Friday, 21 April 2017

Can Speech Ever Really Be Free? Five Factors To Consider

Cartoon of man speaking on a soapbox by Wendy Cockcroft for On t'Internet
Some of my more idealistic fellow bloggers tend to think of free speech being a case of being allowed to say whatever you want, end of, with "counter-speech" on offer as an antidote to hate speech. In an ideal world this would work but in fact it does not. It's complicated. Allow me to explain.

There are five factors to consider where free speech is concerned:

  • Speech itself
  • Being heard
  • Provocative speech
  • Counter-speech
  • IPR and SLAPP

You can't have an honest conversation about freedom of speech without taking these factors into consideration. Ignoring any or all of them invites a shouting match in which both sides vie to be the most authoritarian with regard to what is permissable. Okay, let's dig in.

Speech itself

What we define as speech includes words both spoken and recorded on a variety of media. It also includes art and actions such as flag-burning. Religion (and anti-religion) are also included. Whenever anyone expresses a view by any means, this is considered to be speech.

Fake news

What about "fake news?" Yes indeed, that is speech; there's a debate on at the moment with regard to how to tackle it, but given that truth is currently in the eye of the beholder, I can't see the powers that be shutting Infowars or Breitbart down any time soon. This may be because they'd have to shut the Daily Mail down for the same reasons.

Legal and illegal speech

Whenever I write a post for On t'Internet it is speech. Whenever you share a cat picture on Twitter or Facebook that is speech. In theory, everybody has the right to freedom of speech and expression in Western countries until it causes a problem, i.e. you've recommended carrying out an illegal act. At that point, you've crossed the line and your speech is no longer protected. Fraudulent speech is illegal: if you're making speech to trick people into giving you money, you can go to prison for it. And over here in the UK racist speech can get you put in jail. I've been sailing close to the wind lately in my exploration of the trans issue because it's not as cut and dried as I'd thought it was but I don't think I'll get into trouble for the things I've written because I've not joined in the name-calling, I'm just questioning the blind acceptance and trendy luvvie bandwagon-jumping. I'm within tolerance, is what I'm saying, as a general rule, and it's the tolerance that needs to be discussed.

Natural rights

Natural rights is a problematic concept in and of itself. As I've demonstrated so far there is no true freedom of speech, it is limited everywhere to what the law allows — and what we can get away with. Only in the UK can you arrest a man for teaching his pug to do a Nazi salute to "Heil Hitler" while allowing newspapers to call judges "Enemies of the people" and to call for "Saboteurs" to be "crushed." Shouldn't laws about offending sensibilities apply to everyone, not just the public? In my opinion, free speech is desirable but it's not a natural right. Any rights we think we possess have ever-shifting boundaries and are held and maintained at a cost. It's naive to suggest otherwise.

Being heard

So it is that we arrive at being heard, which is no more a "natural right" than speech is. If speech is a natural right, then so is being heard, according to the trolls who litter the comments sections of every newspaper that allows them. It's the same on Twitter; where blocking is apparently the act of the special snowflake. Look, people, if we had a natural right to be heard, it'd be compulsory to let the KKK, etc., march into synagogues to troll the Jews. But it's not, is it? You do, however, get the Westboro Baptist hate freaks picketing funerals despite the phrase "God hates fags" not appearing in the Bible. Cigarettes don't figure in it either. Ah, you all know what I mean! The point is they can picket the funeral but nobody is obliged to allow them into the church or to gather by the graveside to harass the grieving families.

Freedom from _________.

On the other hand some people claim a right to freedom from hearing things they don't want to hear. They're so generous at heart they are willing to put their time and energy into protecting others from hearing undesirable speech whether they like it or not. Thus it is that right wing darling Ann Coulter is receiving support from right-on libertarian Robby Soave on the grounds that censorship is bad. What I'm more interested in is the protests and the no-platforming at Berkeley University, an alleged hotbed of liberalism. This is not an isolated incident, it's happening all over the place, even here in Britain. The funny part was the banning of a man who wanted to ban Muslim groups. Who has a right to be heard, and do we have a right to hear those who are considered to be makers of problematic speech?

Provocative speech

I'll open this section with a popular quote:

In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic." - Three Generations of a Hackneyed Apologia for Censorship Are Enough, by Ken White for Popehat

What people forget, argues Mr. White, is that the quote is taken from a man who was arguing in favour of suppressing the speech of dissenters protesting the draft in 1919. It's perfectly legal to shout "Fire" in a crowded theatre: context is everything. You might be an actor in a play. There might really be a fire. If you cause a panic, you might be prosecuted but per YoExpert unless you advocate committing a specific criminal act, anything goes.

Advocacy, even when it encourages law-breaking, helps the marketplace of ideas, ruled the Court. Had Brandenburg instructed followers to commit a specific crime, he’d have committed a number of offenses himself. But the First Amendment protects speech that merely advocates general, indefinite illegal action.

This is important: even the most provocative speech is permitted in America as long as you're only saying "Wendy Cockcroft should be dragged out and shot" rather than "Shoot Wendy Cockcroft on sight." Hold that thought. I've got some problematic issues to look at beyond no-platforming controversial speakers.

When coercive advocacy turns nasty

I've been observing a rise in incidents best described as speech to censor speech. I've been on the end of it. No-platforming campaigns are an example of this and coercive protest is a growing trend. You tend to find this kind of thing where provocative speech occurs or is likely to occur. Stop Funding Hate is one such example.

When flame wars explode into real life

A lawsuit on behalf of real estate agent Tanya Gersh is a prime example of this. Basically, she advised she would take part in a protest at a building owned by the mother of alt-right nutter Richard Spencer in order to persuade her to sell it and donate some of the proceeds to a local human rights group in order to prove her disavowal of Spencer's politics. Mrs. Spencer complained about it in a Medium post and the local neo-Nazi, Andrew Anglin, got involved. He doxxed Gersh and called on his "fam" to "hit 'em up," which they duly did, as horribly as possible. However, Anglin kept to the letter of the law in his advocacy:

The article encourages readers to "let these people know what you think!" It goes on to enjoin readers to call or send "a quick message," but not "make any threats of violence and certainly don't do anything violent."

That his readers went above and beyond this is arguably not Anglin's fault, it's theirs. That he knew this was likely to occur is another question altogether; I'd say he totally did. But is he responsible for other people's actions, however reprehensible they are? Okay, but what do we call it when he does the same thing over and over again, targeting this woman and calling for marches to the point where all her online speech is shut down? They totally censored her, but then she had tried to censor them. It's just that the neo-nazis had a bigger, better, more organised army than she did. This does not mean anything they did is okay; it's just that I also have a problem with her coercive tactics.


This is the go-to for all freedom of speech advocates: if you don't like the thing the mean man is saying, say something back to contradict and challenge him. Yeah, about that... in the Gersh V Anglin case you may have noticed that while Gersh has a garden hose, Anglin has a firehose and multiple appliances. Counter-speech advocates forget that it's a popularity contest and that if you're a small player anything you say gets lost in the noise. While it's true that your conduct is the biggest influence on your reputation, if some bully wants to make your life a misery by setting his dogs on you, you're stuffed if you lack the firepower (and the energy) to hit back as hard.

It's not really a solution

This is where the rubber hits the road:

Somewhere between grinning and bearing the abuse heaped upon you online and in real life because Many People Are Saying Things about you and getting items removed from the internet or making it illegal to Say Mean Things Online is a solution that's got to be better than hoping that the people responsible will experience some form of enlightenment and be kinder to others from now on. I'm not holding my breath but I do think that Something Must Be Done. I'm not sure what, but it's somewhere along the lines of setting up or supporting an effort to provide the counter-speech that targets who have little or no support require to even the odds that are stacked against them. - Perceptions And Perspectives: What Freedom Really Means, by Wendy Cockcroft for On t'Internet

Actually getting a discussion going about this is hard; what you end up with is people trebuchet-ing talking points at each other instead of having an honest discussion. Yes, censorship bad, but speech can be used to censor. What do we do about that without resorting to censorship? And why should anyone be obliged to take a barrage of abuse for daring to put their head above the parapet? For counter-speech to be a viable solution there has to be enough of it to get the job done. More often than not, that doesn't happen and the liberals and libertarians have no answer to that. Why not?


Intellectual property rights, or IPR, is increasingly being used to silence unwanted speech. One of the hotspots in this trend is the story of the Fearless Girl. Apparently it's an advert for the State Street Bank's woman-owned company fund but it's a great piece of art in and of itself. It's the placement that is problematic. I am absolutely loving the controversy over the juxtaposition of these items but the conversation that it's started is bubbling nicely away on a number of interesting levels, from IPR to the social angle.

Intellectual property rights

I've got problems accepting that intellectual property is even a thing even though it's embedded in the law of the land. The reason is this: you don't "Own it now on DVD." The minute you accept that an artist has rights over his or her creation after it has ostensibly been bought and paid for you're accepting that it's only really being leased; strings remain attached. It's the idea of having some control over an item after money has changed hands that is fueling an epidemic of rent and attention-seeking. The Wall Street Bull is but one example. The Trinity Root is another. In this case the artist is asserting his moral rights to the protection of his work:

VARA, or Visual Artist Rights Act 1990 allows for the protection of a work from any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honour or reputation. - filing attached to the article Artist Sues Church For Moving His 9/11 Memorial Sculpture by Mike Masnick for Techdirt

This is not a case of gagging someone as such, it's a case of someone being forced to accept the artist's expression against their will. The church wanted it moved, the artist wanted it to remain, the point being that the location itself is part and parcel of the work; it loses meaning when removed. While I can understand an artist wanting to protect the integrity of their creation I can't think of a good enough reason for him or her to continue to own the flippin' thing after it's been paid for. Don't be so damn precious. If you want to keep on owning it, tell the buyer it's a rental agreement. It's the same thing where the Wall Street Bull is concerned: the artist is annoyed that the energy and message of the charging bull is being subverted by the little girl in the ballet pumps with the attitude. He's actually suing over this despite the fact that he just dumped it in the street one day. He has no actual ownership rights over this thing, only "moral rights" which he's asserting because something something special snowflake. Okay, I'm biased: it's the subversion of the message that I'm enjoying about this. Juxtaposition as art: genius!


A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.[1] Such lawsuits have been made illegal in many jurisdictions on the grounds that they impede freedom of speech. - Wikipedia

Techdirt is on the receiving end of this: Shiva Ayyadurai is suing TD because the bloggers dared to state that he invented a program called email, not email itself. Gawker was destroyed because it posted content that embarrassed wealthy men, though it didn't do itself any favours in the way it went about it. Lawsuits to shout down — or shut down entities that annoy people are common and the threat of litigation is enough to force people to settle as the cost is so high. It can be very expensive to have an opinion.

Can speech ever really be free?

As I've pointed out there is no such thing as free speech; you can make speech within tolerance of social norms but once you stray outside of those, you're in trouble. You can have opinions as long as they don't attract the wrong kind of attention. And you need to be aware that if you attempt to suppress the opinions of one group of people on the grounds that they're obnoxious, your efforts might well backfire spectacularly.

Can speech ever really be free? That depends on how tolerant we're willing to be. In a politically polarised world where special snow-flake-ery and coercive correction are the norm, good luck with that.


  1. Wendy, I am giving you more consideration than you ever gave me after the trial. I do not crave attention. I hated it and still do. The threats, the defamation, the references to me as a c%#^, the recent attempt to spook me. Sometimes it os so bad I literally break out in hives, for example recently and the threats to hurt me and my dog.

    I liked my life but through a set of circumstances I ended up on Ripoff Report. I fought because they & Google profit from destroying lives.

    I hate to think that anyone would be forced to endure what Michael Roberts & I have been through over the past few years. Ripoff Report is not about free speech, it is profiting from an abuse of power.

    You can delete this but please watch the video I tweeted and make up your own mind. Despite what you believe I seriously don't want to see anyone hurt. Meade is a paid writer for Magedson. He made that video himself to extort more money out of RoR.

    Recently Meade had been accusing Michael's wife of criminal activities in Iowa. She passed away from cancer ladt year. If you look at Meade's tweet history it includes accusations that Heidi Forbaska Roberts was poisoned by Michael. That is s low act.

    I am taking the trouble to write this because I don't want to see you hurt. Meade sucks people in and blackmails them with RoR reports. Yes, he hates me and Michael as do you. The difference is that we stood up to an extortion racket and it has decimated our lives. Meade is part of it. It is too late for me. My life will never go back to what it was. But you REALLY don't want to get caught up in it all. Watch the video and please, whatever you think of me, don't get involved with Meade & Magedson.

  2. I don't hate anyone, I have no agenda, and I'm not taking sides in what appears to be a flame war between you and Meade. I've told him to stop lashing out at you online lest he lose credibility but he doesn't heed me. Making wild allegations against others without proof makes one look like a kook. I've got no time for it. Prove it or shut up — both of you. That video is really vague, BTW.

    I've got nothing against you, Janice, you did no real harm to me. As for free speech, I wrestle with it because it's not a simple black-and-white issue. I'll be writing more about it as more issues arise because it fascinates me.

    ROR blackmail (if there is such a thing) only works if you take that toilet wall of a site seriously. Nobody with a brain does; it accepts troll posts as gospel. How then can it possibly promise accurate reports? It can't because it won't. I posted my rebuttals and that is sufficient. Every other search result is positive because I make sure I behave in a manner consistent with the image I wish to project. I'm a bit of a smartalec; that's how I roll. But at least I'm smart.

    When I posted generalised advice referencing your Google story you flipped out and slagged me off. I complained about the slagging here and used your post as proof I was being trolled. That is how one "pulls rank" on legitimate review sites. That is why they took the posts down: criminal offenses are reported to the police, not to review sites.

    I'm sorry for your troubles (especially for the stress-related health issues. I've got nervous stomach so I can relate) but you did most of that yourself by lashing out instead of walking away from each of those situations. It's precisely this tendency to flip out that has resulted in you being trolled. That's not okay. I know it's distressing but lashing out feeds them. Don't. They bait you because they know you'll entertain them if they do. I learned this in the playground: keep calm and quiet. They'll eventually go away if you don't entertain them. I've been trolled. We both have. It's not kind but some people are just nasty that way.

    If you are willing to heed me at all do what I do: act according to the image you want others to have of you. Then the trolling — and the hives — will go away. I wish you well, Janice, whether you are willing to believe that or not. Disagreeing with you and criticising attitudes and behaviour doesn't make me an enemy, okay?