Free expression is an incredibly important part of the edifice of liberty. Offensive or repugnant expression must be unambiguously tolerated. But “free speech absolutism” is a peculiar, and new, phenomenon that neither the common law nor the contextually understood principles of liberalism endorse.
Michael Morris and I sparred intellectually last year around the question of the limits around free expression. I would recommend reading that series of articles, some of the ideas of which appear here again.
Hitler-as-victim
I recently attended a three-day gathering of classical liberals and libertarians in Midrand. Two of the first lectures at this conference concerned some of the “basics” of liberty. The first addressed the question of harm and consent, and the second the question of free speech.
The second speaker – whom I shall not name because I am forced to repeat their arguments in summary form and do not wish to misrepresent them – ably defended their own preference for free speech absolutism. What they had to say comes down, in my view, to the following:
Individuals have agency. They might receive inputs, like speech or marketing by others, but they must and do ultimately decide for themselves whether to turn those inputs into action. Those who speak or market to these individuals, no matter how repugnant they might be, are not responsible for what the latter decide to do with the information.
In other words, if Person A tells Person B to kill Person C, Person A has simply exercised their freedom to express themselves and are not liable in any way for what Person B decides to do with the instruction. Person B can ignore Person A. The ball is entirely in Person B’s court, because Person A has not acted violently (the key liberal trigger for legal sanction) towards anyone. If Person B does decide to try to, and perhaps succeed in, killing Person C, the latter or their families may only hold Person B liable.
The first speaker eagerly endorsed the second speaker’s approach, and there is much validity in this conceptualisation. It is coherent and, on its face, satisfies liberal principle. It is however never a view that I have shared.
During the question-and-answer session, I posed the following hypothetical scenario to the speaker:
Imagine that there is an amateur painter from Austria with dreams of world domination. The painter, through power of charisma and populist appeal, rises to high government office. There, sitting behind a desk and never having conducted themselves violently towards anyone, they instruct subordinates to invade and conquer neighbouring countries and exterminate a notable portion of the civilian population.
The painter never participates directly in these violent scenarios – only expresses themselves around the planning and implementation.
Suppose, then, that the painter is after some time apprehended and arrested, or even killed, by those who oppose his expressions. In this scenario, would the apprehenders or neutralisers be guilty of violating the liberty of the amateur painter-turned-head of government?
To his credit, the speaker was able to bite the bullet and answer that yes, in fact, those sent to arrest or kill the amateur painter would be guilty of depriving the painter of their liberty.
I am not prepared to accept a socio-legal paradigm where it is those who hypothetically arrest or kill Adolf Hitler that are the guilty parties, with Hitler merely being a victim who was cancelled for his “offensive speech.”
Such a paradigm is so basically repugnant to every human sensibility and only justifiable in the extreme reaches of abstraction where the mind of no normal person ever reaches.
It should be obvious to everyone, and is obvious to most, that if anyone bore primary responsibility for the Holocaust and Nazi imperialism in Europe, it was Hitler and his top echelons of leadership, not the millions of German soldiers, sailors, and airmen who were following instructions. The latter were guilty of many crimes to be sure, but this all occurred downstream from Hitler and others’ decision-making.
Schemes of action
Expression cannot always be severed from action.
Sticks and stones may break my bones, but words will never hurt me is a very important lesson to continue to teach children.
But it is unwise, and simply false, to pretend that the principle is not complicated when Person A says, “I am going to take these sticks and stones to break your bones!” or tells Person B to “take these sticks and stones and break Person C’s bones!”
Something else, beyond mere speech, is going on here.
Person A is not merely expressing themselves. They are threatening or inciting violence against Person C. This turns their “mere speech” into a part of a scheme of action.
It is a bewildering proposition to tell Person C that they must wait until their bones have already been broken before they make take reciprocal steps against Persons A and B. This is a wild proposal to put to Person C, let alone to society.
Person C, upon learning of Person A’s design, must be (and in my view, is) allowed to take the directly or indirectly violent steps necessary to neutralise Person A and B. Certainly if Person C has already caused violent harm through threats or instruction, they are arrestable or even killable.
The common law recognises this principle, even if modern law is reluctant to see it through in light of political sensitivities. But while the law recognises that “the threat itself is the crime,” the proviso that the reasonable person must regard the threat as sincere is important.
Liberal principle also recognises the unworkability of free speech absolutism.
Liberalism emphasises the importance of defensive force. People are and must be allowed to defend themselves, their loved ones, and their property, from violence.
This we all seem to accept. But what does this mean?
Well, if we are to take the position of free speech absolutism on its face, no person may take any defensive action until the tangible, direct violent harm from their attacker has already manifested.
It is only after they have begun shooting at you that one may shoot back. (Even if their first shot killed you…)
It is only after the punch has landed on your nose that one may shove the assailant back.
It is only after the intercontinental ballistic missile has vaporised a city that the launch platform of the missile may be targeted and destroyed.
Before the shooting starts, before the punch lands, and before the missile hits, only ideas, propositions, and intentions have become manifest, but harm has not yet resulted.
This is not how liberalism’s political theory reacts to schemes of action involving violence, because it does not satisfy liberalism’s key demand of actually protecting liberty and property. If one must wait for one’s liberty or property to have already suffered violent harm – perhaps fatally – before one may respond, one does not truly have a right to defend oneself.
Threats and aggression
Of course, “harm” is not the standard of measurement here. Violence (aggression, coercion) and the threat thereof are.
Every day people say and do things with harmful consequences. A medical aid might deny a claim for healthcare coverage. A foreign spaza shop owner might outcompete their native peers. A gossip magazine might ruin the reputation of a prominent person. One might even yell “Fire!” in a crowded theatre.
These are all examples of “harm” – and harm is a perfectly natural, normal component of social life. I shudder at the thought of how a society would look if harm were to be completely eliminated.
But not one of these are examples of violence, or violent harm. Violent harm occurs when the liberty or property of another is non-consensually violated. Consent is key, which is why being fired from a job or having a medical aid claim denied cannot amount to “violence” as many on the left might claim it is, nor can yelling “Fire!” in a theatre whose owners allow such theatrics be regarded as violent. Volenti non fit iniuria.
And a sincere threat against the liberty or property of another ought to be – is, I submit – a mala in se (something criminal by its very nature), because it forms part of a scheme of action. Whether this scheme works out or not is perhaps a mitigating or aggravating factor at trial, but cannot extinguish the impermissibility of the threat per se.
Liberty is always under threat, whether by amateur painters from Austria or by red beret-wearing Teletubbies from South Africa. We should start taking it seriously enough to defend it even from those who “merely” threaten it. This is not a “liberty” (what a perverse thought!) that they have nor one we should recognise.
[Image: Michal Jarmoluk from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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