The Question of Free Speech

2013-12-19-CourtesyofCrossmap

 

Whenever a public figure—be it a politician, or a pundit, or a reality TV star, or a musician—makes some kind of controversial statement in a public setting, we get dragged into vague conversations of “rights” and “free speech.” I personally always find discussions of free speech particularly frustrating, namely because of the way we define (or, really, fail to define) what exactly we mean by free speech. Naturally, when we talk about our right to speak freely, we refer to the first amendment, which reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Yet this is not particularly helpful. Granted, I am not a Constitutional scholar, but textually speaking, the first amendment addresses governmental censorship of speech specifically. It is concerned with protecting political dissenters, religious minorities, etc. from governmental suppression. So, when we talk, for instance, about free speech and the first amendment as it relates to Phil Robertson of Duck Dynasty fame, who late last week received criticism for comments he made that many consider to be homophobic, we are not really talking about the first amendment. A&E did not suspend Phil Robertson at the behest of some law from Congress; the government was not involved at all. It was a private action. Really, then, the controversy is not one of law, but of culture and principle.

Critics of A&E’s decision to suspend Robertson claim that it limits his first amendment rights. Now, under the first amendment as it actually reads, this is not the case, at least as far as I can tell. These critics do, however, raise an interesting point. Is there a right to free speech that expands beyond that articulated in the first amendment, a cultural or moral one, to which we all subscribe, even if unlegislated? Does an employer have a right to discriminate based on personal beliefs, on actions made when off the job? Can we, in general, truly trace boundaries between the spheres of our lives in the “age of information,” when one’s political leanings and the like are as available as someone’s number in the phonebook?

At some level, I think we can all agree that we must somehow protect speech in private contexts as well as public ones. Companies should not be allowed to fire someone for being an Atheist or a Christian, or a Democrat or a Republican. If the speech does not advocate violence, and is not made in a professional setting, or as a representative of the employer, employees should have a right to say what they want to without fearing repercussions from their bosses. Yet to what extent is Phil Robertson ever just speaking as a private citizen, away from a professional context? This is, to an extent, a problem of reality television. Phil Robertson is famous for being Phil Robertson. When he speaks, he speaks as a star of a show on a network that has the rights to that show. He always represents the network. But does this mean he does not have the right to say what he thinks? Are we content to say that he consented to the restriction of his speech by signing on to Duck Dynasty in the first place? Separating the spheres of our lives, at this point, would require an odd form of multiple-consciousness, though it is one we may need to develop if we want to maintain our old ideas of privacy and the separation of our private and public selves. This consciousness would require an ability to filter and discriminate information based on constantly changing criteria and contexts. It would require a distinct ability to separate one’s own emotions from one’s critical and interpersonal thinking.

This would be especially tricky because it would require fracturing, in many regards, what we think of as the self. While we have separations of spheres in our current mode of social thinking, these separations are founded primarily in ignorance. One has no problem working with a co-worker if he or she does not know that said co-worker is a neo-Nazi, or a socialist, or a libertarian, or a centrist Democrat. One’s business away from the workplace is one’s business. If we are to maintain these separations now, however, we cannot base them in ignorance, but in the construction and acknowledgement of multiple selves. We must have the idea of a professional self, composed of the information provided in professional contexts. There is a private self, which is the self that exists in non-professional, non-public (meaning non-governmental or political) settings. There is a public self, which can intersect with the professional self, which is the self that exists in public spaces, whether governmental or not, that is the “default” setting of self that one presents to the world. There is the political self, which intersects between the public and private selves, but must stay away from the professional self. Such would be the thinking in a world in which we maintain distance between the various spheres of our lives.

This is problematic for a number of reasons. First of all, this is an emotionally troubling way of thinking. We cannot ask people to become machines, to so thoroughly separate their critical thinking from their emotional thinking. The two are inexorably intertwined. Secondly, it assumes that a person can, in a democratic society, ever be non-political. Democracy is a holistic way of life. In its ideal form, it permeates culture, economics, social interaction, professional life, and more. It is a participatory system that bleeds out of our exclusively political contexts. If someone is “non-political” they are not fulfilling their responsibilities. That does not mean they need to be extreme, nor does it mean they must join a party, or allow politics themselves to dominate every facet of their life. Political life is not a veneer to coat over the elements of your life, but a bedrock against which to settle those other parts of your life. To be political is simply to consider the political outside of governmental contexts, to think about the ways in which the assumedly non-political affects and is affected by the political. This sort of thinking that demands us to separate the political from the assumedly non-political, as a result, is undemocratic. It separates us from our responsibilities.

The greatest of these reasons, however, would be the degradation of a public morality, which ties closely into my last point, in many ways. Now, I do not believe in a single public morality, necessarily. I think that people approach situations differently, and that these differing approaches, when synthesized properly through democratic means, are essentially a good thing. I do, however, believe in a public ethic of morality, meaning that I think that all Americans carry a belief that public life should be governed by some kind of morality, that we believe one has an obligation to think of public affairs through a moral lens. That is just how we are, for better or worse. A system of multiple-consciousness would undermine this, though. It would require us to ignore things that we saw as unjust. It would, in some ways, prevent public programs of action. I do believe, to some extent, in the idea of a self of multiplicity. I think that hard criminals can be kind fathers. I think that human rights activists can be bitter, cruel people. But if private beliefs result in public action, we cannot limit ourselves to saying that these are not issues for action, public or private, in response. It may be time, then, to eliminate these spheres, to acknowledge that life, like information, must amalgamate into a more singular, holistic focus, in which we understand the interplay between its different facets.

Still, what room is there then to let people speak their minds? As much as I may disagree with Robertson’s statements, I cannot help but wonder how I would feel if these views were ones that I agreed with, that I felt were not hateful and did not preach violence, as many Robertson supporters argue is the case for his comments. We need not look far back in history to find a similar situation with the socio-political positions flipped. The Hollywood Blacklists of the 1950’s involved private groups of anti-communists compiling lists of alleged communist sympathizers so that movie sets would not hire said sympathizers. We look back on it as a dark day, as a morally unsound practice. Yet it was private censorship, not public. Employers were punishing the views of its employees, even if those views did not come into play in professional settings. So why do we today consider that older practice immoral, and our newer moral? Because we find one set of views harmless, and the other hateful? Though we can certainly argue about the content of the censored speech in the two instances, I am not sure we can argue about the method. They are one in the same, in many ways, and I don’t think that saying Robertson is a homophobe (true or not) somehow reconciles the dissonance between our reactions to the two instances.

That is not to say that critics of Phil Robertson are wrong to criticize him. They bring up their own fair points in responding to critiques of their attempts to respond to him. As many point out, this right of free speech that we loosely refer to guarantees the right to say something– it does not guarantee the right to escape the consequences of those statements. If someone wants to boycott a store whose CEO contributes money to liberal or conservative causes, that is within one’s rights as much as the CEO’s donations were within his or hers. Fundamentally, his right to say something is still in tact. It may require greater sacrifice to say something, but there is no restriction. There is no criminal consequence. Beyond that, liberal critics of his claim that there is something hypocritical in groups that often advocate the supremacy of the private sphere and private industry complaining about the actions of private entities, as they accuse people on the right of doing. The same people who argue that businesses should be allowed not to serve LGBTQ people are the same ones who are arguing that it is unfair that a private entity like A&E discriminate against its employees based on similar criteria. This thinking, as they point out, is inconsistent.

We are, in many ways, entering unchartered territory. Though the issue is obviously not one of the first amendment as written, it is certainly an issue of a cultural, de facto first amendment that we have constructed loosely in our collective imagination. If we are to decide what we think constitutes our rights to free speech as private citizens, away from the government, we must first decide what constitutes speech. We seem to have settled, for instance, on money being a form of speech. If you do not like the political position of a company, you do not buy their products. In turn, you give your money to companies that “share your values.” Everyone, pretty much universally, agrees that this is a fair practice on an individual scale. And yet, when we do it on an organized scale, some of us reject it, asking how we can take away someone’s livelihood simply because of his or her political or social beliefs. There’s no real reason, however, as to why we should consider this act different on an individual scale, or an organized one. The principle is still the same; the only difference is the outcome.

Primarily, our problems come from the way in which we think of money as speech. A great deal of people—I one of them—finds the unbridled spending that goes on in our politics troublesome. The rich should not be allowed to by elections; they should not be allowed to buy public opinion; and they should not be able to turn the government towards their advantages, and away from the needs of the country as a whole. When we make money speech, however, that is what happens, as reductionist a depiction of consequence that may be.

So how, then, do we reconcile our beliefs that purchases are speech, and unlimited donations are not? Some may argue that it’s a matter of threshold, of degree. The act of speech is not the extreme to which you can make the act. If you make a donation to a candidate, you endorse that candidate. When you buy from your local store rather than Walmart, you support your local store, and (potentially) indict Walmart. Some may argue that the ability to donate million dollars versus one hundred restricts the ways in which supporters can demonstrate the sincerity or degree of their support of a candidate, that it is the equivalent of a shout versus a murmur. This is a weak argument, however. If a rich or famous person likes a candidate so much they want to donate a million dollars, they can write an op-ed, they can volunteer, they can issue a press release. There are a million ways in which millionaires can make their speech known to a far greater extent than those who make less money can. And that’s fine, because those channels are, fundamentally, open to all. Every person has 24 hours in a day. Everyone can mail the New York Times (though, admittedly, not everyone can get published in it). If we say that money directly constitutes speech, we essentially say that all voices are not created equal, that some people’s interests matter more than others, and that strikes me as remarkably undemocratic, and unfair, though I suppose the Supreme Court doesn’t agree with me on this.

It is difficult to take a position on this. How can one not be confused when the sides that one can take are themselves so confused? On the right, we have the position that businesses should be allowed to discriminate, that money is speech, but that boycotts and suspensions and the like are wrong. On the left, we see people who are only willing to protect some people from such consequences, and not others. Even our vocabulary itself is muddled. These terms “public” and “private” today mean nothing, really. We have private opinions on public matters. We carry our private opinions into public situations, and allow them to govern our behavior. The private, in short, is the public, and the public, in many ways, the private. The entirety of our vocabulary is insufficient, to the point that the phrase “free speech” doesn’t even mean anything anymore. If we want to take serious positions, if we want to create real, coherent programs of action, we need to fix the way we talk about this problem. Until then, however, I suppose we must do the best we can, while we wait for that vocabulary to develop.

There is, however, one thing that we can settle on, and that is the question of capital. If capital is speech, you fall on one side of this debate, and if capital is not, you fall on the other. I do not believe that money is speech. I believe that it is coercive, that it ignores the tenets of democracy. I think that elections should be public, or that donation caps should be so low that everyone can donate the same amount of money easily. I do not think that it is right to fire someone based on their personal beliefs, be they political, religious, or social. Now, if you believe the money is speech, then there is no problem. Robertson is just getting what he deserves, in that line of thinking. There is no difference between firing someone or withholding a profit from someone or donating exorbitant amounts of money, if this is the case.


 

There is nothing legally wrong with Phil Robertson’s suspension. A&E should have the right to suspend him if his actions are bad for business. While his case is unique in that his job prevents him from ever speaking as anything other than a representative of the network, the point remains the same for anything I have been talking about, really. There is no legislated governance for any of this, and there can never be. It would be hopeless to look to some legal resolution to the problems of speech in this country, in solely private contexts. To limit these boycotts and suspensions would itself be a suppression of speech as we understand it, and yet allowing them also limits speech. And while it is easy to say that all speech is free, one must simply deal with the consequences, I think that is an overly simplistic philosophy. What we need, really, is a system of ethics to govern our private interactions—private in this case meaning that which is away from the jurisdiction of governmental action. While it is within our rights to boycott or suspend or ban, we must ask ourselves, regardless of political party or social position, in what circumstances we think it is morally acceptable to do so. The Civil Rights Movement was certainly justified in its protestation, as were those who protested the Vietnam War. There was no way to fight for these issues in any other way; the circumstances of the situations had escaped the proper parameters of democracy. People were oppressed, derived of equal process, of their votes and their voices, of their right not to fight in a war they did not believe in. They had no political efficacy outside of those actions. Still, it was not solely the circumstances that were different, but the method itself. These protests, though large, though organized, though impassioned, were never coercive, because they were almost never economic. The March on Washington never directly deprived anyone of an income. It was about advocating a message, rather than using profit margins to influence behavior. Though we may think that a protest is a protest, these methods of protestation are significantly different.

This is the fundamental issue, not solely in this instance, but for left-leaning thought in general. Too many liberals have gotten so focused on certain issues and positions, on certain limited visions of what society should look like, that they completely ignore their approach, and focus solely on the accomplishment of those narrow visions. Economic boycotts and protests and bans and all of the other assorted methods—they are combative. While I cannot define liberalism for every liberal, I can say that, for myself, methodology is as important as result. And for me, a liberal methodology is one of discussion and discourse and reason. It is one of empirical fact and moral query, of engagement and a commitment to producing common good. It is not one of homogeneity; it is not one that predicates itself on bullying or coercion, no matter how hateful or disagreeable we find another’s speech. At its essence, it is an approach that divorces the economic from the political, that separates capital and modes of speech and participation. If liberals truly do not believe that money is speech, then we should not use it as such.

We can undoubtedly achieve some measure of a “liberal” society through these more coercive, economic means. If we organize our dollars well enough, we can silence those who disagree with us. We can starve them, so to speak, into accepting gay people, and prison reform, and greater investment in public education. We need to ask ourselves, however, if that is what we really want. I, for one, do not want to force someone to agree with me. I do not want to know that I live in a society in which the people around me cannot say how they really feel, for fear they will lose their business or their wage. If we are so correct in our thinking, we can argue for that thinking. We can debate and discuss. We can demonstrate peacefully. If we coerce, if we force the hands of others, especially with capital, we lose the things that make us lovers of democracy, liberal or conservative. We cannot claim that we fight for a principled vision if we abandon that very principle fighting for it.

That does not mean that protest is not a legitimate form of action. In fact, we do not do enough mass activism. We do not get out in the streets to protest enough. It does, however, mean that we need to consider how and why we are boycotting in the first place. Are we making a statement to try and pull people into the fold, to try and get their attention and change their position, to engage them? Do we protest for a cause, rather than against another? Or do we consider those across the picket from us our enemies? Would we rather see them go their own way than see them join us, and speak with us, and realize our shared commonality? There are certainly times when we cannot afford to forsake more combative measures. When the terms of engagement escape democratic contexts, when violence comes into play, when systems of power prevent equitable, fair discourse—these are the times when it is good to fight. But as long as our contexts are democratic, our actions must work towards dialogue and debate, rather than censorship. Our protestations and our objections must come through legitimate channels of speech like demonstrations and pamphlets and marches, not through economic threats veiled as such. I am sure that many believe that we are already past that point, that money has become so tied into our politics that we can only hope to act in economic terms. But I just cannot bring myself to accept that. If we acquiesce to this thinking right now, when we have so many other modes of action available to us, all we will do is help cement the role of capital in our political lives. We will simply reinforce the very system that we say we oppose.

Discourse is at democracy’s heart. I feel, in many ways, like a broken record in saying that. But it is true. The pursuit of liberal society is nothing but a shadow play if we achieve our goals through means that, divorced from their ends, we would deem worthy of condemnation and rejection. If we want substance, if we want unity, if we want respect in our relations to one another, if we want to walk down the street and have faith in the knowledge that we are united in some common purpose of democratic mission or process or love for one another, then we cannot silence those with whom we share a country. We must engage them; we must listen to them; we must convince them. To do anything else is submission to our basest desires for ease, for our own way, for blissful ignorance, even if we believe that we are already all knowing. I do not think we are that lazy. I think we care, and I think we want to try to build something good, and something common. I think we should do what it takes to show that. So we can boycott stores we disagree with, and say that it is just because the owners of the store are immoral. It does not take a liberal or a conservative to do that. We are not past the point of return. We can still have proper speech, divorced from economics. There is still time to develop a new ethic; there is still time to find a vocabulary that works for us. But we must, first, start at our values, at a definition of democratic, liberal means. If we do not think that money is speech, we should act like it. If we do not, we will find ourselves propagating the very systems and processes that say other otherwise.

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