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Category Archives: Freedom of Speech
Assault on rights to free speech, dissent: 99 ex-IAS, IPS, IFS officers say in open letter – ThePrint
Posted: July 5, 2020 at 10:48 am
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New Delhi:A group of former civil servants, including prominent former IAS officers such as Aruna Roy and Wajahat Habibullah, have penned an open letter expressing concern over the growing assault on the Rule of Law in India and on its citizens rights to free speech and dissent.
In a letter titled Assault on the Rule of Law and Article 19 of the Constitution of India, 99 civil servants lamented the erosion of the rule of law in the country and urged all Indians to unite in defence of the rule of law and Article 19 the Right to Freedom of Speech, which they said are basic elements of any democracy.
The collective known as the Constitutional Conduct Group, is known for voicing concerns regarding socio-political developments in the country and includes several prominent ex-IAS, IPS and IFS officers.
Prominent IAS officers who are part of the group include Aruna Roy, P.S.S. Thomas, Vijaya Latha Reddy, Meena Gupta and Wajahat Habibullah.
Some of the well-known Indian Foreign Services officers in the group include Shivshankar Menon, Madhu Bhaduri, Deb Mukharji and Shiv Shankar Mukherjee. A.S. Dulat, Amitabh Mathur, Aloke B. Lal are some of the Indian Police Services officers who are signatories to the letter.
Also read: Indian citizens and media have been terrorised enough with sedition. SC must end it now
The letter talked about the blatant use of the sedition law and how the rule of law militates against the actualization of the freedom of speech.
It cited the arrest of 11 activists, including Kafeel Khan, Safoora Zargar, Akhil Gogoi, Sharjeel Imam, and the murder of Karnataka-based journalist Gauri Lankesh to highlight the corrosion of Article 19 under the government.
The letter added that the government cannot use the current pandemic as an excuse to curb media freedom across the country.
According to the letter, the law of sedition, which it terms a colonial relic, has seen a sharp increase in use. The letter alleges that any criticism of the government is considered anti-national and invites punitive wrath.
The former civil servants also blamed the government for attempting to clamp down on the media and note Indias fall in the Press Freedom Index of Reporters Without Borders.
India ranked 142nd out of 180 countries covered in 2020. In 2019, it was ranked 140.
The letter alleged that the government has used the pandemic as a means to silence the media, giving examples of 55 journalists who were singled out for writing about mishandling of the crisis, and the criminal case against Siddharth Varadarajan, the founding editor of TheWire, for writing against Uttar Pradesh Chief Minister Yogi Adityanath.
Also read: After SC, how Tripura High Court added muscle to freedom of speech & expression
The signatories of the letter also argued that the gulf between the rhetoric and reality in the rule of law is widening.
They mention the government-imposed curfew in Kashmir and the use of the stringent Unlawful Activities Prevention Act (UAPA) against people who participated in the protests against the Citizenship Amendment Act and the National Register of Citizens.
The letter further alleged that the police establishment has become a proxy at the hands of the political party in power.
According to the letter, the arrest of activists such as Sudha Bharadwaj, Shoma Sen, Gautam Navlakha and Anand Teltumbde under the UAPA is choking their freedom of expression.
Commenting on the Northeast Delhi riots, the letter noted, The investigations into the riots in north-east Delhi have betrayed an institutional bias against the minority community.
This was in reference to Dr M.A. Anwar, the proprietor of Hind Hospital, being mentioned in a chargesheet by the Delhi Police.
Dr Anwar had reportedly provided crucial medical services to the victims of the Delhi riots.
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Posted: at 10:48 am
Since October last year, Lebanons police and security forces have investigated or detained more than 100 civil rights activists in what Human Rights Watch (HRW) has termed a spate of free speech prosecutions. The spike in cases has coincided with the rise of a nationwide protest movement that has expressed popular anger at decades of political and economic mismanagement.
In eight months of protests, the people of Lebanon have spoken out increasingly and openly on social media and at street demonstrations against members of the establishment who are considered widely to be the cause of the countrys multiple crises. Activists and rights groups, however, have raised concerns that the rising number of investigations into comments made and actions taken by protesters is a sign that Lebanons vague defamation laws are being used to intimidate and silence critics. Freedom of expression, they say, is definitely under threat.
The problem is the interpretation of the law, explains Ayman Mhanna, the Executive Director of media freedom watchdog the Samir Kassir Foundation. The same articles can be interpreted in a very liberal and open way and also in a very restrictive and oppressive way. This, unfortunately, is the current situation.
Words such as defamation, libel and slander, he notes, or charges of inciting sectarian strife or endangering civil peace, have elastic interpretations that can change depending on the judge.
Lebanon: Judge who ordered media ban on US envoy resigns
According to Gino Raidy a prominent activist with over 100,000 followers on Twitter and Instagram, politicians are exploiting the vagueness of Lebanons defamation laws to target high-profile activists in order to deter would-be critics from speaking out. Politicians choose the people with the most reach to target repeatedly. People like me, Dima Sadek, Charbel Khoury; people with a large following on social media. They keep calling in the people who are really visible.
The high-profile activist has been investigated three times since the start of protests on 17 October. Each lawsuit, Raidy points out, has been instigated by a prominent politician, including one by Prime Minister Hassan Diab at the height of the coronavirus lockdown. However, none of the cases has led to Raidys arrest, nor has the activist ended up in court.
Instead, he says, the investigations are often intended to intimidate, waste time and attract media attention. In the most recent investigation, he waited six hours for the claimants lawyer to turn up and provide a statement before he was released. Its just bureaucratic shenanigans. In the last one the claimants lawyer was six hours late, on purpose. He made us wait for him so that it looked like I had been arrested, when I hadnt. When he eventually arrived, he gave a statement and I was, of course, released.
Lebanon: Interior Minister admits killing 2 during civil war
However, says Raidy, being investigated can be a scary and traumatic experience for young protesters, especially because activists are often not told why they are being summoned, nor are they always allowed to have a lawyer present during questioning. Other cases documented by HRW show that some activists were pressured to sign a commitment to refrain from criticising a particular political party or individual. These are tactics, he claims, which investigators use to exert pressure on and intimidate critics.
Another activist, Taymour Jreissati, agrees and describes the spike in investigations as scare tactics. Simply summoning critics for questioning on nonsense allegations is a form of intimidation in itself and a threat to freedom of expression. The 33-year-old was summoned for investigation after he and a group of activists confronted former Minister of the Environment Fadi Jreissati publicly outside a restaurant in Beirut.
Jreissati the activist told me that the entire encounter was caught on camera and that the pair spoke cordially because he is related to the former minister through his father. Nevertheless, he was still summoned for questioning over the incident.
[Politicians] basically bank on the idea that if they get us in for questioning and waste our time, we will back down. They think that the next time we see them in public we will not confront them because we are afraid of being called in for questioning again.
Lebanon: Activist detained, accused of ties with Israel
Taymour Jreissati claims that the allegations against him were baseless and taking him in for questioning was a tactic designed to pressure him into silence. Asked why lawsuits against protesters and activists, such as the case against Jreissati, get filed and investigated but rarely go to court, a spokesperson for the Embassy of Lebanon in London said that, The Government is determined to uphold freedom of expression and right to protest, while at the same time maintaining law and order.
The spokesperson provided no further details on the increasing prevalence of similar cases but cited the preamble and Article 13 of Lebanons Constitution, which guarantees, within the scope of the law, freedom of speech and expression.
Nevertheless, Mhanna believes that the law needs to be updated. He told me that a draft law submitted to parliament 10 years ago has been completely transformed into a repressive text by parliamentary committees without ever being presented for a general vote.
Politicians have increasingly relied on freedom of expression investigations as one of the last tools available to silence critics, he adds. However, with mounting public pressure over the rapidly worsening economic crisis and the apparent deadlock in talks with the International Monetary Fund, he has little hope of any meaningful reform on the horizon.
Lebanon: Security forces arrest 11 over riots, vandalism
See original here:
Freedom of expression is under threat in Lebanon - Middle East Monitor
Posted: May 24, 2020 at 2:55 pm
n the last few weeks a spate of American stores have made headlines after putting up signs telling customers who wear masks they will be denied entry. On Thursday, Vice reported on a Kentucky convenience store that put up a sign reading: NO Face Masks allowed in store. Lower your mask or go somewhere else. Stop listening to [Kentucky governor Andy] Beshear, hes a dumbass.
Another sign was posted by a Californian construction store earlier this month encouraging hugs but not masks. In Illinois, a gas station employee who put up a similar sign has since defended herself, arguing that mask-wearing made it hard to differentiate between adults and children when selling booze and cigarettes.
Meanwhile, Donald Trump finally caved and wore a face mask yesterday something he didnt want to give the press the pleasure of seeing. But while it is gratifying to see the emperor finally forced to wear clothes, youve got to wonder to what extent the virus will spread thanks to the actions of citizens insisting on protecting their freedom over the right of others not to get sick.
Anti-lockdown protesters have argued that it is anti-American for the government to curtail peoples freedoms in order to reduce deaths as a result of Covid-19. Meanwhile, store owners tell customers what they can and cannot wear before entering, and customers cough in the faces of workers in the name of freedom.
I work for Costco and I am asking this customer to put on a mask because that is company policy, says a Costco employee in one video. And Im not doing it because I woke up in a free country, replies the man filming him.
A warped freedom obsession is killing us, said the writer Anand Giridharadas, in reference to those coughing in the faces of others in the name of freedom. It is, of course, a minority of people willfully misinterpreting what freedom means freedom to choose, until the choice is one that they do not like; meanwhile, most Americans dont want to return to business as usual during this pandemic.
In Franklin D Roosevelts famous 1941 Four Freedoms speech, he detailed that, yes, Americans are owed a right to freedom of speech and expression and to worship whom they please but he also mentioned the freedom from fear. This was in the context of the US joining forces with Britain in the second world war; Roosevelt was telling Americans that this was a fight for freedom. As America finds itself at war with a deadly pandemic, thats a message worth considering.
Originally posted here:
No masks allowed: stores turn customers away in US culture war - The Guardian
Posted: at 2:55 pm
May 22 (UPI) -- With scientists striving for a viable coronavirus vaccine, and public health officials considering its potential roll-out, do calls for freedom of choice and anti-vaccination sentiments, as seen in recent televised protests, represent a worrying omen?
Choice is central to American life, with freedom of speech and of opinion embedded in the U.S. Constitution. But at what point does a communal necessity, such as immunization, outweigh personal choice? How much choice do people in self-acclaimed free societies really have? Choice to murder a troublesome neighbor, or drive through a red light? Of course not. Choosing to avoid taxes or decline a vaccine may be considered acceptable by some, but are arguably a moral failure to contribute to the public good.
Herd immunity through vaccination generally requires 75-95 percent public participation, with more contagious diseases typically requiring higher uptakes. This majority who chooses immunization protects their whole community, including those who cannot be vaccinated for medical reasons.
The United States chooses to persuade public uptake, rather than legislate for it. There is no federal law mandating immunization. Although viruses don't respect state lines, individual states determine their own vaccination requirements for specific groups, such as children, healthcare workers and residents in healthcare facilities, but there is little regulatory provision for the rest of the adult population, with limited public infrastructure for the mass vaccination of adults.
All 50 U.S. states accept exemption from vaccination for medical reasons, because the immuno-suppressed or allergic have no choice; 45 states, plus Washington, D.C., grant school vaccination exemptions for religious reasons, and 15 states allow exemptions for personal or philosophical reasons.
Immunization resistance is complex. Concerns over the safety of vaccines may be understandable, but cases of negative reactions are few, and are vastly overwhelmed by the unquestionable benefits. Unsubstantiated anecdotes attributing other acquired ailments to vaccinations are commonplace. Many express hesitancy about some vaccines but not others, and doubts don't necessarily lead to refusal.
The choice to reject immunization seems mostly predicated on questionable notions : a mistrust of science, discredited work in vaccinology, suspicion of government, flawed anecdotes, the notion of 'individual self-management' and even conspiracy theories about people associated with vaccine research, such as Bill Gates.
Even before the coronavirus pandemic, the U.S. Public Health Service and others considered a lack of accurate information about vaccines and disparities in access to immunization to be significant public health concerns. When only a small minority refuse immunization, self-exemption is politically tolerable provided the general uptake meets the percentage necessary for herd immunity.
Unfortunately, data tell us that the ease of securing personal belief exemptions has contributed to a decrease in vaccination protection among schoolchildren. With adults, an insufficient uptake of vaccines has led to an estimated annual death toll of 40,000 from vaccine-preventable diseases. In 2017, the Centers for Disease Control and Prevention reported that immunization coverage among U.S. adults was low, despite an annually updated and recommended U.S. Adult Immunization Schedule.
In 2019, the World Health Organization ranked vaccine hesitancy as one of the top 10 threats to global health. All these factors suggest that the current socio-political trajectory in the United States does not bode well for a potential coronavirus immunization program. Of course, there is no guarantee that a COVID-19 vaccine will be produced, but if it is, the population should expect a vaccination campaign. Any immunization initiative will need to tackle vaccine hesitancy head-on, as well as consolidate the fragmented regulatory infrastructure.
Some warn that compulsory vaccination is likely to inflame public sentiment and lead to legal battles on the constitutionality of non-medical exemptions, so more nuanced policy tools, such as increasing the difficulty in obtaining non-medical exemptions and stricter oversight of exemptions, may be effective. There is a general perception that the delivery of a coronavirus vaccine will mark the end of COVID-19, and will be resoundingly celebrated, but will this be enough to garner mass compliance coast to coast, especially for a new vaccine without years of demonstrable public efficacy?
Educational programs that convey the historical benefits of vaccinations, and that present the rigors of modern vaccine development, may correct misconceptions, tackle unwarranted mistrust and lead many skeptics to choose vaccination voluntarily. In parallel with public information initiatives, a logistical infrastructure must be established to deliver the vaccine effectively nationwide. Such information initiatives and infrastructure investments will require sufficient funding to reach the whole population. It's a huge ask, especially in a fractured U.S. healthcare system, but the cost of being ill-prepared is likely to be way worse.
The fact that some states are collaborating with their neighbors for a more consistent pandemic response helps advance the notion of a nationally coordinated campaign for vaccination. Federal leadership and effective persuasion will be imperative, but whatever happens, legislative intervention for vaccination uptake may be necessary, because sometimes choice kills.
Alina Palimaru is an associate policy researcher at the nonprofit, nonpartisan RAND Corp. Marcus Dillistone is member of the Royal Society of Medicine.
Protesters rally urging the reopening of California at the Capitol in Sacramento on May 1. Photo by Terry Schmitt/UPI | License Photo
Thousands showed up to urge an end to "shelter in place" because of coronavirus, social distancing, closure of non-essential businesses and to campaign for President Donald Trump in Sacramento. Photo by Terry Schmitt/UPI | License Photo
California Highway Patrol officers tussle with demonstrators at the Capitol in Sacramento. Photo by Terry Schmitt/UPI | License Photo
A demonstrator wears an American flag bandanna. Photo by Terry Schmitt/UPI | License Photo
A child holds a sign at Sacramento's demonstration. Photo by Terry Schmitt/UPI | License Photo
Demonstrators rally in Sacramento. Photo by Terry Schmitt/UPI | License Photo
A demonstrator holds American flags during the protest. Photo by Terry Schmitt/UPI | License Photo
Demonstrators for opening the state up visit the Capitol in Sacramento. Photo by Terry Schmitt/UPI | License Photo
Protesters rally against Ohio's restrictions on public gatherings ahead of Gov. Mike DeWine's press briefing on Friday. Photo by Aaron Josefczyk/UPI | License Photo
Some protesters carried flags, signs and guns while encouraging the reopening of the state. Photo by Aaron Josefczyk/UPI | License Photo
Protesters have been gathering for more than three weeks against the stay-at-home orders. Photo by Aaron Josefczyk/UPI | License Photo
A protester stands on the side of a street to demonstrate. Photo by Aaron Josefczyk/UPI | License Photo
Some demonstrators say they are voicing frustrations of small business owners forced to close due to the restrictions. Photo by Aaron Josefczyk/UPI | License Photo
A protester holds a sign reading "without freedom, there is no safety." Photo by Aaron Josefczyk/UPI | License Photo
DeWine said the protests were permitted under his executive order due to First Amendment protections for free speech. Photo by Aaron Josefczyk/UPI | License Photo
Protesters changed, "Reopen Ohio." Photo by Aaron Josefczyk/UPI | License Photo
DeWine stated he respects the protesters' right to gather but urged them to keep a safe distance from each other. Photo by Aaron Josefczyk/UPI | License Photo
Protesters said their constitutional rights are being violated by the orders. Photo by Aaron Josefczyk/UPI | License Photo
A protester stands on the side of a street to demonstrate against Ohio's restrictions. Photo by Aaron Josefczyk/UPI | License Photo
The governor said that the state has "reached a new stage," but "it doesnt mean the virus has gone away." Photo by Aaron Josefczyk/UPI | License Photo
In Washington, D.C. on Friday, activists participate in a car rally for workers' rights during the pandemic near the National Mall. The group ShutdownDC supports front-line workers, asking the district to stay "closed" and not rush to open. Photo by Kevin Dietsch/UPI | License Photo
An activist decorates ar car prior to the protest. Photo by Kevin Dietsch/UPI | License Photo
The group ShutdownDC supports front-line workers, asking the district to stay "closed" and not rush to open. Photo by Kevin Dietsch/UPI | License Photo
Truckers park their cabs on Constitution Avenue, near the White House, as they hold a protest over low rates amid the pandemic. Photo by Kevin Dietsch/UPI | License Photo
In New York, a protester puts up her middle finger at police officers at a "Rally To Free New York." Photo by John Angelillo/UPI | License Photo
A protester argues with NYPD officers. Photo by John Angelillo/UPI | License Photo
The rally was also planned to take place in other New York cities on Friday. Photo by John Angelillo/UPI | License Photo
A man wears a protective face mask at the rally. Photo by John Angelillo/UPI | License Photo
Protesters were encouraged to wear red, white and blue -- and to maintain social distancing. Photo by John Angelillo/UPI | License Photo
New York officials said some streets will be reopened on Monday, though schools will be closed for the remainder of the year. Photo by John Angelillo/UPI | License Photo
Posted: at 2:55 pm
MAY 22, 2020
FOR EVERY ACTION, there is an equal and opposite reaction. Newtons Third Law deals with physical objects, but does it also have something to teach us about human behavior and the clash of forces in our fraught and turbulent society?
When it comes to the volatile issues of race, sex, identity, privilege, rights, and freedom, well-intentioned actions to redress genuine injuries can conflict with equally important societal values, such as freedom of speech and the open exchange of ideas. Are there unintended and adverse consequences that flow from the energetic vindication of cherished rights in our society? Consequences that have been ignored and deserve serious examination? Is there still any legitimate place for dissent and disagreement on these fundamental issues?
In The Tyranny of Virtue: Identity, the Academy, and the Hunt for Political Heresies, Robert Boyers, professor of English at Skidmore College, author of 10 books, and editor of the literary journal Salmagundi, is alarmed by the irrationality and anti-intellectuality on college campuses and in the wider cultural environment that was unleashed by many of the most vocal proponents of the new fundamentalism to silence or intimidate opponents. He is deeply concerned that
concepts with some genuine merit like privilege, appropriation, and even microaggression were very rapidly weaponized, and well-intentional discussions of identity, inequality, and disability became the leading edge of new efforts to label and separate the saved and the damned, the woke and the benighted, the victim and the oppressor.
He regrets that people who are with you on most things on the obligation to move the world as it is closer to the world as it should be are increasingly suspicious of dissent.
Boyers is asking whether in our zeal to address the consequences of racism, misogyny, sexual violence, bigotry, and intolerance in America, are we spreading a new intolerance, undermining cherished values of free and open discussion? The Tyranny of Virtue prompts serious readers to take a second look at their own assumptions as we try to navigate the troubles waters on which we so often feel adrift.
The force of Boyerss book comes from the proximity of his own university experiences to the issues he is confronting, the grounding he provides with relevant examples to illustrate his arguments, and his bracing writing style which consistently expresses difficult ideas in crisp and succinct language.
As Boyers sees it, tendencies that alarmed him and others on the liberal left 25 or 30 years ago have grown more disturbing.
Intolerance among young people and their academic sponsors in the university is more entrenched than it was before, and both administrators and a large proportion of the liberal professoriate are running scared, fearful that they will be accused of thought crimes if they speak out against even the most obvious abuses and absurdities.
Boyers offers a startling example.
An Ivy League college senior in Boyerss July 2018 New York State Summer Writers Institute a young white man told Boyers he was denounced in a seminar by several other students for writing poems based on his experience as a volunteer in Bryan Stevensons Equal Justice Initiative in Alabama. How dare he write poems about lynching and the travails of oppressed people when it was obvious that he has no legitimate claim to that material? Boyers sarcastically asks, echoing the all-too-sincere accusations leveled at the student. Was it not obvious, Boyers continues, that a privileged white male, who could afford to take off a year of college to work as a volunteer, really had no access to the suffering of the people he hoped to study and evoke?
Boyers expands this example beyond the college setting by recounting another controversy that unfolded in July 2018, when objections (which Boyers calls predictably nasty and belligerent) were lodged against The Nation magazine for publishing a short poem by a young white poet in which he used black vernacular language. Within a few days the poetry editors who had reviewed and approved the poem issued what Nation columnist Katha Pollitt called a craven apology that read like a letter from a re-education camp. In The Atlantic, the scholar of black English John McWhorter called the language in the poem true and ordinary black speech and a spot-on depiction of the dialect in use. He also noted the irony that, at a time when whites are encouraged to understand  the black experience, white artists who seek to empathize  as artists are told to cease and desist.
Boyers is angry about what he sees going on in the institutions of higher learning to which he has devoted his lifes work as well as in the society at large about which he cares deeply.
The revolution of moral concern, driven by people in the grip of delusions I have attempted to anatomize throughout this book, is clearly a bizarre phenomenon, fueled by convictions and passions that have the appearance of benevolence but are increasingly harnessed to create a surveillance culture in which strict adherence to irrational codes and principles is demanded.
He sees a toxic environment that now permeates the liberal academy that is increasingly drawn to denial and overt repression including speech codes and draconian punishments for verbal indecorum or presumption.
Unfortunately, Boyerss anger can get the best of him as he ascribes ugly motivations to the targets of his denunciation. It is decidedly not true that academics mobilizing to punish dissident or incorrect voices on their own campuses are nevertheless operating with benevolent motives, he defiantly declares. And it is not true than an ostensibly well-intentioned effort to prevent a young white poet from imagining the lives of black people is an expression of genuine concern for black people. Why does Boyers assume the motives of those concerned about cultural appropriation are not benevolent or genuine? For someone so dedicated to freedom of speech and open debate, why not address the merits of the arguments in these controversies without making groundless assumptions and attacking the motivations of those with whom he disagrees? Isnt giving others the benefit of the doubt one of the liberal values Boyers is seeking to encourage on our campuses and in society at large?
Boyers is eager for his readers to get to know him so they dont take him as just another conservative critic like Dinesh DSouza or Tucker Carlson, who do not share his lifelong commitment to equality and justice. To that end he describes an encounter with an English professor during his freshman year at Queens College in the late 1950s. Having given Boyers an A+ on a paper examining George Orwells Homage to Catalonia, Professor Stone suggests that Boyers schedule an appointment to see him in his office.
When Boyers arrives, unexpectedly a second professor is present. Professor Stone asks Boyers to summarize his paper on Orwell. After Boyers offers only a few sentences, Professor Stone asks him to stop and turns to his colleague. See what I mean? Totally, the other professor responds. Turning back to Boyers, Professor Stone guesses, [Y]ou may be the first person in your family to go to college. Its true, replies Boyers. You write very well, Professor Stone says,
But you know, I didnt call you here to congratulate you, but to tell you something you need to hear[.]  [T]hough you are a bright and gifted young fellow, your speech, I mean the sounds you make when you speak, are such that no one will ever take you seriously I repeat, no one will ever take you seriously if you dont at once do something about this. Do you understand me?
Boyers agrees to enroll in a remedial speech course to cure what Professor Stone calls his Brooklynese. Within hours of his escape he realizes this was a never-to-be-forgotten gift. It was an insult to be sure, but delivered not with an intention to hurt but to save and uplift.
Boyers uses this formative incident in his life to introduce his discussion of white privilege. He clearly understands that white privilege exists. It is legitimate, he writes, to assert that whiteness has long been an advantage, however little some white people believe that their own whiteness has given them what others lack. He provides numerous examples:
[T]hat housing laws designed to help returning GIs discriminated against black veterans; that college admissions boards, even where inclined to diversify their student bodies, continue to rely on protocols that would ensure acceptance mainly for the wealthy or the otherwise privileged; that apparently trivial slights or insults might conceivably affect people in disastrous ways, while allowing those responsible for the insults to proceed as if nothing consequential had transpired.
And he quotes poet Claudia Rankine who argues that whiteness has veiled from them their own power to wound.
But Boyers goes deeper, in order to challenge what he sees as an absolutist assumption that white privilege is enjoyed by everyone who is white. Is it reasonable to suppose, he asks, that whiteness confers, on all who claim it, comparable experiences and privileges? Alluding to his embarrassing confrontation with Professor Stone, Boyers asks, Was my own background as a working-class Jewish boy, growing up in a predominantly black community, remotely similar to the background or disposition of a white colleague who had never know privation, or in fact had no contact at all with other black children?
Boyers offers some eye-opening examples. Two years ago, at a panel discussion at a writers institute, a graduate student complained that the entire topic of political fiction was dominated by male writers. When Boyers responded by referring to prominent women who write political fiction, such as Doris Lessing, Nadine Gordimer, Joyce Carol Oates, Ingeborg Bachmann, Pat Barker, Antia Desai, and others, another graduate student asked him if he was aware of the privilege he had just exercised in addressing the question. Privilege? he asked. Your authority, she said, your presumption, the sense of entitlement that permits you to feel that you can pronounce on any question put to you. As Boyers sees it, privilege had been invoked as a noise word intended to distract all of us from the substance of our discussion and from the somehow unpleasant spectacle of a male writer intoning the names of great women writers, as if this were, in itself, a flagrant violation of a protocol.
Then Boyers reports on an incident at Evergreen State in which a professor of biology (who subsequently resigned from the faculty) criticized the universitys Day of Absence, a day on which all white students were asked to leave campus. And the Northwestern professor who was subjected to a formal Title IX investigation by university authorities after an essay she wrote for the Chronicle of Higher Education was said by a number of students to create a hostile environment on campus. Boyers comments that in
the last year or two, those wishing to restrain real talk or, God forbid, actual debate more and more deploy terms like entitlement and subordination to suggest that people who stir the waters inevitably create a hostile environment and intimidate their colleagues, some of whom so it is said are thereby made to feel powerless.
Boyers enlists prominent New York Times columnist Nicholas Kristof, who in a recent article argued that many liberals want to be inclusive of people who dont look like us so long as they think like us. Boyers writes that [o]n campuses across the country, according to Kristof, academics casually admit that they would discriminate in hiring decisions based on the ideological views of a job applicant.
Boyers sees the accusation of privilege as being increasingly hauled in as a weapon, though wielded, in the main, by persons attached still to the conviction that, whatever their own bristling incivility and the punishing quietus they clearly intend to deliver, they remain in full possession of their virtue. He argues that the privilege craze is part of a new fundamentalism built on a willful refusal to accept that the most obvious features of so-called identity are the least reliable indicators of what may reasonably be expected of us.
But here again Boyers overreacts. So-called identity? Are not those who have been subjected to discrimination and been the brunt of bigotry on the basis of their race or gender or sexual orientation entitled to organize and speak up on the basis of those real, not so-called, identities? Although Boyers is sounding a much-needed warning over self-righteous accusations of privilege which can smother honest discussions of race, gender, and class, he again betrays his own blind spots. He belittles unnamed partisans of the privilege critique of garden-variety envy. Thats a particularly cruel epithet to hurl at individuals and groups who are seeking to reverse the impact of centuries of enslavement and present-day discrimination. Accusing them of envy for simply seeking equality smacks of the argument during the battle for marriage equality that the LGBTQ community was seeking special rights.
Boyers accuses these partisans without evidence or example of having little interest in real-world politics, that is, in coalition building and respect for difference. Really? The movements for equality in society today are all about real-world politics, including voting rights, racial justice, immigration, equal pay for equal work, mass incarceration, and the entire panoply of rights which have been denied to marginalized people for so long.
But let me practice what I preach and give Boyers the benefit of the doubt, for elsewhere in his book he exhibits a far more subtle and nuanced approach to his subject. The following passage, listing the purposes of his book, is worth quoting in full:
To argue that the idea of privilege has its important uses and is, at the same time, susceptible to misunderstanding and abuse. To demonstrate that the idea of appropriation was an understandable expression of legitimate and deep-seated fears held by people with a history of oppression and subordination, but that the idea soon came to be wielded by people ignorant of the ways of the imagination and the benefits of the very practices they resisted. To argue that identity is an important aspect of our ongoing efforts to understand ourselves, but that identity politics is based on a deep misunderstanding of the nature of race and ethnicity. To insist that policies like affirmative action are essential if we are ever to achieve the kind of social justice we aspire to but that there are costs and consequences we ought to acknowledge without pretending that those costs are negligible or incidental.
Boyers fears that the excesses of these movements for social change will prove counterproductive, descending into a self-righteous close-minded orthodoxy that will alienate potential supporters and feed the criticism spread by reactionary forces which take every opportunity to ridicule and parody the movements for equality and justice. To challenge officially accredited views, particularly when those views have anything to do with sensitive issues, is now regarded as out of bounds, illegitimate, an expression of arrogance or entitlement, and thereby hostile.
In addition to privilege, identity, and appropriation, Boyers devotes a chapter to ableism and how our society deals with disabilities. He begins by describing how recently he became agitated seeing posters saying KEEP SKIDMORE SAFE hung all over Skidmore College, where he has been teaching for 50 years. According to Boyers, the posters called out examples of ableist language considered offensive to persons with disabilities and their supporters, language such as stand up for, turn a blind eye to, and take a walk in someones shoes. The posters encouraged students to ask their teachers to stop using such ableist language and, failing that, to contact advisers and file an online bias report naming the professor.
Boyers doesnt tell us what became of this call to action or whether any bias reports were ever filed and, if so, what happened, but he nevertheless is quick to attack the posters, arguing that expressions like those cited in the poster have nothing at all to do with any reasonable persons notion of keeping the campus safe. He calls the recommendation that people take offense at the language all of us use is sufficiently bizarre. Boyers notes that of course it goes without saying that everyone should speak respectfully to persons who are disabled. But according to him the notion that students will feel unsafe when I tell them I have to run to catch a train or that Ive long been deaf to certain kinds of music is a lie. He claims that students can be trained to take offense where no offense is intended. But there will be a price to pay, he writes, for creating a generation of young people who are unwilling and unable to differentiate between actual offenses and casual utterances that clearly do not rise even to the level of so-called microaggressions.
Is Boyers right? Was it bizarre and a lie for persons with disabilities to be offended by such expressions? I must admit that it came as news to me that the examples cited in the poster were offensive, so I asked Alan Toy, a longtime friend who has been a disability rights advocate for decades and is a fellow member of the board of the ACLU of Southern California, if these phrases are offensive.
Yes, and I am not alone in this, Alan replied. Those phrases
do kind of sound very much like dog whistles or worse to many of us in the disability cohort. There are a few more that could come to mind, but youve hit upon some of the more common ones. I always find those things jarring personally, though I do give a little bit of credit to the cultural habituation of these phrases in our common dialogue.
However, Alan added, once informed or (a)woke(n), I have little sympathy for their continued use. If we can learn how to not say things like the N-word, or the K-word, etc., etc., then we can also undo the ableist language in our lexicon. As for reporting these things to the proper authorities, Alan said hes
not big on that kind of approach, but if a person egregiously continued to use these phrases once warned, then perhaps further actions do need to be taken. But sometimes there are old dogs who just cannot learn new tricks, and it is not as if those folks are using these terms to purposefully slur or demean people with disabilities, even though that may be the outcome for some folks.
Im glad I checked with Alan. I learned a lot. I wish Boyers had checked with persons with disabilities too, instead of making assumptions and casting aspersions. Here and elsewhere in his book he shows few signs of having conducted probing interviews with the people involved in these controversies, such as the students on his own campus who created the poster, to get their side of the story. For someone who believes in open debate and discussion, such readily available research would have enriched and clarified his project.
Yet, despite its flaws, Boyers has written an important and provocative book that acts as an alarm calling attention to the excesses of dogmatism found in some quarters of the movements for equality. In the end, what is missing from this discussion on both sides or all sides, since it is multifaceted is a greater sense of humility, compassion, and generosity toward those, on the one hand, who are struggling to overcome the historical legacies and present-day realities of oppression and discrimination and those, on the other hand, like Boyers, who share the goals of those movements but are trying simultaneously to uphold the values of free and open debate unhindered by overreaction and censorship.
In his sympathetic New York Times review of Brandon Taylors debut novel Real Life, playwright and author Jeremy O. Harris describes how the protagonist, Wallace, a black gay grad student (with whom Taylor and Harris share similar experiences), walks the haunted halls of a white academic space feeling an overwhelming dread. Harris is struck by the whiteness of Wallaces surroundings, a fact of many spaces of American higher learning, and one rarely articulated in literature by writers of any race. Harris writes that the simple truth of Real Life is that Wallace, like myself and many others whove wandered dark, white halls in search of a future, has made himself invisible by shedding the skin of his past, and adopting a new skin unadorned with the blemishes of history.
In the year 2020, the suffocation of whiteness, sexism, and other forms of bigotry, running the gamut from insensitivity and marginalization to outright discrimination, still plagues our campuses and beyond. We ignore it at our peril. No one who has not experienced shedding their skin to make themselves invisible can sit in supercilious judgment over those who have.
Boyers ends his book by offering several sensible suggestions of what should not be done. Ideas should not be promulgated without seriousness, that is, without any corresponding consideration of what would be entailed were they actually to be effected. Ideas such as privilege, appropriation, ableism, and microaggressions should not be used to sow hostility, persecute other members of a community, and make meaningful conversation impossible. The classroom and the seminar should not be used to indoctrinate students and thus to send them off parroting views that they have not adequately thought through or mastered. An us versus them orientation should not be created which is underwritten by enemies lists, and fueled by a sense that on matters for which a consensus has been reached no dispute may be tolerated. And virtue should not be weaponized for what Marilynne Robinson calls class advantage, with zealots adept mainly at trumpeting their own superior status and making a fetish of indignation.
There is much to be learned from these suggestions. Yet even in his closing words Boyers cant resist using loaded terms like indoctrinate, zealots, and fetish to describe those with whom he disagrees. How would he react if teachers who promote his ideas in the classroom were labeled zealots who indoctrinate their students and make a fetish of their indignation?
The political thinker Michael Walzer contends that no one on the left has succeeded in telling a story that brings together the different values to which we are committed and connects them to some general picture of what the modern world is like and what our country should be like. The Tyranny of Virtue is not that book, but it is a thought-provoking effort in that direction which is worthy reading for anyone who cares about the struggle of creating a more perfect union.
In her highly original and incisive book Mere Civility: Disagreement and the Limits of Toleration (2017), Teresa M. Bejan, associate professor of Political Theory and a Fellow of Oriel College at the University of Oxford, makes a persuasive case that liberal democracies need not abandon one set of their values to preserve another. Drawing on the teachings of Roger Williams, Thomas Hobbes, and John Locke, Bejan argues that so long as we exhibit mere civility a minimal conformity to norms of respectful behavior and decorum expected of all members of a tolerant society as such without legislating civility through speech codes and other government-imposed restraints, we can achieve the highest ideals of an egalitarian, free, and just society. For her, democracy assumes ideological division, insulting invective, and sectarian splintering. Democracy is undermined by conformity that delegitimizes dissent while reinforcing the status quo, which hardly sets the stage for groups which have suffered oppression and discrimination to protest, speak out, and seek change. Equality and justice are not achieved by civilizing discourse aimed at silencing dissent and marginalizing already marginal groups.
Seen in this light, open and robust debate are the friends, not the enemies, of creating a diverse, multiracial nation dedicated to liberty and justice for all. Despite its flaws, The Tyranny of Virtue contributes significantly to a better understanding of the challenges we face.
Stephen Rohde is a retired constitutional lawyer, lecturer, writer, and political activist.
Posted: at 2:55 pm
America is the only Western nation that does not criminalize hate speech. Canada, Australia, New Zealand, and most nations of Europe already do so. The United Nations relentlessly pressures the remaining holdouts to follow suit: As a matter of principle, says the U.N. Secretary-General, the United Nations must confront hate speech at every turn.REF
Meanwhile in America, Members of Congress issue their support for speech restrictions, and Big Techs digital oligarchs, enjoying a disproportionate power over society, continue to impose speech restrictions in exchange for access to their platforms. So are Americas colleges and universities more and more governed by an aggressive chorus of students, faculty, and administrators who demand and impose speech codes. These fronts promises to grow in size, strength, and confidence in the coming years.
Leading restriction advocates want not only to banish hate speech, but also to criminalize it. In the words of Mari Matsuda, an influential professor at the University of Hawaii Law School, [F]ormal criminal and administrative sanctionpublic as opposed to private prosecutionis also an appropriate response to racist speech.REF Perhaps most surprising, legal precedents that would bring this revolution fully into existence in America are already embedded in two areas of our legal system: antidiscrimination and harassment laws, and Supreme Court rulings favoring sexual liberation that are based on a new view of dignity.
If Americans are to resist this growing movement, they must understand the arguments, the demands, and the consequences of outlawing hate speech. No laws of history dictate that America must submit and follow this path.
The debate over hate speech reveals a fundamental disagreement about the purpose of America. Either it is political liberty, in which case the freedom of speech is essential forpresumptively rational citizens to rule themselves politically and to pursue the truth through science, philosophy, or religion. Or it is the equal self-respect and dignity of marginalized and self-created identities, in which case these must not only be publicly affirmed and celebrated, but alsoshielded from (even well-meaning) scrutiny and criticism, called speech violence or hate speech. These two views cannot coexist. Indeed, restriction advocates admit that Americas understanding of speech comes into tension with the aspiration of equal dignity.REF They want to eliminate the former to make way for the latter.
Decent people are rightly unsettled by gratuitously vile words directed at undeserving fellow citizens. We should aspire to be courteous toward others. But todays proposals to ban hate speech are not at bottom about getting rid of racial epithets or Holocaust denial. Nor are these proposals about preventing physical violence against segments of the population. The First Amendment, we should recall, does not protect speech that intentionally incites imminent violence or lawlessness.
Rather, many restriction advocates seek to outlaw speech that they believe causes harmdefined in the broadest, most malleable waysto select, so-called marginalized or oppressed groups.
Such laws would severely restrict political deliberation on any number of critical issues confronting the country. For example, free and open political deliberation and discussions regarding criminality, immigration, and the health of the traditional family would be effectively silenced. All honest discussions of these and other topics, advocates allege, harm the self-respect of marginalized groups. The scope of permissible politics would thus be narrowed to concerns about apparently neutral subjects such as budgets and taxesalthough even these might not remain untouched. As a hint of what may come, some academics write that seemingly race-neutral [political] campaign themes like welfare policy carry demonstrably racially loaded undertones.REF
Without practice in self-rule and political deliberation made possible by free speech, the habits of character required for republican self-government will disappear in time. The loss of our practice of thinking independently and making judgments about the common good, the national interest, and human merit would give way to the domination of anger and resentment and a corresponding expansion of the state to adjudicate and rule individuals no longer fit for political liberty.
Finally, by banning the speech of the allegedly oppressive majority while directly or tacitly inciting protected groups to make unchallengeable claims to marginalization and voice hatred of the majority, outlawing hate speech promises to make the public square even more filled with hatred. The criminalization of hate speech leads not just to more hate speech, but also to civil strife. Most pernicious of all is the legal and moral acceptance of the premise contained in hate speech criminalization: the forced acceptance or celebration of unfalsifiable, self-created identities that are impervious to even mild rational interrogation, which opens the way to despotism.
America may see its possible future by looking to contemporary Western Europe. Beginning in the 1960s but accelerating in recent decades, these nations started to criminalize hate speech. They are in the midst of fully implementing, enforcing, and expanding these laws: Their experiment is still underway. Often legally understood as incitement to hatredas distinct from incitement to violencethe list of outlawed speech continues to grow, as does the number of groups protected from it. Today, speech that is deemed racist, sexist, homophobic, anti-ethnic, transphobic, xenophobic, or critical of religion is criminalized. These laws, as we will see, are in conflict with self-government, undermine the publicprivate distinction essential to the freedom of the mind, and provoke a new religious fanaticism.
As all of the European Union and Anglospheres speech laws are similar, only a few instructive examples follow.REF In Denmark, anyone who makes a statement or imparts other information by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin, religion, or sexual orientation is liable for up to two years of imprisonment.REF In Germany, a person speaking against the human dignity of others by insulting, maliciously maligning, or defaming segments of the population, shall be liable to imprisonment from three months to five years.REF In 2014, Belgium began to criminalize sexist speech, defined in the law as any gesture or act thatis evidently intended to express contempt for a person because of his gender, or that regards them as inferior, or reduces them to their sexual dimension, and which has the effect of violating someones dignity.REF Such gestures of contempt carry a fine of up to 1,000 and 12 months in prison.REF
By ostensibly protecting general categoriesrace, religion, national origin, or sexualityWestern Europes laws give the impression that all citizens are protected rather than just favored groups. In practice, however, these laws are enforced selectively: The overwhelming majority of documented cases of hate speech investigations, arrests, prosecutions, and convictions aim to protect so-called marginalized groups. One rarely finds arrests or prosecutions, for example, directed against academics, politicians, and citizens who freely malign Christianity, heterosexuality, and the legacy populations of Western European nations, though these nations public squares are full of such speech.
To the chagrin of European Union officials, relatively few prosecutions against speakers of offensive language are carried out today.REF They are, however, working to increase their amount by encouraging member states, through the European Commission Against Racism and Intolerance (ERCI), to create equality bodies, tribunal-like administrative agencies with broad regulatory and judicial powers that could supersede each nations laws. These agencies would collect hate speech complaints and adjudicate cases by means of internal arbitration. They would [i]ssue legally binding decisions that require action to put an end to discrimination, achieve full equality, and avert future discrimination.REF And they would have the power to file lawsuits against their host nations in European courts, compelling them to follow hate speech directives that the ERCI itself creates.REF
Undermining Self-Government. In order to prevent contempt and to protect the dignity of the marginalized, hate speech laws come into conflict with self-government by curtailing the publics ability to deliberate on and discuss essential political issues.
German citizens, for instance, who disagree with their nations immigration policy have been intimidated, investigated, arrested, and fined for speech allegedly capable of inciting hatred and denigration of the human dignity of others.REF In 2009, an elected Belgian politician who publicly criticized his nations immigration and assimilation policies was officially banned from holding public office for 10 years because his speech allegedly led to feelings of distrust, rejection or even hatredtowards foreigners.REF
In France, Marine Le Pen, the 2017 presidential election runner-up and head of a major political party, in an attempt to alert the public to the brutality of the Islamic State, posted pictures of its crimes to her Twitter account. She was charged with violating the dignity of (presumably) French Muslims. French law carries a penalty of up to three years in prison and a $90,000 fine.REF In the ongoing investigation, courts ordered Le Pen to undergo psychiatric evaluations to determine whether she suffers from mental illness and whether her mental state is a threat to public safety.
One need not side politically with any of these individuals to see that such laws render serious discussion of immigrationan issue as fundamental as any to self-government in terms of its capacity to transform a nationimpermissible. Other serious public deliberations of public policies are also frequently prevented by such laws, such as the health of the traditional family (as such speech harms the dignity of the LGBTQ and feminists) and criminality (as such speech harms groups with disproportionately high crime rates).
The Threat to Private Speech and Thought. European hate speech laws also break the all-important divide between the public and the private spheresthe fundamental barrier ensuring liberty of the mind and conscience.
In France, for instance, the criminal code explicitly states that Non-public provocation to discrimination, hatred or violence against a person or a group of persons on the basis of their origin, membership or non-membership, true or supposed, to an ethnic group, a nation, an alleged race or a particular religion is punishable.REF As the law is written, private speech can be reported to the police to launch a criminal investigation and possibly prosecution.
In England, a private conversation between hotel owners and a patron on the relative merits of Christianity and Islam was reported to the police by the patron. While acquitted at trial, the hotel owners were financially ruined. That ordeal destroyed their business, which has never recovered. One conversation. One false complaint. And it devastated lives as a result.REF
As one scholar nicely summarizes the problem: The view that law regulates action but not opinionleaving the mind ever freeis at the very center of the liberal distinction between public and private. While we tolerate those whom we neither like nor respect[n]ow our politics goes farther, making what individuals think about one another an explicit concern of public policy.REF Such laws are the precursor of a tyranny that targets the minds inner thoughts with a view to purifying them.
Provoking Religious Fanaticism. Western Europes hate speech laws also criminalize remarks critical of religion. In their application, however, these laws disproportionately target speech against Islam, while the public square is open to attacks on Christianity.REF
In 2011, for example, a woman was convicted by the Austrian government for saying in a private seminar that Muhammads marriage to Aisha was an act of pedophilia because Muhammad was 56 years old at the time of this marriage, while she was six years old. Ironically, these claims are established by Muslim sources.REF Nevertheless, the speaker was convicted by a Vienna court for disparaging religious doctrines in a manner capable of provoking justified indignation, even though there was no actual victim in this case.REF
On appeal, the Austrian Supreme Court ruled that the speakers statements were value judgments, or statements of opinion, which apparently are not justifiable forms of speech when discussing protected groups.REF After another appeal, the conviction was upheld by the European Court of Human Rights, which ruled that the statements were capable of harming the feelings of the followers of that religion, and therefore not subject to legal protection. The European Courts ruling additionally noted the need to forbid such speech to prevent violent Muslim riots.
In other words, the threat of rebellion and violence rather than the truth of a statement and the freedom of the mind come to set the standard of the law. As discussed below, in punishing those who criticize religion and especially Islam, contemporary European laws misunderstand the psychology from which sectarian despotism arises and are bringing about a new religious fanaticism that is unchecked and untamed by rational inquiry.REF
Canadian Multiculturalism. Canadas laws largely follow Europes model. Ontarios Racial Discrimination Act of 1944, updated in 1985, prohibits the publication of any notice, sign, symbol, emblem or other representation indicating discrimination or an intention to discriminate against any person or any class of persons for any purpose because of the race or creed of such person or class of persons.REF Action need not follow from an alleged intention. Such willful promotion of hatred can lead to two years in prison. The Canadian Human Rights Act of 1999 punishes the repeated telecommunication of messages that expose persons to hatred or contempt based on their race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for which a pardon has been granted.REF
Revealingly, the Canadian Supreme Court has held that:
A multicultural society that understands equality as requiring the equal self-worth of all groups needs laws that root out all public and private judgments of hatred and contempt. It calls this open-mindedness. Canadas Supreme Court implies that multiculturalism is in conflict with the freedom of the mind to form judgments contrary to the self-worth of protected groups and the freedom of speech to express them. Accordingly, multicultural political harmony depends on silencing these. Soft tyrannies can be harmonious; in fact, forced harmony is often their aspiration.
The Threat to Free Speech in America. A brief glance at todays America might lead one to believe that the First Amendment will protect us from Europe and Canadas course. After all, in 2017, the Supreme Court of the United States ruled unanimously in Matal v. Tam that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.REF Again, the First Amendment already protects us from intentional incitement to imminent lawlessness.REF Yet four important fronts intent on outlawing hate speech are unifying and growing in America.
First, some influential restriction advocates believe that the civil rights movements promise to create an anti-racist society was not fulfilled by laws governing public accommodations, employment, and fair housing. These laws only pushed discrimination deeper underground, where it remains in the oppressor groups mind. A forthright focus on speech and language may be one of the few means of addressing and curing [the institutional] racism that prevents the full implementation of the civil rights movements goals.REF The administrative agencies that issued from the civil rights movement like the Equal Employment Opportunity Commission (EEOC) have already created regulatory precedents to outlaw hate speech. The EEOC defines harassment and offensive conduct in the workplace to include speech, such as offensive jokes, slurs, epithets or name callingridicule or mockery, insults or put-downs.REF Legal activism and state action promise to accelerate in the future.
Second, the Supreme Court has already accepted some of the underlying logic that could be used to ban hate speech. Specifically, over the past 30 years, dignity as a legal concept has entered Americas courts through the agenda of liberating sexuality.REF If dignity, as Justice Anthony Kennedy argues in Obergefell v. Hodges (2015), means the capacity to choose ones own identity coupled with the corresponding demand that others recognize this identity, then speaking (even indirectly) against a protected identity could constitute hate speech.REF
Third, Americas big tech companiesGoogle, Twitter, and Facebooklargely imitate the premises of Europes hate speech laws. And they are currently in the midst of expanding restrictions. A leaked Google internal memo shows the companys skeptical view of the freedom of speech, comparing the American tradition to the European tradition: America prioritizes free speech for democracy, not civility, while the European tradition favors dignity over liberty and civility over freedom. The memo states Googles support for the European tradition and argues that all tech platforms will move in that direction eventually.REF
Similarly, Twitter publicly states its commitment to prohibiting content intended to incite fear or spread fearful stereotypes about a protected category and content that degrades someone. Since inciting fear is so broad as to have no intelligible content, anything short of celebration of a protected identity group can be considered suspect, although Twitter is particularly devoted to stopping hatred, prejudice or intolerance that seeks to silence the voices of those who have been historically marginalized.REF
Facebooks policies explicitly ban the use of what it deems to be dehumanizing terms as applied to groups. The problem with hate speech, according to Facebook, is that it prevents people from authentically expressing their identities. What exactly might constitute obstruction of individual expression of identity will be judged by the moral mirror within the tens of thousands of Facebooks human hate speech reviewers and algorithms which monitor and ban content.REF
Fourth, many of Americas colleges and universities already actively promote and implement policies to ban offensive thoughts through speech codes. This, of course, is in stark contrast to the original purpose of these institutions: freedom of the mind and the pursuit of truth. Many of Americas colleges and universities are now the training ground for a generation of future citizens sympathetic to outlawing hate speech. A recent poll reveals that only 53 percent of college studentsa bare majorityfavor freedom of speech, a marked change from the spirit of 1960s campus activists.REF
As this powerful, multi-front movement continues to grow, Americans should not view the courts as their sole protectors. Courts are not impenetrable fortresses, but rather are swayed both by public opinion and by elite activism. One striking example is Obergefell v. Hodges, in which a divided Court held that same-sex marriage is a constitutional right. The Court would never have ventured such a ruling 50 years ago for fear of being labelled a usurper and risk being disobeyed. In 1972, upholding a 1971 Minnesota Supreme Court ruling in the case of Baker v. Nelson,REF a unanimous U.S. Supreme Court held in a one-sentence order that a challenge to Minnesotas law limiting marriage to persons of the opposite sex did not even raise a substantial federal question.REF But Americas elite institutionsthe universities, the press, the mass entertainment industryhad prepared public opinion to adopt the views stated in the Obergefell ruling. A similar development is already occurring with outlawing hate speech.
Hate speech, according to the most influential restriction advocates, is speech that allegedly causes physical harm, causes social harm, or, most important, harms the dignity and self-respect of marginalized groups. According to Mari Matsuda of the University of Hawaii, a prominent voice for speech criminalization, The definitive elements [of hate speech] are discrimination, connection to violence, and messages of inferiority, hatred, or persecution directed against historically oppressed groups.REF
Similarly, Jeremy Waldron of New York University states that hate speech consists of publications which express profound disrespect, hatred, and vilification for the members of minority groups.REF The minority status considered here is not based on numerical representation (for example, coal miners in West Virginia). Rather, these are vulnerable minorities, defined by their race, ethnicity, nationality, or sexuality, who in the recent past have been hated or despised by others within the society.REF
For other advocates, in fact, even the insinuation of dislike or contempt for a groupwhat is often referred to as a dog whistlemay constitute hate speech. Hate speech, writes one scholar, can be disguised as political expression.REF It can be concealed in statements which at a first glance may seem to be rational or normal, the Council of Europe declares.REF Nor does such speech need to be directed at a particular individual or therefore involve an actual victim for it allegedly to harm the entire group. Its circulation in society detracts from the self-respect of a marginalized group and undermines its members status in the eyes of the dominant group.
At bottom, hate speech is essentially relational: It comes from the dominant or oppressor groupoften openly identified in the American context as whitesand is directed against subordinate-group members, the marginalized, who, again, are not necessarily numerical minorities, as women also are included.REF Because there is no correlateno analog, for hate speech directed toward whites, as the oppressor cannot be wounded by speech, such speech is acceptable according to Richard Delgado and Jean Stefancic of the University of Alabama Law School.REF
Given this, for some advocates, it follows that the only tolerable form of hate speech is speech directed against the alleged oppressor group. As Matsuda elaborates, Expressions of hatred, revulsion, and anger directed against historically dominant-group members by subordinate-group members are not criminalized by the definition of racist hate messages used here.REF Hate speech and hatred as such, in other words, are tolerable.
In fact, the very purpose of hate speech regulation is one-sided: The marginalizedwho by their alleged marginalization are seeking liberationare permitted to speak freely, while the oppressor group must be silent. For example, Malcolm Xs expression white devilREF is as tolerable as it is to say today that [t]he greatest terrorist threat in this country is white men.REF Society must tolerate speech that comes from an experience of oppression.REF
Some criminalization advocates not only tolerate, but encourage hate speech directed against the so-called oppressor group: If the liberation of oppressed groups comes to depend on disrupting or undermining the power of the oppressor, then hate speech toward the latter is ipso facto encouraged. Today, advocates view such speech as courageous, heroic, and necessary, both for the purpose of supposed liberation and for the deeper purpose of finding and securing an identity for the marginalized: An angry, hateful poem by a person from a historically subjugated group should be interpreted as a victims struggle for self-identity in response to racism.REF Not only is such speech encouraged in Americas racial politics, one sees it as well in the LGBTQ movements open hostility to Christianity: The public legitimacy of their sexual identities has come to depend on undermining the alleged oppressor group whose speech can make them doubt their identity. It may even be the case that through hate speech toward oppressor groups, the marginalized can eventually achieve the goal of obtaining a dominant or equalized position in society.REF
While some restriction advocates claim that they desire facially neutral speech regulations that purport to protect all groups from hate speech,the unmistakable underlying goal of such laws is to decrease the speech of the oppressor and permit or increase the speech of the marginalized.REF Why, after all, would judges or administrators equally enforce laws if they concedes the premise that the marginalized have a truer, more just voice struggling for self-respect and dignity, while the only obstacle in their way is the oppressor group, who uses speech to defend its own dominance?
To protect the allegedly marginalized who are seeking liberation, self-respect, and dignity from critical or even reasonable speech, the public square must undergo an essential transformation. As Delgado and Stefancic note, speech regarding facts that may call into question a groups self-respect would be viewed as deplorable and constitute hate speech. For instance, speaking of the statistically documented disparities in educational preparedness of affirmative action recipients is not permissible speech.REF Labeling as hate speech factual, provable claims would extend to any number of issues that conflict with the self-respect of the marginalized. One already sees this conflict underway between medical doctors and transgender activists.
Once the truthfulness of a claim is no longer held to qualify it as protected speech, the alleged victims idiosyncratic view of his self-respect and his anger at its being questioned become the arbiters of justice. Not just a victims rational, evidence-based testimony or bodily harm, but the victims sense of self-respect, regardless of the truth, assume a posture of sanctity.
Beyond narrow factual claims, on this logic, so too would broader factual disputes be judged impermissible. Because even a determined judiciary will not be able to enforce equality and racial justice by banning hate speech, ridding society of the underlying sentiments contained in hate speech requires that the dominant groups culture and opinion of itself be reshaped so that positive depictions of marginalized groups predominate in the minds of oppressor groups and in society.REF Presumably, advocates must replace the dominant groups cultural images and narratives with new mythologies about the marginalizedwhile also removing these from scrutiny or criticism. It would thus become impermissible to dispute the truthfulness of the narratives of the marginalized: for instance, that all of history is patriarchal oppression designed to subjugate women, or that gender is a social construct to be freely chosen, or that the United States is founded fundamentally on white supremacy.REF
A society devoted to political liberty and natural rights must be radically transformed to bring into existence the new moral doctrine hidden beneath the criminalization of hate speech. If the legitimate object of the law becomes avoiding the spread of hatred, as some criminalization advocates contend, rather than the security of life, liberty, and property, the mind must be the target of the laws censure.REF The law must restrict oppressor group speech because a focus on speech and language may be one of the few means of addressing and curingunarticulated feelings, practices, and patterns of [racist] behavior.REF The law, in other words, must enter the minds inner recesses to judge and punish its motives.REF Today, implicit bias testing in universities and corporations attempts to perform this task.
Descending into the mind and punishing thoughts contradicts the foundation of political liberty: that the minds facultiesones thoughts and therefore ones speechbelong to oneself. As James Madison puts it, man has an equal property in the free use of his faculties.REF Mans faculties belong to himself, and his speech, as a product of his mind, also belongs him. This is closely related to Madisons observation that a mans conscienceis more sacred than his castle, the violation of which is coequal to breaching the social contract.REF
In a reversal of Madisons position, restriction doctrines teach that the mind of the oppressor must belong to the marginalized so that the former comes to reflect the notions of self-respect of the latter. These new moral and legal standards teach citizens that they have a right to dominate others and to be obeyed. Their fellow citizens should exist for them and should bend to their wills. Such beliefs simulate the self-understanding of a self-sufficient god, lacking the need for any external authority to moderate or validate them. But since the desire that others must exist for you cannot be satisfied, one must punish those who rebel. Justice is no longer about equal rights, which protect individuals against oppression, but about vengeance and compelled respect. America, we might recall, promises the equal protection of rights, not equal self-respect.
Criminalization advocates cite four specific harms that are caused by hate speech: physical harm, political harm, violence, ormost importantharm to dignity. These claims do not withstand scrutiny.
First, criminalization advocates allege that hate speech causes physical harm. According to Mari Matsuda, Victims of vicious hate propaganda have experienced physiological symptoms and emotional distress ranging from fear in the gut, rapid pulse rate and difficulty breathing, nightmares, post-traumatic stress disorder, hypertension, psychosis, headaches, dizziness, and suicide.REF According to Delgado and Stefancic:
So too does hate speech allegedly cause hypertension, high blood pressure, and even strokes.REF
In addition, offensive speech inflicts psychological harm and long-term emotional pain upon the victim, the main effect of which is self-hatred.REF [S]peech that communicates low regard for an individual because of race inscribes disabling stereotypes and apathy in those constantly subjected to it.REF Thus, much of the blame for the formation of these attitudes in children but presumably also in adults lies squarely on value-laden words, epithets, and racial names.REF Nearly all cultural ill can be blamed on offensive speech. Eliminate offensive speech, the logic seems to go, and eliminate not only self-hatred, but presumably social pathologies as well.
Restriction advocates exclude the notable examples of individuals like Frederick Douglass and Martin Luther King Jr., among others, who during the rule of slavery, segregation, and hostile public opinion somehow did not suffer the aforementioned pathologies but instead were capable of clear-minded thought and self-possessed action. So too have Americas Jews, Mormons, Catholics, and Asians been discriminated against, both in the law and in speech, throughout American history without suffering the same maladies. Nor does the majority group suffer from these pathologies, despite the large amount of hostile speech directed against them in the press, the academy, and the popular culture today.
Second, according to criminalization advocates, hate speech is a weapon used to prevent the political participation of the marginalized, for it signals that they need not vote or engage politically in the face of an unpersuadable oppressor group. While one might think that the freedom of speech presumes that rational citizens are capable of persuading and being persuaded through reasoned arguments, criminalization advocates disagree. Some allege that because of unequal power differentials embedded in the structures of society and in language, marginalized groups cannot rationally appeal to a majority.REF Accordingly, because of the mental distortions that power imparts on the oppressor group, power must first be equalized before persuasion is possible. As Charles R. Lawrence III argues:
If speech is merely a reflection of power, the mind is not open to persuasion, but serves instead as a simulacrum of interests protected by force. Oppressor groups not open to persuasion must thus be compelled to oblige the marginalized, at the very least through speech censorship, but through other means as well. Thus, not speech but power equalization (possibly, for example, through mass immigration and the creation of new minority-group coalitions to form a new majority against the old oppressor majority) is required so that marginalized groups can form a plurality and overcome the distortion of oppressor minds.
How it is that oppression does not distort the reason of the marginalized so as to make their minds uncomprehending of others reasoned speech is never addressed by these advocates. Rather, marginalized groups are frequently presented as possessing the fullest rational capacity. One may almost come to believe that the experience of marginalization itself grants rational clarity: Somehow, the marginalized can judge fairly in their own cases, and possess what appears to be a nearly infallible (or at least an unquestionable) perspective.REF If possessing the truth is a good or the best thing, on this logic, it is a gift to be marginalized. Yet these groups, as noted, are simultaneously presented as being distorted by various pathologies and by self-hatred stemming from hate speech.
Third, restriction advocates argue that hate speech causes acts of violenceeven when not explicitly called for by the speaker. Words of fear and loathing can, and do, have real consequences, says the United Nations.REF A society that bans hate speech, in other words, would have fewer hate crimes. And yet, even though both the United Kingdom and France criminalize hate speech directed at Jews, violent anti-Semitic hate crimes in 2018 were 13 times more likely to occur in the U.K. and four times more likely to occur in France than in the U.S., which does not criminalizes such speech.REF As Human Rights Watch observes, a careful review of the experience of many other countrieshas made clear that there is little connection in practice between draconian hate speech laws and the lessoning of ethnic and racial violence or tension.REF
In America, where hate speech is not criminalized, hate crimes are falling over time.REF As one analyst has calculated, the total number of hate crimes tallied by the FBI going back to the year 1996 was 8,759 from 11,000 agencies. In 2017, with 16,000 agencies reporting, the total was actually lower. The overwhelming majority of municipalities reported zero hate crimes.REF There is simply no question that America has become a more tolerant society over the past 60 years without hate speech laws. The criminalization of hate speech is not necessary for hate crimes to diminish.
Nor do hate speech laws seem to reduce discrimination. A 2017 European Union survey showed little change in reported discrimination compared to seven years earlier, despite further criminalization of offensive speech across the continent.REF After the survey, the E.U. Agency for Fundamental Rights was forced to conclude that the [l]ack of progress in preventing and countering racism indicates that laws and policies may inadequately protect the people they are meant to serve.REF The E.U., however, took this as an indication that even more restrictive speech laws are needed rather than as an opportunity to question its premises.
Some restriction advocates cite genocide as the ultimate outcome of hate speech. In a statement released by the United Nations Office on Genocide Prevention, Special Advisor Adama Dieng explains: Genocide is a process. The Holocaust did not start with the gas chambers. It started with hate speech.REF Advocates always cite the examples of the Holocaust, the genocides in Rwanda and Sudan and, surprisingly, even the Spanish Inquisition.REF Given that America has among the freest speech laws in the world, on this logic, we would expect relentless calls to genocide or even genocide itself to take place.
It is deceptive to assert that hate speech laws could have prevented the rise of Nazism. Not only did the Weimar Republic already have actively used laws that banned anti-Semitic speech,REF but Hitler additionally understood that the freedom of speech was a roadblock to total rule: His first emergency declaration ended the freedom of speech and press.REF In asserting that hate speech laws could have prevented the rise of Nazism, restriction advocates misunderstand the powerful causes that accounted for it. German belief in the destiny of a racial identity, caused by a rejection of modern civilization, foreclosed their belief in a general humanity endowed with natural rights. Such powerful intellectual movements, the cause of great revolutionary vigor, are not stopped by hate speech laws.REF
Advocates of speech regulation offer another classic example of violence stemming from speech: the Ku Klux Klans cross burnings on the lawns of innocent African American families. Such actions are terrible, yet they were already illegal: Laws against criminal trespass, against damaging property, and against threats of violence were already on the books. Regrettably and unjustly, they were not being enforced. In Virginia v. Black, the Supreme Court held that cross burnings perpetrate a threat of impending violence and hence can be prohibited by state law.REF Moreover, under a plausible reading of the First Amendments Free Speech Clause, the Ku Klux Klan would be considered an organization engaged in sedition, advocating as it did the overthrow of constitutional government, and would have been outlawed.REF
Fourth, and most important, restriction advocates ultimately seek to criminalize hate speech because of its alleged harm to dignity. Dignity is an abstraction praised by nearly everyone today, but its contemporary meaning is not well-understood. The fulfillment of dignity has come to mean that someone must be respected by others as he would like to be respected. Banning hate speech and judgments contrary to the dignity of the marginalized, advocates promise, will establish their equal respect in society. On this logic, the deeper, unstated goal of outlawing hate speech becomes silencing the faculty of judgment of the oppressor group, the very core of which is discrimination in the broad, technical sense of forming judgments that distinguish between the noble and the base and the true and false. To succeed in silencing this power of the mind, one must silence reason itself, a goal that appears to be central to the full celebration and inclusion of all marginalized identities.
Todays understanding of dignity marks a radical break from our two preceding intellectual traditionsthe biblical and the classical liberal. While neither relies expressly on the word dignity, both nevertheless articulate what modern dignity theorists are seeking to establish through this concept: something permanently true of all human beings that endures throughout our changes (in circumstance, character, and growth) and is worthy of respect. The classical liberal tradition grounded dignity in our rational faculty, and the biblical tradition grounded it in the soul. Not satisfied with the previous traditions, contemporary dignity theorists seek something new and better: dignity as the need for others to affirm someones self-created identity and thus their self-respect.
The Biblical and Liberal Traditions. While the Old and New Testaments do not use the word dignity, the Bible does teach that there is something dignified about human beings who, alone among all living things, are created in the image and likeness of God.REF Human beings are endowed with Gods breath, or an eternal soul responsive to God, which connects us to His divine order. Through the soul, our lives are directed toward a prescribed end according to the laws revealed by God.
The second understanding of dignity, distinct from but perhaps not in conflict with the first, finds its clearest expression in the writings of John Locke and in the broad theoretical consensus among Americas Founders. Although the Declaration of Independence, the Constitution of the United States, and the other works of the Founders do not reference dignity, they all see in our rational faculty the basis for our possessing unalienable natural rights.
Among other things, reason gives us the capacity for foresight, which in turn means that human beings, unlike animals, can be held accountable for their actions.REF Because our reason can control our passions, appetites, and impulses, we are accountable to and cognizant of the laws of nature and are potentially suited for political self-rule. Thus, Locke refers to the the dignity and excellency of a rational creature.REF In very brief summary, the capacity for rational self-possession is the cause of our self-respect and constitutes the closest approximation to the contemporary meaning of dignity in the American tradition.
Dignity in both traditions, it should be noted, has an ambiguous status: Its basis is innate, but its fullness must be attained. In the Biblical tradition, the breath of God is contained in all human beings, but one cannot relentlessly rebel against Gods commands and still have full dignity. In the natural rights tradition, human beings possess reason, but we are not by nature fully dignified, as we are given to violating others rights (for which reason governments are formed). One may say that we all possess a minimum of dignity in potentia in both traditions and that both contain within them intelligible standards of behavior by which one can judge noble and base actions. Thus, both traditions provide a path by which to become fully dignified, the one achieved through rational self-possession and the other through obedience to Gods commands.
The Search for a New Dignity. In contrast to the political theory beneath Americas constitutional order, many of the national constitutions and international accords established since 1945 are explicitly based on a radically new understanding of dignity. In fact, for some contemporary scholars, omitting the new view of dignity from Americas founding documents explains the questionable value, scope, and limits of [Americas] constitutional rights.REF For them, dignity should somehow stand over and above the Constitution, the Declaration, and the understanding of human nature upon which they are based.
The new national constitutions arising in the wake of the Second World War and the Holocaust sought to ground themselves in a new faith, semiconsciously defined against the old alternatives. Before this period, dignity was rarely viewed as a central political concept.REF As Mary Ann Glendon observes, in the generation before World War II, influential intellectuals like Max Weber and Oliver Wendell Holmes had learned to look at humans scientifically, as merely material beings. Other leading intellectuals of that generation, under the sway of Darwinism, found no special, durable qualities in human beings, seeing them not only as mere body, but also as body changing by the accidents of evolution and therefore neither stable nor ultimately intelligible.REF The postWorld War II dignity movement attempted to rebel against these doctrines while also tacitly accepting their premises. For instance, rather than simply rejecting the theoretical teachings of modern natural science or Darwinism, dignity advocates sought to discover something stable and respectable in human beings without reference, however, to the soul or reason. Confusion about this central concept has not only led to its capture by political activists, but also has made it so incoherent as to be dangerous.
So fashionable has this term become that some academics assert it as though its meaning is self-evident and requires almost no argumentation: [P]hilosophically, we may say that dignity is inherent in the human personand so it is.REF While many dignity advocates reference the works of Immanuel Kant as their starting point, Kants understanding of dignity is unacceptable by todays egalitarian tastes because it is closer to the two older traditions.
Kant teaches that dignity consists in mans capacity to employ the distinctly human faculty of reason in grasping, and subordinating his wills to, the universal moral law. This act is rational self-legislation, and it demands that individuals overcome themselves as beings attached merely to themselves and their own. REF Dignity here both depends on reason and requires a rare capacity for exercising self-restraint and self-abnegation. This reading implies that while all possess dignity in principlesince the universal moral law is accessible to allonly those who act accordingly may properly be said to fully possess dignity.REF
Kants view of dignity, however, is in conflict with contemporary theorists moral attachment to equality. The Kantian view is insufficiently egalitarian, as it establishes a standard of excellence that is surely not achievable by all. As one scholar observes, the Oxford English Dictionary gives 11 definitions of dignity, and the one he most esteems is the quality of being worthy or honorable; worthiness, worth, nobleness, excellence. Yet this elevated definition troubles him.REF If dignity is an expression of excellence, it requires a standard of high and low, which in turn also necessitates shame, or the capacity to evaluate oneself and others in reference to an intelligible hierarchy.REF In order to resolve the conflict between dignity and equalitythat is, to allot full dignity to everyone without reference to standards of excellencemodern dignity advocates are prepared to get rid of excellence to make Every man a duke, every woman a queen.REF All must be honorable without attaining anything worthy of honor, or worthy without worthiness.
Other contemporary theorists additionally reject the Kantian view because it is ultimately grounded in our rational faculty. In the elusive chase to disassociate dignity from reason, scholars including Martha Nussbaum see reason as too inegalitarian because it involves pejorative comparison with nonhuman animals.REF The very faculty that once accounted for our dignity in the American traditionreasonNussbaum finds inadequate for the sake of human equality with the subhuman: We should not exalt rationality as the single good thing, as this denigrate[s] forms of need and striving that are parts of our animality.REF Human beings, in other words, must be animalized to find what is respectable in them. If we hold reason as the highest thing in us, Nussbaum regrets, we come to respect only a small sliver of ourselves, for the old view presumably excludes respect for our passions, appetites, and desires.REF Such a definition points to the enslavement of the mind to powerful passions and nearly limitless appetiteswhich is, one may say, indeed a form of reanimalization.REF Where dignity is understood primarily in terms of sentience, rights based on our rational faculty, like speech, are depreciated.
Some influential speech-restriction scholars ultimately identify dignity as a matter of statusones status as a member of society in good standingand [something that] generates demands for recognition and for treatment that accords with that status.REF Human beings require sacral respect issued to them by others, not just nonchalant forbearance like that allegedly offered by the Founders and Locke.REF As another scholar puts it, dignity requires treating someone with recognition of her dignity, which specifically excludes attitudes of contempt, hatred, and discriminatory feelings.REF Recognition of dignity thus comes to require the absence of contempt, hatred, and discriminatory feelings. On this view, dignity becomes a demand, for one cannot believe in ones dignity without acceptance and celebration of it by others, who owe us unthinking sacral respect.
Once dignity no longer depends on reason, where the capacity to rule oneself rationally is primary, and once dignity no longer depends on the soul, where human beings live in relation to a divine order, dignity greatly relies on its being granted to groups and individuals by others: We accord people dignity on account of the sorts of beings human persons are.REF We are fundamentally needy beings whose self-worth must be confirmed through the opinions of others. Dignity theorists seem to want it both ways: On the one hand, they want dignity to be innate while not finding its grounding in reason or the soul; on the other hand, while asserting that it is innate, they claim that it must be accorded to individuals and groups through recognition by others (and by the law). This confused, radical break from the preceding tradition leads quickly to the view that speech can cause devastating harm to dignity.
The dignity-as-recognition view is best summarized (though perhaps not fully espoused) by the influential professor Charles Taylor. Human dignity, writes Taylor, consists in the universal potential for forming and defining ones own identity, as an individual, and also as a culture.REF Ones identity should not merely be given, forced, or tacitly assigned by the dominant groups in society. The marginalized in particular ought to purge themselves of the imposed and destructive identity given to them presumably by male, white, or European society.REF
In doing this, ones identity may become authentic: Being true to myself means being true to my own originality, which is something only I can articulate and discover. In articulating it, I am also defining myself.REF On this view, authentic identity creation would consist first in liberation from given, false, and inauthentic individual and group identities.REF But identity creation alone is not enough: The commandment to rebel from given identities and create an authentic one is followed by the equally necessary demand that Everyoneshould be recognized for his or her unique identity.REF Fairness demands equal chances for everyone to develop their own identity, combined with the recognition by others of these identities, based on their gender, racial, culture, or to do with sexual orientation.REF
Thus, ones created identity crucially comes to depend on others recognizing that identity as one would like it to be recognized. Nonrecognition or misrecognition inflicts grievous harm; both become forms of oppression that imprison someone in a false, distorted and reduced mode of being and cause self-hatred.REF To withhold recognition of a self-styled identity is to inflict harm by denying someone that which he most needs to be himself. Recognition, in other words, is not merely an optional courtesy, but a vital human need.
So too does censure or condemnation of a chosen identity bring great harm. Thus, the demand for equal recognition extends beyond an acknowledgement of the equal value of all humans potentially, and comes to include the equal value of what they have made of this potential in fact.REF Speech that imparts judgements or doubts regarding the goodness or authenticity of a self-created identity, even if based on rational inquiries, becomes a form of oppression.REF Such arguments almost effortlessly end up sanctifying dignity as a self-created cause for self-respectwhich, in practice, becomes a bouquet of desires and self-declared myths that ultimately depend on others confirmation of their truth. Nevertheless, the surest way to lose ones dignity and social status in this scheme is not by inventing an identity, but by denying that identity can be invented.
The two great philosophers from whom this amalgamation of thought ultimately arises (Jean Jacques Rousseau and Friedrich Nietzsche) would look down on such sanguine speech as sophistry aiming to flatter democratic man into believing that all can be wise, creative, and free in the fundamental sense,REF but by promising that self-creation is easily available to all and by misunderstanding the depth of what is at stake in this task, contemporary dignity theories lead their followers into disappointment, resentment, and worse.
The new view of dignity creates brittle human beings who can have little self-respect without others confirming their worth. They thus exist within the psychological confusions and uncertainties of vanity, living engrossed in and dependent on the judgments of others. They learn to demand respect without justification or virtue. They first attempt to persuade and then compel others to believe in their unfalsifiable, self-created identities. Given the psychological impossibility of this task (not to mention its undesirability), they can cultivate a punitive (if not tyrannical) desire to crush not just those who disbelieve them, but even the truth so that they can preserve their self-created self-respect. Dignity becomes so frail and confused that it generates the demand to silence others speech and thoughts so that they can continue to believe their good opinions of themselves. In sum, these doctrines create both the pretense to godlike power and childlike frailty, not to mention unhappiness.
Nor does easygoing self-creation lead to the seductive promise of political peace. Taking a broader view and considering what would likely happen to a nation if it were earnestly guided by this doctrine, all self-created identity groups would eventually become so different from one another that they would agitate against each other, thus preventing the possibility of like-mindedness, comity, and unityin a word, nationhood. As Taylor summarizes:
In practice, one is meant to believe that this radical form of identity creation will somehow yield harmless, tame, and polite human beings capable of living together in a democratic society. Advocates hope that democracy and pluralism, ideals in the end higher for them than authenticity itself, will circumscribe and moderate the formation of identities, but in practice, real identities based on deep, genuine beliefs are often unstomachable to each other.REF Such identities may even seek to harm those who blaspheme against their gods. Why compromise ones authenticity for the sake of democracy and pluralism? The Third Reich, for instance, aimed to create an identity anchored in race. A self-created identity may dictate the desire to rule over others on the basis of ones superiority in authenticity. If earnestly practiced, this doctrine may lead nations into two directions: either war among identity groups or the domination of one identity group over another.
The underlying psychological appeal of the new dignity consists in the longing of a people who no longer believe in either a divine or a rational order providing them with an eternally true principle on which to ground their self-respect. But contemporary dignity theories do not deliver. In fact, they point to a new form of fanaticism incompatible with political self-rule.
One possible solution can be gleaned from Thomas Jeffersons widely influential arguments concerning how fanaticism can be tempered by reason. In Jeffersons day, he thought religion was the source of fanaticism. Today, identity politics is and promises to be as piously cruel as yesterdays religion. Both want to be rid of their adversary: rational inquiry.
According to Jefferson, the early American settlers who ran from religious persecution began to persecute in their new settlements, passing laws enforcing the baptism of children, banning blasphemy, and imprisoning members of other sects. Their fanaticism culminated in burnings and torture.REF For Jefferson, this characterizes a general tendency within all sects: Each sect claims to possess the singular true teaching and is thus orthodox onto itself. Since man is an imitative animal, he learns to punish from his God.REF Inherent in the nature of unmoderated orthodoxy is the desire to impose belief onto others: Saving souls through the conversion of nonbelievers was a religious duty that, without legal restraint, culminated in coercion of belief and brutality.REF
Jeffersons solution to taming the psychology of orthodoxy is perhaps strange at first glance: the freedom of religion and the freedom of speech. Jeffersons logic unfolds in the following way. The objective of civil law is the protection of natural rights and the subordination of ecclesiastical authority to it: The legitimate powers of government extend to such acts only as are injurious to others, defined mainly in terms of life and property. The separation of church and state redefines harm as largely material or physical, rather than as affronts against religious opinions.REF All individuals, in other words, are toleratedfor toleration does not require either love or even fellow feeling, but the firm belief that all are entitled to the security of natural rights. Once rights are secured, moderating religious fanaticism requires the free circulation of opinions, both in religion and in other spheres, like science. In their free circulation, there is contestation, and religious dogma becomes tame and docile when removed from the power of the law and when subject to the only effectual agents against error: namely, reason and free inquiry.REF
Viewed from the perspective of Jeffersons analysis, rational inquiry into the various claims to marginalization and dignity moderate their fanaticism. By making criticism of identity, and, in the case of Europe, religion, illegal, however, hate speech laws nurture the punitive passions contained in orthodoxy. If identity groups are removed from rational criticism, they become divinized and held as sacred. This is especially dangerous in the American context when, as noted, these identities are defined explicitly against alleged oppressor groups. In Europe, one readily sees the developing ferocity of Islam unchecked by rational inquiry. Hate speech laws may bring about the very violent tendencies they claim to diminish. Free speech thus stands as the roadblock on the path to fanaticism.
Many well-meaning, decent Americans do not yet clearly see the underlying goals or the political implications of hate speech laws. They should first recall that Americas laws already ban incitement to imminent violence of any kind; they already protect citizens against individual defamation. Perhaps even more powerfully, the law of opinion already opposes hatred and contempt for protected groups in the public square. There is thus no need for hate speech laws.
Restriction advocates, to various degrees, are committed to creating a world that is hostile to political liberty and freedom of the mindviewing these, in fact, as conflicting with their genuine goal of dignity and equal self-respect. If the laws aim becomes securing each persons proper pride and dignity against the soul-shriveling humiliation that a discriminatory rebuff can give rise to, despotic measures must ultimately be instituted. REF
In civil conditions, one can neither compel the earnest respect of others nor force ones own self-respect, though it is possible to destroy political liberty in the attempt. Should such laws be implemented in America, the public square will be transformed into an arena where forced silence and false celebration rather than free political deliberation are the norm and where the state uses its power to act out resentments against oppressor groups. There will be more hatred and more political instability.
Thus, at least two possible outcomes may await America: despotism if hate speech advocates fully have their way or rebellion if they do not. On the one hand, the obedience of a free people to the goals beneath such laws is not produced through the kind of compulsion prescribed. If laws repress speech slowly, the nation will make of citizens mindless subjects incapable of political judgement and suited to being ruled by the state or by a triumphant marginalized group acting through it. On the other hand, free citizens, while still living with the memory of political liberty, will come to despise this new order and may well rebel against it. In such a rebellion, a new fierce spiritedness could be born that judges democracy and equality to be contemptible and grotesque ideals. An unstable mixture of the two is imaginable.
In the coming years, the public should be prepared for so-called moderate voices who in time may grow friendly to speech regulation and claim that America would be even more American if it enacted hate speech laws.REF Moderate voices, however, are moderate only insofar as their desire for immediate peace blinds them from soberly judging what awaits the nation.
Courageous and patriotic politicians must fight for the freedom of speech by reminding the public of its purpose and the consequences of losing it. Many of todays elites have already been at least partly convinced of the need to outlaw hate speech, and in late democracies throughout the world, the will of the majority is more and more disregarded by them. But public jealousy of free speech and anger at possible future usurpations, along with other possibilities, will be the only imperfect barriers that in the long run may protect this right.
Arthur Milikh is Associate Director of and Research Fellow in the B. Kenneth Simon Center for American Studies, of the Edwin J. Feulner Institute, at The Heritage Foundation.
Posted: at 2:55 pm
Frustrated over the current state of affairs in the country, a Butuan City salesman turned to Facebook to express his sentiments, calling the President crazy and an assh*le in Bisaya. Then came the arrest.
On May 13, 2020, police officers went to Reynaldo Orcullos home and arrested him without any arrest warrant. Orcullo was charged with cyberlibel under the Cybercrime Law.
For citizens who still aspire for a democratic Philippines governed by the rule of law, the recent spate of warrantless arrests of people expressing dissenting views online should be disconcerting. Under our constitutional order, no citizen should be prevented, or worse, arrested for merely expressing personal sentiments on government matters and public officials. A citizens commentary on public affairs is constitutionally protected even if the language used is discourteous. (READ: [PODCAST] Law of Duterte Land: Pandemic and the great wall of free speech)
Libel in a nutshell
The Revised Penal Code defines libel as the act of publicly and maliciously making an imputation that tends to dishonor or discredit of a person. If you make a public accusation that puts a person in a bad light, its presumed that the accusation was made maliciously, even if the accusation is true, and you may be held liable for libel unless youre able to prove that the accusation was made in good faith.
Libel vis--vis political expressions
However, if an opinion is made on the qualities or performance of a public official in relation to official duties, the expression is examined beyond the confines of our libel laws. In other words, expressions of a political character are treated differently under our law.
The Constitution declares that the Philippines is a democratic state where sovereignty resides in the people. Hence, the people enjoy the fundamental freedoms of speech, of expression, and of the press, as well as the right to petition the government for redress of grievances. The freedom of speech belongs as well, if not more, to those who question, who do not conform, who differ. It is freedom for the thought that we hate, no less than for the thought that agrees with us.
The Constitution also holds that public office is a public trust; public officers are accountable to the people at all times. As a consequence of these constitutional guarantees, political speech, which includes commentaries on public matters and public officials, is afforded special protection. In the hierarchy of protected expressions, political expression occupies the highest rank. The wide latitude people enjoy in expressing themselves ensures that the debate of public issues will be dynamic and robust. It also ensures that the people will be able to hold power to account.
Political speech is a direct exercise of the peoples sovereignty. Considering the special constitutional protection afforded to political speech, the Supreme Court has repeatedly explained that a defamatory opinion against a public figure is not libelous unless there is actual malice. A remark directed against a public figure in relation to public matters is a privileged expression.
This principle was enunciated early on in our judicial history, as seen in the landmark case of US v Bustos, where the Supreme Court explained that public officers may suffer under a hostile and an unjust accusation because a public officer must not be too thin-skinned with reference to comment upon his official acts. Public policy and the welfare of society have demanded protection for public opinion.
A citizen who publicly accused a barangay chairman of land grabbing and illegal gambling was found innocent because even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice. A tabloid article that scathingly accused a DTI official of misdeeds was deemed privileged because [t]he conduct, moral fitness, and ability of a public official to discharge his duties are undoubtedly matters of public interest[.]
Of course, just like any other right, the right to make defamatory expressions towards public officials isnt absolute. As previously mentioned, such expressions are not privileged if made with actual malice. Unlike in regular libel cases, when a political comment is made, there is no presumption of malice; malice must actually be proven.
Actual malice exists when a statement purporting to be a fact is made with the authors full knowledge of its falsity or with reckless disregard of the statements truthfulness. Mere inaccuracy or even falsity in a statement does not constitute actual malice. There must be an ulterior, deliberate motive to damage a persons reputation.
In the cases that adjudge defamatory expressions on public officials as libelous, the expressions involved are mostly malice-laden journalistic works that are made out to be factual reports even if the author knew of the reports falsity or was so reckless in determining the reports accuracy. For example, the Supreme Court believed that there was malicious intent on the part of an author to malign the character of a certain Customs official accused of corruption because the author himself admitted that he had no real knowledge of the accusations and that no in-depth research was conducted beforehand.
However, when a citizen expresses a purely personal opinion calling a certain public official crazy as a political commentary on current events, there is absolutely no malice there because the utterance is not meant to be a matter-of-fact statement. If the comment is a mere opinion inferred by the person from factual events, it is immaterial that the opinion is mistaken. No matter how wrong or idiotic a persons opinion is, the comment remains to be just that simply an opinion. There can be no libel unless the author was deliberately lying or was so reckless to think that he/she was telling the truth. (READ: Police file complaint vs Makati resident for resisting arrest, cursing cops)
In criticizing a public official by calling him/her buang, there can be no libel because, in the first place, the person does not intend to assert a factual truth; it is merely a personal feeling or sentiment. Freedom of speech protects impolite speech as well.
It is also wrong to argue that calling a high public official buang is unprotected speech because of the irreverent use of language. Free speech protects not only polite speech, but even expression in its most unsophisticated form. Insulting words are not libelous per se, and abusive words, however ill-natured, are not libelous in the absence of malice. The privileged nature of political speech is not defeated by the mere fact that the communication is made in intemperate terms.
Therefore, the citizens political commentary may be vulgar, unpleasant, satirical, humorous, respectful, or even bland all the same, the political expression is protected by the right to free speech.
Is this part of our new normal?
The increasingly trite phrase new normal refers to the lifestyle change brought about by the COVID-19 pandemic the strict observance of social distancing and hygienic practices, working from home, etc. But with the recent crackdown on online dissent, in addition to other reported violations of human rights, we are now confronted with this unsettling question will the violation of constitutional freedoms be our new normal as well? (READ: [ANALYSIS] Duterte crushes free expression amid pandemic)
In these perilous times, aside from looking out for each others health and well-being, our vigilance should extend to ensuring that our fellow citizens constitutional rights are respected. The liberties of one are the liberties of all; and the liberties of one are not safe unless the liberties of all are protected.
What we need now is mass testing and contact tracing, not the tracing of online critics. Rappler.com
Leonardo M. Camacho is a lawyer in the public sector and teaches law at a university in Manila. The author's views are solely his own.
See the original post here:
[ANALYSIS] The right to call the government crazy - Rappler
How a 20-year-old student put the spotlight on Australian universities’ cosy relationship with China – The Guardian
Posted: at 2:55 pm
On Thursday morning Drew Pavlou, a 20-year-old activist from Brisbane, sent an urgent email to the vice-chancellor of the University of Queensland, Peter Hj.
Attached was a two-second video of Pavlou, a student representative on the UQ senate, blowing the VC a raspberry.
The inflammatory bit of theatre explains a lot about Pavlou, who was last week described as the most famous undergraduate student in the world.
Pavlou faces expulsion from the university in relation to his provocative activism, which is focused on the Chinese government, its human rights record and the suppression of democracy in Hong Kong.
The sandstone institutions reaction to his undergraduate stunts has only served to intensify scrutiny and bring international attention to the universitys links in China.
Pavlou has been labelled a separatist by a Chinese diplomat and an anti-China rioter by state media outlet the Global Times; lauded by free speech advocates and written about by the Wall Street Journal, the Washington Post and Foreign Affairs.
My friends often say youve shitposted your way to international incidents, Pavlou says.
I love satire. I had a sort of satirical thing going on. Its like they cant handle it or dont recognise it.
Im a 20-year-old. Why does Peter Hj even care about me? Why does the university even care about me? I dont understand why they are scared of someone like me.
In April, the university tabled a 186-page brief of allegations against Pavlou, including that he prejudiced the reputation of the university by criticising and mocking its relationship with China.
Guardian Australia has reviewed a summary of the misconduct charges, which include claims his conduct was discriminatory, bullying and abusive.
Most of the allegations relate to clearly satirical stunts and his anti-Beijing activism: posing outside the vice-chancellors office wearing a Hazmat suit, or promoting a fake Confucius Institute panel discussion about why Uyghurs must be exterminated.
UQ has now hired two separate top-tier law firms to engage with Pavlou. One is acting as a de facto prosecutor in the disciplinary case. The other threatened the student with contempt of court proceedings this week for attempting to cite documents in his defence that had been obtained under subpoena in a separate legal matter.
On Wednesday, Pavlou stormed out of a disciplinary hearing decrying it as a kangaroo court. No verdict has been handed down but the student told Guardian Australia he is already preparing a supreme court of Queensland appeal, with the high-profile free speech advocate, barrister Tony Morris QC, in tow.
On 24 June last year, a Hong Kong democracy protest at the university was crashed by a pro-Beijing group, many of whom could not be identified as enrolled students.
Video of the incident shows Pavlou involved in an altercation, after first being set upon by the counter-protesters. He is knocked to the ground. The police are called.
The aftermath of that event largely set in motion what followed: an increased focus on the universitys relationship with China, and Pavlou escalating his activism.
Emails released by the university this week show on the evening of the brawl, a deputy vice-chancellor sent a message to the Chinese consulate in Brisbane to explain how it had handled the situation.
Two days later the Chinese consul-general in Brisbane, Xu Jie, released his own statement praising the spontaneous patriotic behaviour of the pro-China members of the crowd, and effectively, Pavlou claims, accusing him of anti-China separatist activities a capital crime in China.
Recently prior to the incident, the university had made Xu an adjunct professor, but issued no public announcement.
Have a think about the contrast, Pavlou says. [The vice-chancellor] has allowed this guy to remain at the university, after applauding violence on campus.
But its apparently me who has put their reputation at risk.
Pavlou subsequently sought a court order, similar to a restraining order, against Xu, who he claims endangered him. That case is ongoing.
The University of Queensland, one of the prestigious group of eight institutions, has arguably the strongest ties to China of any in Australia. Before the coronavirus pandemic about 40% of its international cohort about 7,000 students in total were from mainland China.
Hj was, until recently, a consultant to Beijings global Confucius Institute headquarters known as Hanban and a member of its governing council, which is responsible for more than 500 institutes operating in universities and schools across the world.
UQs Confucius Institute was one of several to renegotiate its contract with Hanban, amid foreign influence concerns. The ABC has revealed the Chinese government has co-funded at least four courses at UQ.
Last month under parliamentary privilege, the Liberal senator James Paterson revealed Hj had received a $200,000 bonus based partly on success in growing the universitys relationship with China.
The universitys chancellor, Peter Varghese, told Guardian Australia the university had always been open about its links to China.
[The universitys relationship with China] is completely above board, Varghese says. I dont think there is anything the university is doing vis-a-vis China that in any way conflicts with the core values of universities.
This sort of shock and horror that there are a large number of Chinese students in Australia I find rather curious.
The important thing for Australian universities is that they remain true to their foundational values as a university; those include academic freedom, freedom of speech, rights to peaceful protest.
At the end of the day, students who come to Australia to study are coming to a liberal democracy to study in. I dont see any evidence that discussion of human rights issues vis-a-vis China is somehow silenced or sort of muted in Australian campuses.
A spokeswoman for the university says disciplinary matters were initiated in response to complaints, and were guided by the UQs processes and values.
The claim that an ongoing student disciplinary matter is politically or financially motivated is simply not true.
We have a responsibility to ensure that all students and staff feel that they are able to express their opinions not just those with the loudest voices. Holding different opinions is part of everyday life at university thats what we must continue to protect and stand for.
What is important to recognise is that free speech does not absolve us from our responsibilities to ensure other members of our community, including vulnerable people, are not intimidated or vilified.
The university takes our duty of care to students and staff seriously. Our values are not sport, they are not satire and we cant ignore them if that is more convenient. They define who we are and what we stand for.
Pavlou identifies with the political left, though many of his growing band of supporters are libertarian and conservative.
When praised by Pauline Hanson, Pavlou welcomed her support and suggested the One Nation senator back it up by fighting to protect the human rights of all Muslim refugees imprisoned and tortured by our government in Australia. He didnt get a response.
Im not easy with people using me and my activism as a stick to beat China with, Pavlou says. I am uneasy when people refer to me as anti-China, I fundamentally reject anti-Chinese racism.
He is almost shy, polite and soft-spoken in person; a contrast to some of his more inflammatory social media posts and other stunts.
In October 2019 he posted a shirtless photo of himself challenging Hj to wrestle naked in the great court. When the university announced at the outset of the coronavirus pandemic it would sell cheap care packages to students in need, Pavlou began a competing fundraiser to donate essential supplies for free.
He gives his $50,000 stipend as a university senator to charity.
Pavlou says the complaints against him have long moved beyond a matter of whether he will be expelled; what remains at stake is how much damage will be done to the universitys reputation in the process.
On Thursday, after sending Hj the raspberry, Pavlou followed up with another email. In it he explained the Streisand effect, where the attempt to suppress information only serves to garner further publicity.
Its a suicidal path, Pavlou says. Theyve tried to expel me but in the process completely drawn attention to the extent of the universitys relationship with China.
Does he want to be expelled now, to drag the process out?
The way I would word it is Im trying to do them slowly, like Paul Keating said.
Theres got to be a bit of sport in this for everyone.
Posted: May 11, 2020 at 11:25 am
Medical workers put on protective gear in a hospital in Moscow. (Pavel Golovkin / AP Photo)
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Tatiana Voltskaya, poet, Radio Svoboda journalist, and member of the St. Petersburg PEN Club, is facing criminal charges under a new provision of the criminal code addressing fakes that went into effect last month.Ad Policy
Public dissemination of known false information on circumstances that represent a threat to the life and security of the public. The charges stem from an interview she conducted in which an emergency room doctor spoke about the lack of medical personnel and respirators in St. Petersburg hospitals. In a separate incident around the same time, Dr. Natalya Trofimova, who told the press (including the leading independent newspaper Novaya Gazeta) that there were inadequate supplies of personal protective equipment, was fired from a hospital in Leningrad Oblast.
News from regions throughout Russia of warnings, reports, and other persecution of journalists, bloggers, medics, and active users of social networks under the new law is flowing into human rights organizations and the Mass Media Defense Center. The impression is that investigative agencies are ready to write up a report on anyone who expresses an opinion or distributes information that does not agree with the official point of view, Galina Arapova, director of the MMDC and a board member of Article 19 said. The new law criminalizes so-called fakes. Moreover, it extends not only to the media but to any groups discussing the pandemic. Today this provision is the main problem.
Elena Milashina is one of the journalists being defended by the MMDC. She had written an article for Novaya Gazeta about the persecution of people infected with the coronavirus in Chechnya. The next day Ramzan Kadyrov, the head of the republic, responded on Instagram, calling the publication a fake and threatening retaliation. This is not the first time Novaya Gazeta journalists have been threatened. Milashina is a young colleague of the famed reporter Anna Politkovskaya, who was working for the newspaper when she was killed in October 2006. More than 100 human rights activists and public figures wrote to the head of the Investigative Committee of the Russian Republic to start a case about this threat. PEN-Moscow, the Union of Journalists and Media Workers, the Council on Human Rights, and the EU called on Russia to investigate and protect the journalist. MORE FROM Nadezhda Azhgikhina
The law and order agencies do not always respond adequately, said Galina Arapova, of the MMDC. In February, Milashina was attacked in Chechnya, and the Investigative Committee still has not reacted to her request to open a criminal case. This position creates a dangerous precedent for impunity.
Russia is not the only country that has passed legislation and measures temporarily limiting freedom of expression in connection with the virus. However, Russias new limitations fell on well-tilled ground: According to the MMDC and other experts, more than 25 laws and regulatory documents limiting freedom of speech and the work of journalists have been passed in recent yearsusually quickly and without public discussion. New initiatives in the coronavirus era show that the attack on freedom of speech and civil rights is entering a new phase.
The new proposals include mandatory registration of mobile telephones with the factory International Mobile Equipment Identity number beginning in 2021, which would also apply to people who bring smartphones from abroad. Officials explain that the measure was conceived out of concern for the public; it will be easier to deal with stolen phones. Theres also a drafted version of a law that would give police almost unlimited powers, including the right to search cars without a warrant.Current Issue
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Grigory Yavlinsky, leader of the Yabloko Party, has spoken out against the coming digital slavery with concrete proposalsincluding the creation of a public commission to control the states use of digital technology. He considers this a priority task.
Personal safety and even human life in a pandemic depend on truth as much as on proper medical decisions, according to Syndicate-100, the new consortium of independent Russian media with such members as Ekho Moskvy radio, Novaya Gazeta, Altapress, and Dozhd.
Today the independent press needs public support more than ever. Human lives are the price of every stifled independent publication. This is no metaphor. It is reality, said Syndicate-100 members in their appeal. The appeal is not directed to the authorities but to their audience, and that is important.
Many people in isolation have become more critical of the governments handling of the pandemic and are showing solidarity in social networks and everyday activities. People are volunteering and supporting one another through the difficult times. And many regional media outlets have removed paywalls.
I recently asked Svetlana Alexievich, winner of the 2015 Nobel Prize in Literature, if she saw similarities between the pandemic and the accident at the Chernobyl nuclear power plant in April 1986. Yes, she said, but Chernobyl was a regional disaster and the pandemic is a global problem that requires global rethinking of many basic things about our life.
The coronavirus pandemic is a challenge to all nations. New ideas and practices are needed to adapt to the changing world, and there are available options, including solidarity and mutual aid. An option for Russians is to stand together to demand civil freedoms, truth, and real dialogue in society. Its an opportunity to build a better future.
Translated by Antonina W. Bouis.
Posted: at 11:25 am
The acrimonious split of Masha and Ronnie Shak ended up where many divorces do these days on Facebook.
As the proceedings unfolded, Mr. Shak offered a running commentary on social media, shared with the couples rabbi, assistant rabbi and members of their synagogue, court documents show.
He created a GoFundMe page entitled Help me KEEP MY SON. He called his ex-wife an evil liar. He illustrated the posts with a video of their one-year-old son, and told their friends to unfriend her.
That was until a probate court judge banned Mr. Shak from posting on social media about his divorce, a common practice known as a nondisparagement order.
As important as it is to protect a child from the emotional and psychological harm that might follow from one parents use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of restricting speech, Justice Kimberly S. Budd wrote in a 13-page ruling.
Jennifer M. Lamanna, a lawyer who represented Mr. Shak in the appeal, called the ruling a game-changer because family and probate judges in the state frequently give such orders, and treat violations as contempt of court, carrying severe penalties.
There are thousands of these out there, which is why this is, for Massachusetts purposes, a landmark ruling, she said. People ask for them routinely and they are just handed out.
She said the orders, used for decades to control disparaging speech, have been expanded in recent years to focus on social media.
Under such orders, she said, my client could write a nasty letter to everyone he knows, but hes not allowed to put it up on social media. You can whisper in your synagogue, make nasty remarks about your ex-wife, but you cant put it up on Facebook.
Ms. Shaks attorney, Richard M. Novitch, said the ruling had an immediate, negative effect, prompting Mr. Shak to resume his postings on social media. Within the last 24 hours of the Shak case being issued by the S.J.C., hes right back at it, blowing up on social media, he said. Theres nothing that stops him.
While Mr. Novitch called the decision constitutionally sound, he said that common sense would suggest that children should be insulated from the combat between parents.
It will give license to a lot of bad actors to say what they want, regardless of where and when and the circumstances, he said.
The case underscored the role social media can play in modern divorce, as dueling parties try to win support from their circle of acquaintances.
Shortly after filing for divorce and seeking to remove Mr. Shak from their shared home, Ms. Shak filed a motion to prohibit him from posting disparaging remarks about her on social media. Two family court judges complied, with the second, George F. Phelan, issuing an order preventing both Mr. and Ms. Shak from posting any disparagement of the other party on social media until their son reached the age of 14.
Judge Phelans ruling prevented both spouses from using four specific expletives, as well as other pejoratives involving any gender, noting that the Court acknowledges the impossibility of listing herein all of the opprobrious vitriol and their permutations within the human lexicon.
It also banned the parents from posting photographs of their son in poses the judge considered inappropriate.
The court finds that the fathers posing, taking and posting of the photo of the parties child (then less than one year old) with a cigarette in his mouth was in poor taste, even if intended as a joke, and causes the Court to question the fathers maturity, the judge wrote.
But Judge Phelan also put the order on hold, to be reviewed on constitutional grounds by the Supreme Judicial Court. And this week, the court found it unconstitutional.
An order preventing someone from carrying out a certain kind of speech, known as prior restraint, is legal in the United States when the threat of damage caused by that speech is compelling. But though the state does have an interest in protecting children from being exposed to disparagement between their parents, it is not grave enough to justify restricting freedom of speech, the ruling said.
The ruling noted that one spouse, if offended by the others speech, has the option of suing for defamation or seeking a harassment prevention order. It also noted that the judges ruling does not apply to voluntary nondisparagement agreements.
What are people with common sense going to do? Theyre going to go out in the hallway and reach an accord in which each agrees not to disparage the other, said Mr. Novitch, Ms. Shaks attorney. It will be based on the agreement of the parties, not on judicial fiat.
Ruth A. Bourquin, a senior attorney from the American Civil Liberties Union, the co-author of an amicus brief supporting Mr. Shak, said she was relieved by the Massachusetts Supreme Judicial Court ruling. Were so grateful that the S.J.C. reiterated the first amendment principles, and recognized that they applied here, she said, comparing social media to the new town square.
Thats what it is, she said. Just because its bigger doesnt mean we can say that the rights of free speech dont apply. Having a government actor say you can say this, and not say that, is a somewhat scary alternative.