July 20, 2009

Free Speech: Threat, or Menace?

Hatched by Dafydd

This is more or less an open thread. I solicit your opinions in the comments; don't disappoint me!

Resolved: There is no general "right" to nonverbal "speech," and indeed, some should be banned.


Freedom of speech has always historically meant the freedom to express ideas in words; the modern fancy that any action whatsoever can be considered "speech" if it conveys, however indirectly, a message is unsustainable in logical argument.

Mere outrage is not by itself a message; at best, it's a medium... and freedom of speech does not imply freedom of every medium of expression. For example, does freedom of speech include the "right" of two high-school students to strip naked in the classroom and have sex? But they may thus be expressing the "message" that they are in love. And does it include "selling" property that doesn't belong to you, without the real owner's permission? But that may express your belief that all property should be distributed equally among everyone.

Speech literally means speech -- talking, words, sentences -- not anything that moves anyone to do or think anything. Granted, some nonverbal communication might be accorded the brevet status of speech; "flipping the bird," for example, or maybe even something as rude as mooning a speaker you hate. But those are privileges, not rights, and they can be allowed or forbidden on the whim of the authorities... so long as those authorities are even-handed in their judgments and don't use their power to advance one cause while restricting or retarding another. (But that can be a separate cause of action -- you can go to court and argue that the government is abusing its power to suppress nonverbal speech.)

Finally, there are some images and other nonverbal communications that are so vile and degrading that they literally harm people -- permanently and irrevocably -- either through encouraging horrific and ghastly behavior, or simply via psychological scarring and moral numbing. The victims include children, of course, but often adults as well.

Consider snuff films, even those that do not actually kill or harm any of the actors (adult or child), but create an amazingly realistic depiction of such sexual violence and murder. If we cannot ban a film, for example, that graphically depicts the sodomistic rape of a child (even if faked) -- and revels in such behavior, depicting it as normal and pleasurable -- then we are no longer a civilization, just a gathering of atavistic voyeurs and beastial bipeds.

At least "mere words" haven't the power to move people towards the soulless night of absolute amorality, as graphic or other nonverbal communication can. Can we not at least restrict "freedom of speech" to actual speech, words, which can be countered... and allow communities to ban some types of nonverbal "speech" that simply cannot be counterprogrammed, no matter how many wholesome, family-value programs are made available in response?


Sometimes, mere words are not sufficient to express a powerful, important idea in its fullness. For thousands of years, human beings have used nonverbal media -- everything from music to art to sculpture to dance to what today we would call protest and passive resistance -- to communicate and advance ideas that simply cannot be adequeately conveyed by words... either because the authorities won't allow the words to be spoken, or because the idea itself is ineffable.

For only one example, can religious experience be reduced to mere words? Suppose some government banned the Catholic mass -- but allowed a transcript to be printed and distributed. Freedom of religion aside, would that satisfy the intent of freedom of speech?

Great Britain at one time banned the singing of Irish revolutionary songs in the six counties (Ulster) in northern Ireland. Presumably, one could recite the words, but not sing them. Is that an acceptable limit on freedom of speech? Who, besides the government itself, benefits from such censorship of music?

If Iran bans the act of displaying an American flag on Iranian soil, doesn't that violate Iranians' freedom of speech? Could anything, words or actions, be more eloquent in expressing how a Persian might feel about what the mullahs have done to Iran, and the fights they have picked, than hoisting the flag of the freest country on Planet Earth, which is of course Iran's Great Satan?

Some ideas are ineffable: They cannot be fully described verbally, but only approximated; they cannot be properly argued or advanced with mere words. If we allow governments to ban nonverbal communication, they will inevitably use that authority to suppress those ineffable ideas that threaten their own hegemony or power (such as freedom, liberty, democracy, and disfavored religions), while blithely allowing nonverbal "speech" supporting those ineffable ideas that the government likes (like obedience to authority, or the singular divinity of Allah). That is certainly the pattern in every country that suppresses nonverbal "speech"... suppression is never "even-handed!"

Our only defense to vile and degrading nonverbal speech is to produce moral and uplifting speech (verbal and nonverbal) to combat the former. It can never be right for government to decide what types of speech, verbal or nonverbal, shall be allowed; suppressing the one is no different from suppressing the other: Both boil down to thought control, which is just another word for tyranny.

No matter how irredeemable some communication is, suppressing it comes at too high a moral cost.


My thoughts on this topic are driven in part by this story, but also by some of the bizarre and nauseating "installations" and "performance art" that has littered the fine arts for some years now... works that serve as defining examples of charlatanism, such as segmented human corpses, sexual self-mutilation, and the antics of people like, e.g., Lisa Suckdog.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, July 20, 2009, at the time of 6:31 AM

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The following hissed in response by: snochasr

I disagree with the statement as a whole. I do not believe there is a general and untrammeled right to even verbal free speech, the old "fire in the theater" thing being one of many sensible restrictions. I think such simple logic applies even further to non-verbal communication simply because it is NOT speech. It is communication by non-verbal means, and reasonably controlled by all manner of laws on non-verbal behavior. The only restriction on these legal limits should be that of reasonableness.

In your particular example, the question ought to be whether government should be in the business of telling people what films or art or what-have-you that they may produce or view. I agree with the author that some films ought to be banned and should never have been made in the first place, but who am I to decide, and by what right can I prevent something so obviously disgusting from posing as "art"? I think a rating system and lots of free speech-- real speech including widespread condemnation and the nonverbal speech of not paying to see such filth-- is the only antidote.

The above hissed in response by: snochasr [TypeKey Profile Page] at July 20, 2009 6:22 AM

The following hissed in response by: Mr. Michael

There is no general "right" to nonverbal "speech," and indeed, some should be banned.

Isn't that what is called a false dichotomy? You present us with two choices, both of which are incorrect.

More correctly: There IS a right to nonverbal speech. And indeed, some should be banned.

Just as Snochasr points out, the right to verbal speech is not absolute. Just so, the right to NON verbal speech is not absolute.

Non verbal speech is powerful. If Dafydd were POTUS, I could not make a threatening nonverbal gesture towards him. However, the Government has no power to keep me from frowning upon his visage.

The balance between acceptable speech and unacceptable speech, verbal or non, must be struck, and that is what our Legislatures are for. As of now, they have decided that our Community can survive bad cinema. What our Community cannot survive is a Government that doesn't recognize our existing Right to frown.

The above hissed in response by: Mr. Michael [TypeKey Profile Page] at July 20, 2009 9:21 AM

The following hissed in response by: AD

You have the Freedom to Speak (in whatever form that exists, within the restrictions of encitement, slander, etc), and I have the Freedom Not to Listen.
We all have responsibilities that we should honor.

The above hissed in response by: AD [TypeKey Profile Page] at July 20, 2009 10:27 AM

The following hissed in response by: Geoman

Yes, freedom not to listen is an ignored part of freedom of speech, and it goes to the heart of the non-verbal component of speech.

The president can make a speech, but we are not required to listen. I can cover my ears with my hands, or leave the room. I can even protest his speech. But I can't stop him from talking, and he can't make me listen.

But, on the other hand. Some non-verbal speech should be banned. Perhaps Nazi salutes for example. Hanging nooses in trees. Non-verbal speech that assaults, that damages, that hurts others. Punching someone in the face is an example of non-verbal speech that is banned.

Where to draw the line? Beats me. Obviously touching is out. I guess when the non-verbal speech has a point or purpose other then to simple hurt and offend. Being pro something as opposed to anti something helps. Non-verbal speech that does not interfere with the rights of others (say blocking roads, or entrances to buildings) should be banned. I'd say verbal and nonverbal speech that interfere with others rights (shouting down an opponent, code pink's childish behavior) should also be banned.

Maybe the solution is just that simple. Exercising your rights should not interefere with others excercising their rights.

The above hissed in response by: Geoman [TypeKey Profile Page] at July 20, 2009 5:46 PM

The following hissed in response by: snochasr

Just to be clear, government can ban anything they like but they cannot prevent it. They can only penalize it after the fact. Thus part of the cure is to enforce the law where it is good and to break the law where it is wrong, accepting the consequences of doing so. That's what I find so annoying about demonstrators in general. They seem to assume that the right of free "speech" includes the right to commit all manner of transgressions against the rights of others.

The above hissed in response by: snochasr [TypeKey Profile Page] at July 20, 2009 6:29 PM

The following hissed in response by: Boss Mongo

I have no issues with unfettered "freedom of speech"--to include non-verbal communications, as long as we keep alive (or resuscitate) the doctrine of fighting words. You can and should be able to "say" whatever you want to me. However, you can and should be advised that there are some things you may "say" to me that will invariably lead to an ass-whuppin'.

The above hissed in response by: Boss Mongo [TypeKey Profile Page] at July 21, 2009 4:16 AM

The following hissed in response by: snochasr

One of the assumptions implicit in this argument is incorrect, which is that the Constitution was intended to protect ALL speech, when it is almost certainly to apply to political speech. Losing sight of that principle means that we now have found a right to dance naked and call it "art," while not being allowed to criticize a candidate 60 days from an election (McCain-Feingold).

The above hissed in response by: snochasr [TypeKey Profile Page] at July 21, 2009 5:53 AM

The following hissed in response by: jls

Phone rage leads to arrest here for Ohio man:

An Ohio man, fed up with deceptive junk mail, made the mistake of losing his temper while on the phone with a St. Louis company pitching an extended auto-service contract. Now he finds himself behind bars, where he is charged with making a terrorist threat.

Don't get excited when talking to a telemarketer?

The above hissed in response by: jls [TypeKey Profile Page] at July 21, 2009 9:40 AM

The following hissed in response by: Brett

Same remark I left at Hot Air:

The notion that there is no general right to non-verbal conduct has things precisely backwards in a system of limited government having specific enumerated powers. While it is doubtless the case that many human behaviors are destructive and socially undesireable, it is nonetheless up to the government to justify its regulation of individual conduct by reference to some power that the people have delegated to it.

Current ConLaw doctrine makes this a regrettably low bar in the normal case. Most human activities can be reached under the Commerce Clause authority of the federal government, or the general police power of state and local governments.

However, the Supreme Court has held, and I agree, that where human behavior is freighted with expressive content, the First Amendment operates as a limitation on government authority, and the bar for government regulation is much higher. Specifically, conduct that is intended to convey an idea or message that is likely to be understood by others may only be regulated only on a showing that the law furthers an important government purpose unrelated to the supression of expression, and is no more restrictive than necessary to achieve that purpose. I think that it is an appropriate balancing that permits truly important, content-neutral regulation while invalidating the authoritarian and picayune.

The above hissed in response by: Brett [TypeKey Profile Page] at July 21, 2009 11:02 AM

The following hissed in response by: AD

Geoman...you might want to revisit this part of your comment and perhaps edit it:

"...Non-verbal speech that does not interfere with the rights of others (say blocking roads, or entrances to buildings) should be banned. I'd say verbal and nonverbal speech that interfere with others rights (shouting down an opponent, code pink's childish behavior) should also be banned..."

What say you?

The above hissed in response by: AD [TypeKey Profile Page] at July 21, 2009 1:56 PM

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