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.
