Different kinds of speech

Legal speech (otherwise known as First Amendment speech).  Ethical speech.  Practical speech.  It seems to me that people (politicians, news media, activists, and the general public – all guilty) have been conflating these different categories of speech.  You may think that the distinction is simply semantics.  Or you may not think you are doing it at all.  But the difference is really important so please read on.

First, legal speech.  I am a huge fan of the way the US has established our freedom of speech. The default is that you can say anything you want.  The exceptions are very carefully tailored and limited to the cause of immediate threat.  You can’t yell “Fire!” in a movie theater only because people could get hurt in the stampede to the door.  You can’t directly threaten someone standing in front of you “I am going to kill you with this knife I have in my hand” because they may feel an immediate threat of great harm.  But if you post something on a social network “I am going to kill you sometime” that is protected because it is not possible to prove that it wasn’t “trash talking” and we have a high barrier.  The recipient could contact the police to investigate and if they find that the threat was real, only then is there a crime.  We may make exceptions with kids because of the greater psychological harm of threats, the unknowability of how they will react or if they would think to call the police, and because of the harm of bullying. But we are very careful to limit each of these exceptions to only the gravest cases.

Then there is ethical speech.  If you violate ethical speech guidelines, you can’t be arrested for it.  You also should not be assaulted for it.  The police shouldn’t shut down your magazine.  Protesters should not physically block entrance to your store.  But they should refuse to do business with you. They should use their own free speech rights to criticize and condemn your speech.  Private organizations can expel you from their establishments or memberships.  The media should condemn your speech.  Unethical but legal speech is common. It includes racist or otherwise bigoted speech.  It includes lying that does not rise to legal prohibitions like libel or slander.  It includes insulting speech that serves no greater purpose.

Finally, we have practical speech.  This is speech for which the benefits exceed the costs.  We recognize the costs, but feel that the benefits make the speech worthwhile.  Speaking truth to power.  Parodies of bureaucracy that may be insulting but draw attention to a larger principle. 

The Charlie Hebdo case is a good demonstration of the difference.  Their cartoons were legal.  The cartoonists should not have been arrested, shut down by the police, or shot by extremists.  Whether their cartoons were ethical would depend on which cartoon you refer to.  Some of them could fall into the category of being insulting, but with a valuable enough messages to be worthwhile and therefore ethical.  Anyone who agrees can buy the magazine or just leave them alone.  Those who feel otherwise can protest.  The cartoonists themselves should answer to the public through their revenue stream and to their conscience.  

Other Charlie Hebdo cartoons were simply too insulting to have enough value to be ethical, Their practicality would depend on how they did on ratings, publicity, or clickbait.  But they are still unethical.  On the other hand, they are still legal.  The cartoonists should not be arrested, assaulted, or accosted.  But people should speak out against the unethical ones, even if they bring in enough profit to be practical in the eyes of the publication management. 

The debate on whether the US Government should use the term “radical extremism” or “Islamist extremism” when referring to ISIS.  It is legal either way.  But which is ethical and which is practical?  If avoidance of the term “Islamist” creates a practical value in that it does not alienate friendly Middle Eastern populations, then that is a valid consideration (as I discussed here).  There is also a great discussion of the issue here.