Free Speech is Bigger than the Law: Scalzi Edition

One topic that I think needs increased attention is the difference between public and private devotion to free speech. John Scalzi helpfully provides a springboard by posting some some articulated points on the topic that I disagree with. It’s a list of 10 points to do with freedom of speech and how people use the term, and it’s an example of a lot of what I think is wrong with this particular debate.

Some excerpts:

  1. In the United States (at least), “Freedom of Speech” is a legal term of art, and means a specific thing. … If you use the term incorrectly, you may be corrected, or thought ignorant and not qualified to argue the point.

Well, it’s certainly true that in the US "Freedom of Speech" is a legal term of art, but that’s not all it is. It’s also a culture of respecting people’s privilege to say things you disagree with – and expecting them to respect yours. So, for example, if a newspaper says that it respects "freedom of speech" in an effort to attract readership, that is not merely an affirmation that Congress is constitutioanlly prohibited from passing laws abridging the right to free speech! What they mean by that is that they will only fight speech with speech. They will not, among other things, refuse to publish an article merely because they disagree with the conclusion.

  1. Replace “Freedom of Speech” with “Censorship” in point one. Proceed forward.

Same thing. As a legal term of art, "censorship" means exactly what Scalzi thinks it does: it’s censorship when the FCC won’t let you say "fuck" on the airwaves, but not when a left-leaning newspaper doesn’t want to publish your fawning review of Atlas Shrugged. But again, there’s also a colloquial use of "censorship" that goes beyond the legal term of art, and it means, essentially, abusing your position as a content gatekeeper to keep inconvenient ideas off the table. For example, Scalzi’s indulging in what most people would understand to be fairly described as "censorship" in the selective way in which he deletes comments on the linked post that attempt to define "political correctness." Now, it’s his blog, and so of course he’s not infringing on anyone’s legal rights in deleting their comments. But he is being deceptive in pretending to hold an open discusson about a topic that he brought up while actually doing nothing of the kind. You can see this in action for yourself: simply scroll through the comments and you will find a number of comments discussing the definition of "political correctness" in contravention of Scalzi’s request that people not do that. What they all have in common is that they’re not saying anything he disagrees with. Some of the comments that you’ll find deleted were also discussing the definition of "political correctness" but defined it in a way that Scalzi didn’t like. Selective deletion based on the level of one’s agreement with the comment rather than the established guideline of not discussing said topic is "censorhip" in the popular parlance, even if it isn’t in violation of the First Amendment.

  1. If you conflate editorial standards and procedure with issues of freedom of speech and censorship, particularly when you are able to, say, post whatever you like on a web site you control, you may not be taken seriously.

That’s true, of course. Just as when you say you are holding a discussion of something and set some groundrules for that discussion which you proceed to selectively enforce, people may call you a "censor."

  1. If you conflate the ability to say what you want, how you want, with an immunity from criticism or consequence of the speech, you are likely to be surprised.

Right. Just as if you delete any comment that is critical of you just because it is critical, you are likely to be labeled a censor.

  1. If a petition is created that you are asked to sign on to, it makes sense to do due diligence to make sure the particular issue that the petition is designed to address is, in fact, an actual issue.

Yes it does. The petition he’s referring to (read it here) is, however, addressing an actual issue, and the people who signed it knew what they were doing.

  1. Likewise, if you sign a petition because you believe the petition addresses a high-level issue of concern to you, but the text of the petition itself (including various publicly-accessible drafts) is poorly-written, offensive, and contains several basic errors of fact and logic, you should not be surprised when your name and reputation are attached to the worst parts of the petition, rather than the high-level issue you intended to address.

No objections there.

  1. As a basic rule, petitions should be drafted by a competent writer who serves your agenda, not his own.


  1. “Political Correctness” is a catchphrase which today means one of two things. The first is, “I have done no substantial thinking on this topic in at least twenty years and therefore anything I say past this point cannot be treated with any seriousness.” The second is “It is more important for me to continue my ingrained bigotry than it is for you not to be denigrated or offended by my bigotry, because I am lazy and do not wish to be bothered.”

Um, no, not even close. "Political correctness" refers to an easily identifiable form of political piety that attempts to enforce social norms not widely shared by the population and which places heavy faith in the enoforcement of conversational norms as a vehicle for social change. So, for example, pretending to be more offended than you actually are when someone uses the word "gay" to mean "lame" for the purpose of discouraging that person from using that word in that way in the future out of a belief that this will help advance the acceptance of homosexuality is "politically correct." It does not mean that anyone who objects to your so doing is a bigot, or is otherwise someone who hasn’t thought through their opinion.

  1. If in your rhetoric you deploy the existence of a friend with certain political/social/racial characteristics to shield you from criticism of your rhetoric, you should be aware that a) it doesn’t work the way you intend, b) it makes your rhetoric more offensive, not less, c) your need to deploy this erstwhile friend to deflect criticism, likely without their consent, implicitly signals the weakness of your rhetoric.

I generally agree with this, though I suspect Scalzi knows that given the current political climate, it is sometimes necessary for people with certain opinions to do this to avoid outright dismissal of their claims, and the reason that works is because certain names do work like a talisman on certain segments of the population. This is not to the credit of those segments of the population, who would do better to think for themselves.

  1. The ability to express one’s self is ideally tempered with understanding that how one chooses to say a thing — and whether one chooses to say it at all — is often as important as the fact that one can say it. People of good will can and do have varied points of view; people of good will can and do argue and debate, sometimes strongly, about events and topics important to them. Choosing words wisely is not censorship or an impediment to free speech. What it can be is a way to make sure one’s intentions are understood clearly and cleanly.

Choosing words at all is not censorship. Censorship is when you’ve chosen words and expressed them and a gatekeeper deletes or replaces them – as Scalzi does on his blog. The larger point is true to the extent that one’s counterparty is being honest and reasonable. But this is, of course, why Scalzi wants to pretend that "political correctness" is a vague term when he knows very well that it isn’t (see point (8)) – because it frequently happens that people pretend to take more offense than they’ve actually taken (if indeed they’ve actually taken any at all) for dishonest, if sometimes well-intentioned, purposes. For this reason, expressed "feelings" aren’t always a reliable standard for determining whether a person has understood a point or whether they’re actually offended by it. Sometimes they’re simply defending themselves against having to respond to a point that’s inconvenient for them. In these cases, it can be better both for the nominally "offended" counterparty as well as for the climate of discussion in society as a whole to ignore such protestations and make the tradeoff in favor of clarity rather than sensitivity.

All total, I think this is an excellent negative image of an important topic: the difference between legal "free speech" and the "free speech culture." "Free speech," as Scalzi says, technically just means that Congress can’t pass laws that strike particular opinions from public discourse. But there’s another strain of thought that values the culture that restriction is trying to promote over and above its legal basis. "Free speech culture" is a voluntarily-adopted ethic that rules certain tactics out of bounds. It requires one to, for example, respond to thoughtful criticisms of one’s positions with contentful justifications, rather than by deleting the criticism (as in the case of a blog owner) or mere name-calling, or by poisoning the well, or any other number of responsive strategies which seek to avoid or shut down discussion or otherwise shirk one’s own burden of proof. Scalzi is probably right that "free speech" isn’t the best term for this ethic, but pretending that he doesn’t understand why these two concepts so often get conflated is just so much more deception. For lack of a better term, "free speech" is what we use to describe this ethic, and despite what John Scalzi and Ken White would have you believe, there isn’t actually very much confusion about how to practice it. For example, if you write a post that wilfully misdefines "political correctness" and then follow that up by saying that "political correctness" is a hopelessly vague term, and then you open up that post to comments, it actually really is against the spirit of free speech to tell people that they can’t contradict you on the supposed vagueness of "political correctness," even if you do this by pretending to enforce the (arbitrarily defined) topic of discussion. The convention is that anything you included as a salient point in your post is "on topic" (especially when it forms an enumerated point of its own in your list!), and the truth is that "political correctness," as a term, is either vague or not independent of what your opinion on the subject is. The rules of the game say not to pretend to hold a discussion when what you want is an echo-chamber, because that is a type of fraud. There is, of course, nothing in the the law to say that Scalzi can’t do these things, but the law is not the whole of the culture, nor the whole of how people interact with each other.

What’s at stake here, really – and the reason why I increasingly think this is an important libertarian talking point – is the notion that the personal and the political are not the same thing. The state is not the only or final arbiter of what’s right and wrong, nor would we want it to be. What the law says is relevant to a point, but beyond that point, voluntary human organization takes over – and just because you legally can behave in a certain way is but a small part of an acceptable justification for actually behaving that way.

The irony of protestations like Scalzi’s – and Ken White’s – is that social reality is what it is regardless of what they want it to be. "Politically correctness" means something very specific whether or not anyone is allowed to say that on John Scalzi’s blog. Tom Perkins’ point about liberal rhetoric has some measure of validity regardless of the number of Ken Whites who call him "stupid." Robert Silverberg signed the petition he signed because he agreed with it (he has a bit of a history of standing up for free speech actually), regardless of Scalzi’s attempts to imply otherwise. Scalzi is talking about the linked petition whether or not he says his post is about "nothing in particular." Most of all, points that are relevant to a discussion are relevant – or not – at the pleasure of the topic, not the moderator.

One of the great lines in cinema is when Yuri Zhivago, having been called away from work to treat a case of starvation on the downlow that the new soviet government wants kept quiet for political reasons, complains to the comissar saying:

ZHIVAGO: You had no right to call me from work.
COMISSAR: As a Soviet deputy, I —
ZHIVAGO (interrupting): That gives you the power, not the right.

That’s an important distinction, and one that the Scalzis and Ken Whites of the world don’t seem to fully understand. As someone in Scalzi’s comment thread points out, the wording of the First Amendment implies that anyway: "Congress shall make no law … abridging the freedom of speech." The preexsiting freedom of speech, one presumes. The one We the People have and create for ourselves. Telling the government it can’t abridge our free speech rights doesn’t mean a whole hell of a lot if we’re just going to enforce public pieties by other means. So let’s not.

6 thoughts on “Free Speech is Bigger than the Law: Scalzi Edition

  1. Nice post. One nitpick:

    It’s also a culture of respecting people’s privilege to say things you disagree with – and expecting them to respect yours.

    Emphasis mine. I think you probably meant right, not privilege.

  2. Also, didn’t he do something very like this a while ago? That is, claim a post was about nothing in particular, even though it was very much about something in particular, and thereby give himself the license to not link to any of the relevant posts by other people. I can’t remember what the previous issue was, but I feel like it also involved a list.

    So, what’s the offensive petition that this Scalzi post is not at all actually about despite the fact that it’s about petitions and whatnot?

    • The petition is linked in my post – though not very conspicuously. Do an apple-F for “The petition he’s referring to.”

      I probably should have written “right” there rather than “privilege,” but I put “privilege” deliberately to emphasize that I understand that people don’t have the same protections against censorship in the private sector. If you’re in my house and you say things I disagree with, I can kick you out if I like. To the extent I believe in a culture of free speech, I *won’t*, but I have that option, unlike the government.

    • Yes, Scalzi pulls that trick CONSTANTLY, almost always to do with Vox Day. In this case, as it happens, it doesn’t really have that much to do with Vox Day (he did attempt to sign the petition in question, though I think the circulated version doesn’t have his name on it) – but the example you’re thinking of could have been anything, really. Scalzi does this about once a month.

  3. Really great post Joshua. It explores some topics I’ve given a lot of thought to recently. The key point for me is the concept of cultural understanding of our freedoms versus the code of law which protects our freedoms.

    Specifically whenever someone proposes to add a law or collection of laws to the ledger which will clearly have the effect of restricting some freedoms understood to belong to the individual in order to protect the interest of some collective (however defined), I almost invariably insist that our cultural norms place the stronger burden of proof on the laws’ advocates than on those who oppose such laws. Left liberals and other statists who default to embracing many Marxist assumptions can pretty much be reliably counted on to believe exactly the opposite and contradict that basic cultural understanding.

  4. Completely agree. There’s some rudimentary understanding of “burden of proof” in place with them (well, with the left liberals anyway, not with the marxists), but the bar is so low it’s meaningless. I’m talking about the whole “if it saves even one child” meme: their concept of tradeoffs is shaky.

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