill a blue person. 

There are other harms that are not physical harms. Creating a climate of fear, gaslighting, casting doubt on reality, and related 'speech' behaviour all have psychological consequences. They create an environment where a person is unable to enjoy their life (aka 'quiet enjoyment'). A lot of abuse of women is like that.

Loss: we can lose more than just property. As suggested above, we can lose peace of mind, security, and enjoyment of life. Losing things of value can include losing one's history, or culture, or religion. But loss can be more wide-ranging.

For example, because we live in a society, and value social interaction, loss of social standing or social interaction, perhaps by singling out or ostracism is clearly a harm. Conversely, receiving too much attention from society is also a harm, one created (for example) by doxxing or piling on. 

These are all just examples, and we would need to talk about the severity of the harm or loss, and how it can be attributable to any sort of speech. But it should be clear that these other kinds of loss and harm exist, and I think that society would be well justified in addressing them.

And that's where the debate on freedom of speech takes place: in what can be counted as a harm or loss, and in how speech has an impact on that.

Hence we'll see free speech maximalists complain because people are saying 'happy holidays' instead of 'merry Christmas'. They know that nobody is preventing them from saying 'merry Christmas', but unless everyone does it, they fear the loss of (their) religion in society.

And when we see 'free speech maximalists' argue that people of certain persuasions should not wear hats, or scarves, or kirpans, it's not because they think these are dangerous, it's because they fear their own society is being lost in a sea of multiculturalism. 

And when they oppose the idea of people being gay or trans or of indeterminate sexuality, they oppose this form of expression because the ideas they represent create offense, or even just a feeling of repugnance, a type of harm.

'Free speech maximalists' are people who, from my perspective, priorize their definitions of harm or of loss, which (fortunately) overlaps with some of ours, but which dismisses as irrelevant or trivial and sort of harm or loss they don't personally feel.

And that's why I'm not a free speech maximalist.

I am not personally impacted by misogyny, or racism, or by atheism, but I know people who are. And it matters to me that they are as able as I am to enjoy the benefits of living in a society. So I think we as a society should move to limit the harms - all the harms - of speech and expression.

Not all of that needs to be enshrined into law. Some of it is just common politeness, where the harm isn't severe, but still knowable. But the rest of it - the things that turn a social network - or a society - into an uninhabitable and hate-filled cesspool, these we can take action against. And I have no problem with that.

Image: New Statesman