Category Archives: Free Speech

Solidarity and the Speech Rights of the Marginalized

Those sympathetic to libertarianism and classical liberalism tend to take free speech seriously. Beyond opposing the state regulation of speech, those sympathetic to libertarianism and classical liberalism also tend to favor social norms that are more, rather than less, permissive of different kinds of speech. Recently, however, members of the popular culture have expressed support for social norms that are less permissive of different kinds of speech, specifically for members of marginalized groups. This is evidenced by the growing number of people who are content to deride Black opponents of race-based affirmative action policies as “Uncle Toms” and “Aunt Jemimahs,” as well as by those who are content to lambast pro-life women for being traitors who’ve been brainwashed by the patriarchy to hold the views they hold. For the remainder of this post, I will show the problems with a line of argument someone could take to defend these liberty-constraining norms. By doing so, I hope to provide those sympathetic to libertarianism and classical liberalism something in the way of a response to those who favor social norms that are punishing toward those members of marginalized groups who express certain controversial views. 

Someone might argue that people, and especially members of the Black community, are permitted to meet the criticisms of race-based affirmative action policies made by a Black conservative with racially charged epithets, threats of ostracism, and ostracism by appealing to the value of solidarity. They might say that in order to overcome the threats of anti-Black racism in liberal society, Black people ought to show a united front. A single Black person alone cannot significantly change how racist their society is, but perhaps all or most Black people can. So all or most Black people should express support for policies and norms that are likely to significantly change how racist their society is. A Black person’s failure to support such policies and norms might be claimed to set back the interests of other Black people, since all or most Black people must show a united front to confront anti-Black racism in society. Alternatively, a Black person’s failure to support such policies and norms might be claimed to be unfair, since other Black people have burdened themselves to the benefit of the Black person in question by engaging in certain kinds of activism but the Black person in question does not likewise burden herself to the benefit of other Black people who have arguably benefited her. 

I draw issue, however, with the claim that members of a marginalized group such as the Black community must show a united front to overcome the oppression they face as group members. It seems that dissident members of marginalized groups have been positively instrumental to the end of overcoming the oppressions that members of these groups face. In the late nineteenth and early twentieth centuries, Booker T. Washington and W.E.B. Dubois were engaged in debates about what was necessary for Black liberation to be brought about in America. Dubois strongly disagreed with Washington’s views about how Black people bear the brunt of the responsibility for making something of themselves in American society, and wrote in The Souls of Black Folk that “Honest and earnest criticism from those whose interests are most nearly touched,––criticism of writers by readers, of government by those governed, of leaders by those led,––this is the soul of democracy and the safeguard of modern society” (36). As Dubois says, it appears that dissent within marginalized groups about matters that affect group members is crucial to these group members identifying viable means through which to resist the oppression they face. 

We can see this insight at work especially when we consider the cases of Andrew Sullivan and Camille Paglia as dissenting members of the LGBT+ community. In 1989, Andrew Sullivan (a gay, conservative political commentator) published the first national cover story in defense of same-sex marriage legalization in The New Republic. The principles he appealed to in this piece, however, were not those that were embraced by all, or even most, gay people. And in 1990, Camille Paglia (a lesbian academic) published Sexual Personae, a work in which she offers a compelling defense of androgynous gender presentation, albeit by predicating her view on traditionalistic understandings of gender of which members of the LGBT+ community are skeptical. The contributions that both of these thinkers made to public discourse on the matters they wrote about were profound. And if we were content to enact social sanctions against them for being heterodox members of the LGBT+ community, we might find ourselves deprived of the social progress they may have in part been responsible for since they would be deterred from speaking their minds. This, I think, speaks in favor of norms that are more, rather than less, permissive of members of marginalized groups speaking their minds when their views stand in tension with the “consensus” views of their communities. 

Even if it were true that liberation for marginalized people is possible only by getting all or most members of each respective group on the same ideological page, it would not follow that dissenters in these groups do anything wrong by dissenting. Consider a parallel context in which a problem of collective action does not generate obligations for individuals to resolve the problem. It might be true that one of the only ways to put a stop to the atrocities that take place on factory farms, for example, is by getting everyone to adhere to a vegan lifestyle. Still, it would be inappropriate to claim that individuals are obligated to adhere to a vegan lifestyle on these grounds, because any individual’s adherence to a vegan lifestyle will not make a difference to the number of animals being brutally slaughtered on factory farms. Likewise, it would be inappropriate to claim that dissident members of marginalized groups are obligated to suppress their views, because any individual’s choice to suppress their views, at least in the vast majority of cases, will not make a difference for how oppressed other members of their groups are. And if dissident members of marginalized groups have no obligation to suppress their views, the strongest basis for justifying social sanctions against them is unavailable to those who wish to belittle or ostracize these members for expressing their views.
 
There is obviously much more to be said about these issues. There might, for example, be other lines of argument one could take to justify the claim that members of marginalized groups are obligated to suppress their dissident views. Or, one might be concerned with justifying the claim that dissident members of marginalized groups have moral reasons, rather than a moral obligation, to abstain from expressing their views. I do not have enough space to address these arguments in this post, though I hope to take them up in future posts. Still, I think it is useful and important to know that at least one of the arguments that could be offered to justify less permissive speech norms for members of marginalized groups is unsuccessful.

Thanks to Andrew Jason Cohen for helpful feedback on an earlier version of this post.

About Service To All

Political polarization is a now common phenomenon. Whereas people in the past believed their children should not marry someone of a different race or religion, it now seems that a growing number of people believe their children should not marry someone of a different political party. (See this.) Perhaps this switch is understandable.

Humans tend to be tribal (see Greene) and as the tribal connections based on race, religion, and even ethnicity, have grown weaker, it may be that bonds based on political affiliation have become more important. In any case, we have seen instances where store owners want to refuse service to those who reject their ideological commitments—perhaps only one (mask wearing requirements vs mask wearing prohibitions) and we may see more (Democrat vs Republican). Should store owners be legally permitted to refuse service to those they disagree with on some ideological ground? This is not a new question; it’s an old question simply focused on a new sort of difference.

In the past, we’ve asked whether white store owners should be able to refuse service to people of color, whether heterosexual store owners should be able to refuse service to homosexuals, whether Christian store owners should be able to refuse service to non-Christians. My answer here is the same as my answer to all of those: yes, with a caveat. (NOTE: I am not asking if someone from one group should refuse service to anyone outside their group; I am asking if they should be legally allowed to. In my view, it is frequently the case that people ought to be legally allowed to do things they ought not do.)

My basic view is that in denying a person service, the store owner is not essentially doing anything to the individual and so cannot be said to be harming them. I won’t press that point though. It is sufficient that if it is harming them, it does so without violating their rights or otherwise wronging them (it may be stupid or misguided; I suspect that for many refusing service to someone of a particular group, it is less about those others and more about their desire to live their own life as they think they should).

Absent wrongful harm I do not think interference—e.g., to require the store owner provide the service—is permissible. Putting this differently, my basic view is that one needs an argument to show that a business-owner’s refusing to serve a particular customer wrongfully harms that customer if one wants to override the presumption of liberty that the store owner has to run her store as she wishes. While I suspect such weighty arguments are rare, I do think they can be made in certain instances. For example, if all of the grocery stores in a given area refused to sell to someone, it would likely be a clear and wrongful harm to that individual (especially if, as in the relevant historical case, those being denied service had no recourse). A single store doing so, by contrast, is unlikely to hurt the person (or at least not in anything but a de minimis way).

I imagine that some would suggest that there is always a wrongful harm here in the form of a dignatarian harm—i.e., a harm to the individual’s dignity—perhaps especially if the refusal is based on the individual’s race, religion, or ideology. Pointing to a dignatarian harm, of course, does not suggest there are no other harms (causing someone to starve by refusing them service, for example, is an obvious harm; plausibly causing them to have to travel a great distance for service would as well). Here, though, I am assuming there are no other harms at issue—if there are (and they are not de minimis), interference may well be warranted. I am skeptical, though, of the likelihood of dignatarian harms being caused by a store owner refusing service to someone—at least absent structural issues. If 99 of 100 stores of the relevant type are willing to serve the individual, why would a single outlier cause a harm to the person’s dignity? Where I live, there are (I think) six chain grocery stores. It’s hard to believe that the owners or employees of the four I never enter have their dignity harmed by my withholding my utilizing of their businesses. If you think this is only because they are corporate owned, I will add that a bit further away there are several family owned grocery stores and none of them seem to have their dignity harmed by my choice either.

Some might suggest there is a difference between store owners and customers that is somehow relevant. Perhaps so. The only difference I can think of (actually, I didn’t think of it myself!) is that the customer is (or might be) engaging in the transaction to get something needed, while the storeowner is only getting money. The customer is thus supposedly at the mercy of the storeowner in a way that the reverse is not true. I do not think this difference is real. After all, the store owner is looking to get money from the transaction so that they can pay for the things they need. If all stores refuse to serve a particular person, that person will suffer; if everyone refuses to buy from a particular store, that store owner will suffer. Again, so long as the customer can go elsewhere for what they need, I think there is little cause for concern. (Again, if there are no competing storeowners willing or able to do business with the customer, the situation may be different.)

I am not sure what other relevant difference there might be between store owners and customers. Surely, if I intentionally and loudly boycott a particular store, broadcasting my complaints about the store—perhaps truthfully talking about the incompetent owner and workers—the store owner could plausibly have their dignity harmed. If, though, I merely refuse to buy from them without broadcasting my claims (perhaps add that my claims would be neither defamatory nor otherwise tortious), it is hard to believe my refusal to buy from them wrongly causes them a harm. (Indeed, it’s hard to take seriously the claim that I have done anything to them at all.). Merely refusing to sell to someone seems to be the same. No harm to dignity seems plausible. (Again, mass or universal refusal or legal inability to sell to members of a group—and mass or universal refusal or legal inability to buy from members of a group—may be different.)

I’ll end by being clear that I do not see any reason to deny that there are real dignatarian harms. In a theocratic society where women are denied the rights to vote, to own property, to work outside the home, etc, it seems entirely reasonable to think there is a wrongful setback to their interest in their own personal dignity. Such harms would plausibly be independent of physical, financial, or even psychological harms. These would be harms even to women who were happy in the society, well treated, and financially, physically, and psychologically secure. Similarly, as already indicated, if all storeowners were united—or forced—to withhold service to some group of individuals there would be plausible dignatarian harm. But if we are talking of an individual store owner refusing service to such a group, it seems implausible.


Thanks to Payden Alder for getting me thinking about this stuff again and to Jim Taggart, Connor Kianpour, and Andrew I. Cohen for comments on a draft. (Connor gave the possible objection about a difference between storeowners and customers.)

Locke and Land Acknowledgements 

The following is a guest post by Kyle Swan, Professor of Philosophy and Director of Center for Practical and Professional Ethics at CSU Sacramento.


Stuart Reges is suing his employer, the University of Washington, for violating his First Amendment speech rights. The University initiated an investigation into whether Reges violated its anti-harassment policy for publishing a land acknowledgement statement on his course syllabus. His read, 

“I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.” 

Reges is protesting the recommended acknowledgment circulated by the University. The protest is clearly protected speech. I hope Reges wins his suit decisively. 

But what about Reges’s statement? He appears to be serious. In a Quillette article he writes, 

“I am a Georgist, and according to the Georgist worldview, Native Americans have no special claim to any land, just like the rest of us. But since few are familiar with that economic ideology, I leaned instead on a principle described in John Locke’s Second Treatise on Government, now known as the labor theory of property or the ‘homestead principle.’ To the Georgist idea that land is owned in common by all living people, Locke added that by mixing one’s labor with the land, one encloses it from the shared property because people own the products of their labor. If, for example, you make the effort to grow corn on an acre of land, you come to own that acre of land, so long as there is still plenty of land left for others to use.” 

The labor theory Reges refers to is a theory of property acquisition. In its original state, the entire earth is given to us in common. Nobody owns stuff in the world. The question is, how can we remove things from the commons and make rightful claims to them that would allow us then to exclude others from using them? 

Locke provides some conditions. First, it has to be true that someone hasn’t already done that — the stuff has to not be already owned. Second, the person appropriating something from the commons has to do it in a way that improves it through their productive activity — gathering berries, hunting deer, growing vegetables, clearing trees — all kinds of activity counts. Finally, the way they do this has to leave enough and as good for others, so that no one would have reason to complain about the appropriation. 

Professor Reges’s acknowledgment is saying that Coastal Salish people weren’t ever in a position to claim ownership. They were never rightful owners. So when settlers came to the area in the late 1840s or whenever, he supposes these settlers were appropriating the land from the commons, rather than from a group of people. 

Professor Reges’s application of Locke’s theory is dubious. I’m a philosopher, not a historian, but it seems unlikely to me that there were no groups of native people engaged in productive activity in the relevant areas when settlers showed up. 

More importantly, though, if Reges is correct and there weren’t people there already with legitimate ownership claims, then the behavior of government authorities in the mid-19th C was very odd. Because what they were doing was negotiating treaties with the native peoples, including the Salish. Doing so suggests their recognition of legitimate claims made by these groups. Why were they making contracts to acquire land from these native peoples if they didn’t own the land? It seems incredible they would do this if they regarded the lands as unused, unoccupied, and unowned. So it looks like this was a transfer of land ownership rights, not an original appropriation of them. 

Now everything hangs on how these contracts were presented and executed. Were the negotiations above board? Were all the relevant people groups represented? Did they all sign? Were all the terms of the contract fulfilled? Again, I’m a philosopher, not a historian, but if not, if there were problems with the agreement, then there wasn’t a legitimate transfer of the Washington territories. 

If that’s right, then a different part of Locke’s theory applies, which you can find in a later chapter of the 2nd Treatise, Of Conquest. There Locke argues that an aggressor who “unjustly invades another man’s right can…never come to have a right over the conquered…. Should a robber break into my house, and with a dagger at my throat make me seal deeds to convey my estate to him, would this give him any title? Just such a title, by his sword, has an unjust conqueror, who forces me into submission. The injury and the crime is equal, whether committed by the wearer of a crown, or some petty villain. The title of the offender, and the number of his followers, make no difference in the offence, unless it be to aggravate it.” 

And so “the inhabitants of any country who are descended and derive a title to their estates from those who are subdued and had a government forced upon them against their free consents, retain a right to the possession of their ancestors….the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves….If it be objected, This would cause endless trouble; I answer, no more than justice does.” 

Locke’s theory of acquisition has two parts. The first is a theory about how original appropriation would be legitimate. The answer has to do with labor and productive activity. But that part doesn’t seem to apply to this case, since it looks like the Salish already had an existing claim. The second part of the theory is about how acquisition by transfer would be legitimate. The answer here has to do with agreement, and everything depends on the quality of the agreement and how it was or wasn’t honored. But we see there’s more to the story. When there has been no agreement, no just transfer and only conquest, Locke says that people retain “the native right of their ancestors.” 

Locke has long been accused of providing intellectual and justificatory cover for the (mis)appropriation of Indigenous people’s land in America and around the world. But it seems like it’s been Locke’s views that have been misappropriated.

Interpretive Charity and Heated Debate

I wanted to add to the discussion my co-bloggers have started on discourse norms.

Consider the following sample dialogues

1)
A: “I think stricter gun regulations would fail to prevent either determined criminals or the seriously deranged from committing the sorts of horrible crimes that make people want those stricter laws, but they would violate the rights of law-abiding gun owners and possibly make them less safe.”

B: “I think you’re mistaken about that.  Just as criminal background checks make good sense, so would some sort of red-flag or mental health history screening.  Indeed, since we already use criminal background checks, we could easily combine the two, plus it would help if there weren’t easy ways to circumvent the background checks.”

2)
A: “ I think stricter gun regulations would fail to prevent either determined criminals or the seriously deranged from committing the sorts of horrible crimes that make people want those stricter laws, but they would violate the rights of law-abiding gun owners and possibly make them less safe.”

B*: “That’s outrageous.  You think guns are more important than kids’ lives?”

3)
A: “I think there’s no plausible rationale for tighter abortion restrictions.  Claiming that life begins at conception is a religious doctrine, so using it as the basis for law would violate church-state separation.  In many religions, personhood isn’t thought to obtain until at least the 2nd trimester.   In any case, there are all sorts of reasons a woman might seek to terminate a pregnancy, medical ones most obviously, but also psychological reasons, and I think the best public policy would be to leave it up to her.”

B: “I disagree.  I am not depending on any particular religious doctrine when I claim that human life begins at conception. It’s a developmental spectrum, there are no sharp dividing lines, so if we don’t respect the new life that the pregnancy represents as early as possible, it’s a slippery slope.  As to the reasons why women might want to terminate, sure, if there’s a legitimate medical rationale that the mother’s life is in jeopardy, I can see that, but I think a lot of what you’re calling psychological reasons could be addressed through counseling, spiritual or secular.”

4)
A: “I think there’s no plausible rationale for tighter abortion restrictions.  Claiming that life begins at conception is a religious doctrine, so using it as the basis for law would violate church-state separation.  In many religions, personhood isn’t thought to obtain until at least the 2nd trimester.   In any case, there are all sorts of reasons a woman might seek to terminate a pregnancy, medical ones most obviously, but also psychological reasons, and I think the best public policy would be to leave it up to her.”

B*: “That’s outrageous. You think it’s ok to murder babies to preserve some illusion of women’s autonomy?”

————————

You may have noticed that dialogues (1) and (3) read very differently than (2) and (4).   That’s because in (1) and (3), the B character is responding to the A character’s arguments with different arguments.   In (2) and (4), the B* character does not actually engage with A’s arguments at all, but goes right for “baby-killer.”   Regardless of your view on either abortion or gun control, you should be able to see that in (2) and (4), B* is not arguing in a rational way, whereas B is arguing rationally in (1) and (3).   Does A actually hold the position that B* alleges?  Almost certainly not.  This is commonly known as the “straw man” fallacy; in this case augmented by an emotional appeal.  We know this because in the other pair of dialogues, B is offering actual counter-arguments. 

Why does this matter?   Because when people argue about these things, they have two sorts of objectives.  One is changing the mind of the other person, or perhaps onlookers.  The other is changing public policy.   But neither of these goals will be served with arguments that do not engage their opponents.  It’s totally implausible that A will respond to B* with “oh goodness, I didn’t realize I was advocating baby-killing, I hereby change my position.”  What happens instead is the discussion goes nowhere.

Sometimes we just get angry at people who disagree with us, and we are bewildered that others don’t see things our way.  But we should resist the temptation to straw-man.  If you don’t have the emotional bandwidth to argue with people, you’re certainly not required to do so.  But if you do think it’s worth arguing about, then your objectives will be better served with interpretive charity.  What actually is the other person’s position, and why?  Why do they think your position is wrong?  Is there something that might be common ground?  Are you talking past each other?  Are you sure that your position is informed by facts and logic?  Do you have any talking points that might be misinformed?

Sometimes we never resolve disagreements on highly controversial issues.  But if you hope to get anywhere, there’s a right way and a wrong way to do it.

Georgetown University Does Not Have a Speech and Expression Policy

The following is a guest post by John Hasnas. Dr. Hasnas is a Professor of Ethics at Georgetown University’s McDonough School of Business and Professor of Law (by courtesy) at Georgetown Law Center.

In 2017, to great fanfare, Georgetown University adopted a speech and expression policy that states,

It is Georgetown University’s policy to provide all members of the University community, including faculty, students, and staff, the broadest possible latitude to speak, write, listen, challenge, and learn. . . . It is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Deliberation or debate may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived.

On January 26, 2021, the incoming Executive Director of Georgetown law’s Center for the Constitution, Ilya Shapiro, expressed his disapproval of President Biden’s decision to consider only African-American women for appointment to the Supreme Court by tweeting: “Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman.”

On January 27, the dean of Georgetown Law published a campus-wide e-mail in which he called the tweet “appalling” and “at odds with everything we stand for at Georgetown Law.” On January 31, the dean placed the director on “administrative leave, pending an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment.” 

On June 2, the dean published a campus wide e-mail in which he stated that Mr. Shapiro’s “tweets could be reasonably understood, and were in fact understood by many, to disparage any Black woman the President might nominate.” He went on to explain that 

In considering how to address the impact of Mr. Shapiro’s tweets, I was guided by two overarching principles. The first is the Law Center’s dedication to speech and expression. Georgetown University’s Speech and Expression Policy provides that the “University is committed to free and open inquiry, deliberation and debate in all matters, and the untrammeled verbal and nonverbal expression of ideas.” The second and equally important principle was our dedication to building a culture of equity and inclusion (emphasis added).

He then pointed out that the speech and expression policy states that “[t]he freedom to debate and discuss the merits of competing ideas does not mean that individuals may say whatever they wish, wherever they wish.” He further noted that speech that violates the University’s Policy Statement on Harassment is prohibited and that the Speech and Expression Policy does not supersede professional conduct policies or HR policies. He omitted the next sentence that states, “But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions not be used in a manner that is inconsistent with the University’s commitment to a free and open discussion of ideas.”

The dean concluded his e-mail by stating,

Georgetown Law is committed to preserving and protecting the right of free and open inquiry, deliberation, and debate. We have an equally compelling obligation to foster a campus community that is free from bias, and in which every member is treated with respect and courtesy. I am committed to continuing to strive toward both of these indispensable goals (emphasis added).

Apparently, Georgetown has equally compelling commitments to “free and open inquiry, deliberation, and debate” and “to foster a campus community that is free from bias, and in which every member is treated with respect and courtesy.” 

Combining these two commitments means that Georgetown’s policy is to provide all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn unless some members of the Georgetown community could reasonably understand what is being expressed as disparaging them or the administration finds the comments at odds with what Georgetown stands for. It means that Georgetown believes that it is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive unless they offend some members of the Georgetown community. It means that members of the Georgetown community are free to express ideas that others find to be offensive, unwise, immoral, or ill conceived unless students or administrators deem them too offensive, unwise, immoral, or ill conceived to be permitted.

It means that Georgetown University does not have a speech and expression policy.

Editors note: Yesterday, Ilya Shapiro resigned his position at Georgetown, claiming it would be a hostile work environment wherein he was set up to fail.

Congressional SnowFlakes

I wasn’t going to write anything about this as it seemed too obvious to comment on, but I haven’t seen others do so—and it is worth noticing.

There has been, and continues to be, talk about college students and people on the left as “snow flakes” and weak/soft/thin-skinned, too easily hurt by speakers on campus. The extent to which college students take offense at comments may (or not) be greater than it was in the past. Last week, though, we saw Republican Congresspeople doing the same thing. See this.

Liz Cheney has been telling the truth about the 2020 election and (some of) the lies coming from Donald Trump and his sycophants. She has not, so far as I have seen, been particularly rude about it. She has simply pointed out that some people seem intent on enabling and spreading Trump’s lies. The response includes claims of being offended and “hurt.” (TN Rep. Chuck Fleishmann: “It hurt me very much.” A lobbyist: “what she’s said was offensive to me, and many others.”)

It is not unusual on college campuses to hear claims that speech can harm so badly that we should not only be concerned, but also set policies to prevent such. Speech codes were/are meant to prevent harm. This is the sort of concept creep—where we talk of things previously thought non-harmful as harmful—that I worried about in my Toleration and Freedom from Harm and that Frank Furedi worried about in his On Tolerance.

Furedi’s concern was with acceptance of a “transformation of distress into a condition of emotional injury” (106) that would be used to justify interference meant to silence discussions that might somehow endanger those offended (or those they pretend to protect). A standard response is that such people are too weak to hear (or have others hear) anything that might offend them, cause them to doubt themselves, or that simply might not put them in the best light. Cheney is clearly not putting most of those in her party in the best light and offending some to the point of “hurt.” One wonders if her detractors will try to pass some sort of congressional speech code.