About half a year ago, I published Free Speech and the Paradox of Tolerance (along with this follow up) as debates raged on about whether alt-right darlings Richard Spencer and Milo Yiannopoulos should be given a public platform (such as media interviews and college speaking events) to promote their unabashedly racist, xenophobic, sexist, etc., views. In that essay, I focused on a fatal flaw of free speech absolutism (the belief that we should not place any restrictions or limits on speech, regardless of content or context), namely, that people often use their “free speech” to thwart other people’s “free speech.” Citing philosopher Karl Popper, as well as my own personal experiences being coerced into silence as a young transgender person, I instead argued that we — as individuals and institutions — should strive to tolerate all forms of expression except for those that espouse intolerance toward others.
In the wake of the violence that unfolded a week and a half ago at the “Unite the Right” rally in Charlottesville, and last weekend’s protests in Boston that drowned out a white nationalist-led rally there, and with other white nationalist rallies scheduled to take place where I live (the San Francisco Bay Area) next weekend, I figured that this would be an ideal time to pen the long-promised companion piece to that essay. Due to its length, I am splitting it up into two posts. This piece (“Refusing to Tolerate Intolerance”) is concerned with other inconsistencies and hypocrisies that plague the free speech absolutist position, particularly when contemplating hate speech. The second part (“Hate Speech versus Call-Out Culture”) will provide a framework for thinking through how we might balance concerns about intolerance expressed toward marginalized groups with claims about how “call-out culture”/“identity politics”/“political correctness”/etcetera may be getting out of hand.
A note regarding nomenclature
In this essay, I will be using the terms “alt-right,” “white nationalists,” “white supremacists,” and “Nazis” interchangeably, despite the fact that people who identify with these labels may hold somewhat differing views. From my perspective, the one thing that all of these movements and individuals do have in common (and what I am concerned with here) is that they all engage in condemning, deriding, intimidating, and dehumanizing minority groups as part of their strategy to assert white Christian straight male dominance in America.
There is no such thing as “free speech”
One of the most lucid critiques of free speech absolutism can be found in Stanley Fish’s 1994 book There’s No Such Thing as Free Speech: And It’s a Good Thing, Too. The thrust of his argument (laid out in chapters 8 and 9, and summarized in this interview) is two-fold.
First, Fish shows that, despite it being frequently referenced as an aphorism or shibboleth, none of us actually believes in comprehensive “free speech,” as there will always be some expressions of speech that we (as individuals, or as a society) refuse to tolerate. I have come to think of this phenomenon as constitutive intolerance, because it is always occurring (often invisibly) in the background, and it essentially gives shape to our understanding of what constitutes or counts as “free speech” (i.e., speech that we are willing to tolerate). As Fish puts it in the aforementioned interview: “free speech is what’s left over when you have determined which forms of speech cannot be permitted to flourish. The ‘free speech zone’ emerges against the background of what has been excluded.”
Fish provides examples of prominent free speech absolutists such as John Milton (who believed that we should not extend free expression to Catholics) and Nat Hentoff (who felt similarly about anti-Semitic speech) to illustrate the ubiquity of this constitutive intolerance. Fish goes on to say: “everyone has such a trigger point, which is either acknowledged at the beginning or emerges in a moment of crisis.”
This constitutive intolerance was on display in the recent downfall of former Breitbart senior editor Milo Yiannopoulos. As I discussed at length in my previous essays, Yiannopoulos has a long history of expressing blatant racism, Islamophobia, xenophobia, misogyny, and transphobia, and a penchant for doxxing, harassing, and intimidating marginalized individuals. Despite these despicable acts, many groups — including his own Breitbart News, the American Conservative Union (who invited him to speak at their 2017 CPAC conference), and Simon & Schuster (who offered him a huge book deal) — championed Yiannopoulos’s right to “free speech,” while many others took a “I don’t agree with what he says, but I defend his right to say it” position. That is, until audio/video clips surfaced wherein Yiannopoulos suggested that teenage boys are old enough to consent to sex with older men, at which point everybody dropped him like a hot potato. It seems that, for these groups and individuals, condoning statutory rape is where “free speech” ends and intolerable speech begins.
A second point Fish makes — one which haunts many legal cases and debates regarding “free speech” — is that nobody would dare say that we are entitled to “freedom of action.” Sure, we generally have the freedom to do as we wish, but only up to the point where our actions infringe upon the rights and autonomy of others. I may be free to drive a car, but if I run through a red light, or drive way over the speed limit, or purposefully crash my car into a crowd of counter-protesters (as one Nazi did in Charlottesville), then most people would agree that I have crossed a line and should be sanctioned accordingly.
Given these facts, the only way that the ideal of “free speech” makes any sense is if we presume that “speech” is entirely distinct from “action” — that is, speech is imagined to be an entirely abstract collection of utterances and ideas that are incapable of directly harming other people or infringing upon their rights. And frankly, this view of speech is naive and flat-out incorrect.
We do not speak to simply listen to the sounds of our own voices. We almost always speak with intention, with the hopes that our words will have tangible consequences. If I were to say, “Mark Lilla and Angela Nagle are completely clueless about ‘identity politics’,” or “You should read my essay Prejudice, ‘Political Correctness,’ and the Normalization of Donald Trump instead,” I am attempting to (ever so slightly) nudge the world in my preferred direction. If you were to express agreement or disagreement with my statements, you would be doing the same. Most of us would agree that all of these statements fall under the realm of tolerable self-expression — aka, “free speech” — not because our words have no intention or impact (they do), but rather because these particular claims do not impinge upon anyone else’s autonomy or rights.
In contrast, if I were to make up salacious lies about Nagle and Lilla (i.e., defamation, false statements of fact), harass or threaten them (i.e., fighting words), encourage a mob with pitchforks to show up to their book readings (i.e., incitement), or post large swaths of their books on my website (i.e., copyright infringement), most people would agree that those actions (i.e., my speech) have/has crossed a line and should not be tolerated. Indeed, this is precisely why we have exceptions to protected free speech, because the right to “free speech” often bumps up against and/or undermines other people’s rights.
So to summarize, whenever somebody says something controversial or potentially harmful, rather than reflexively shouting “BUT FREE SPEECH!” we should instead ask ourselves whether the speech acts in question potentially infringe upon the rights or autonomy of other people, and we should engage in an honest and serious discussion about what expressions of speech we are willing (or unwilling) to tolerate.
“Free speech” can be used to suppress other people’s “free speech”
Free Speech and the Paradox of Tolerance was primarily concerned with a fundamental problem that free speech absolutists routinely ignore or refuse to seriously consider: People often use speech acts to suppress other people’s freedom of speech. As I detailed in that piece, back when I was growing up in the 1970s and ’80s, transphobic beliefs and expressions were so rampant in our culture that it was simply not safe for me to come out as transgender. Even in the early-to-mid-’90s, when I first began to participate in trans communities, we gathered in undisclosed locations and vetted people who wanted to attend our meetings for fear of what might happen if we were ever publicly discovered. (Harassment? Ostracization? Potentially worse?) Unfortunately, what we experienced back then was not in any way specific to transgender people. Throughout human history, dominant majority groups have often freely expressed hatred and bigotry toward minority and marginalized populations with the intended effect of silencing them and making it unsafe for them to peaceably assemble or have a collective voice.
“Hate speech” is a catch-all term to describe language that promotes hatred or hostility toward people based upon their race, ethnicity, nationality, religion, gender, sexual orientation, and possibly other characteristics. Numerous countries outside of the U.S. characterize hate speech as incitement and/or defamation, and as such, it falls outside of the realm of protected free speech. In the U.S., free speech absolutists are always quick to point out that we have no First Amendment exception for hate speech. But of course, the First Amendment only applies to our government and the laws it may pass; it does not prohibit individuals and institutions from refusing to tolerate hate speech. In fact, your school, workplace, the businesses you patronize, the Internet platforms you utilize, and so on, all likely have some kind of non-discrimination policy in place that sanctions hate speech. (Whether these policies are carried out effectively is beyond the scope of this essay.) These non-discrimination policies tacitly acknowledge that the proliferation of hate speech in these arenas would likely have the very real and chilling effect of silencing minority voices and viewpoints.
The standard free-speech-absolutist response to hate speech is to simply call for “more speech” to counter it. More speech can be helpful in situations like the recent “Unite the Right” rally in Charlottesville, where far more U.S. citizens condemned all the Nazi slogans, symbolism, and slurs than supported them. Although it must be said that the turnout of hundreds of white nationalists, the firearms they brandished, and the terrorist act one of them committed, are likely to make some people hesitant to speak out against them in the future.
But what about the suppression of my speech as a young trans person? Back then, trans people had some allies, to be sure, but they (like us) constituted a tiny minority of the population. And I can tell you first hand that the “more speech” strategy actually does far more harm than good when greater numbers of people hate your minority group than accept you. In such cases, calls for “more speech” simply enable and promote hate speech against you, rather than mitigating it.
Calls for “more speech” also suffer from the misconception that we, as a society, are all in the midst of some grand rational debate, and that marginalized people simply need to properly plea our case for acceptance, and once we do, reason-minded people everywhere will eventually come around. This notion is utterly ludicrous. Prejudice and discrimination are not driven by rationality or reason. They are primarily cognitive biases. (If this at all surprises you, then there’s a whole field called Social Psychology that I’d like to introduce you to . . .)
I have been an activist most of my adult life, and I’ve had a handful of occasions where a speech that I have given, or an essay I have written, turned someone from being suspicious of trans people to accepting of us. A handful. But in the vast majority of cases, people who are antagonistic toward trans people will see what they want to believe, rational arguments be damned. The purpose of trans activism (and I’d argue that this applies to all social justice movements) is not to persuade die-hard transphobes (and bigots more generally), but rather to convince those who already accept us to refuse to tolerate transphobia (and other forms of marginalization) in their communities. This is an important point that I will return to (and which will make even more sense) later in the essay.
Calls for “free speech” are never politically neutral
Having laid that groundwork, I now want to revisit the Milo Yiannopoulos debacle.
As previously discussed, Yiannopoulos has a history of not only expressing and encouraging racism, xenophobia, misogyny, and transphobia, but also routinely inciting his followers to dox, harass, and intimidate (thereby silencing) members of those marginalized groups. For these reasons, earlier this year, students and activists attempted to “no-platform” Yiannopoulos from his upcoming college speaking engagements — they did this by petitioning college administrations and protesting the events (i.e., they exercised their right to “free speech”). Many mainstream media pundits, however, decried these actions as an assault on Yiannopoulos’s “free speech,” and/or on “free speech” more generally.
Then the audio/video clip of Yiannopoulos seeming to condone statutory rape surfaced, leading CPAC to cancel his speaking appearance, Simon & Schuster to cancel his book deal, and he was forced to resign from Breitbart News. In other words, he was no-platformed by those organizations. Tellingly, all the media outlets and pundits who had previously portrayed anti-racism/sexism/etc. activists as a threat to “free speech” were suddenly conspicuously silent. I did not see a single op-ed or complaint about how Breitbart News’s, CPAC’s, and Simon & Schuster’s actions constituted a threat to “free speech.”
There are several lessons to be learned from all this.
First, as I discussed earlier, this demonstrates the existence of constitutive intolerance: All those pundits who took a “I don’t agree with what Yiannopoulos says, but I defend his right to say it” stance are in fact hypocrites, because they clearly do not believe that the right to “free speech” should be extended to, or be defended in the case of, people who condone statutory rape. I have absolutely no qualms with people who refuse to tolerate Yiannopoulos’s comment to this effect, or who choose to no-platform him because of it. But I must point out that, by drawing the line there, these pundits and institutions were implicitly saying that everything else that Yiannopoulos has said and done — his doxxing, harassing, and intimidating marginalized individuals both online and during his talks — all of that is just fine. Absolutely tolerable. Within the boundaries of normal discourse, in their eyes. (btw, I’m looking at you, Kurt Eichenwald.)
Second, if constitutive intolerance does exist (it does!), and if we all have a tipping point at which we will stop defending a person’s right to say certain things, then that means that calls for “free speech” are never neutral. Rather, they signify support for the thing that is being said. To be clear, defending someone’s “free speech” is not tantamount to agreeing with what they have said wholeheartedly (although research shows that there is generally a good correlation between the two). But what I am saying is that, if you go out of your way to vocally defend someone’s “free speech,” it indicates that you believe that what they have said is just fine. Absolutely tolerable. Within the boundaries of normal discourse. (For past and future Milo-free-speech defenders, that means that you are okay with this and this and all these other things.)
There is an obvious corollary to this: If activists (of one stripe or another) utilize their “free speech” to express disapproval or dissent toward another person’s “free speech” — e.g., by complaining online, writing letters to the editor, signing of petitions, participating in protests, organizing boycotts — and you go out of your way to accuse those activists of assaulting or undermining the basic tenets of “free speech,” then this likely signals that you disagree with, or are outright intolerant toward, their cause. It also demonstrates that you are a “free speech” hypocrite who believes that some people are entitled to “free speech,” but other people are not.
Third, it is worth mentioning that Yiannopoulos did not state that he had committed statutory rape. Rather, he simply suggested that, in certain instances, statutory rape may not be as horrible as everyone thinks. Therefore, everyone who believes that Yiannopoulos’s comment was beyond the pale and worthy of no-platforming him seems to understand (at least in this particular instance) that words are not merely abstract mystical entities — rather, “speech” has consequences (it’s an “action”), and as such, it can cause real harm.
Furthermore, Yiannopoulos did not encourage listeners to commit statutory rape, he just suggested that statutory rape might not be such a bad thing in certain cases. Thus, everyone who was (rightfully) appalled by his suggestion clearly recognizes not only that harmful behaviors (such as statutory rape) should be stigmatized and sanctioned, but also that attempts to de-stigmatize and normalize harmful behaviors (as Yiannopoulos’s comments seemed to do for statutory rape) should also be stigmatized and sanctioned (i.e., we should not tolerate them).
If you believe all this to be true regarding statutory rape, then I ask you: Why wouldn’t this same line of reasoning be true for blatant expressions of racism? Or anti-Semtism? Or misogyny? Or transphobia? All of these forms of marginalization (as well as others) are attempts (often quite effective ones) to suppress or silence already disenfranchised voices. Hate speech is spoken with the intention of denying these individuals’ autonomy, rights, and humanity. So if you are really and truly pro-“free speech,” shouldn’t you refuse to tolerate these blatant attempts to silence others?
The slippery slope is slippery on both sides
Hopefully by now, I have convinced many of you that we should not center these important debates around the amorphous concept of “free speech” — a platitude that none of us comprehensively believes in. Instead, we should focus on the more pragmatic matter of tolerance: What acts (speech or otherwise) should we — as individuals, as institutions, as a society — be willing to tolerate (or not tolerate)? I will share my thoughts on this subject in the second installment of this post (“Hate Speech versus Call-Out Culture”). But here, I want to address (and hopefully lay to rest) one final bastion of free speech absolutism: the slippery slope argument.
Slippery slope arguments are generally considered to be logical fallacies — here is an academic paper detailing why. The TL;DR version is that slippery slope arguments presume that we are incapable of distinguishing between different things. For instance, opponents of same-sex marriage often rely on this tactic, claiming that its legalization will eventually lead to the legalization of polyamorous marriages, or incestuous marriages, or human-animal marriages. However, each of these things is different from one another and from same-sex marriage, and each can (and should) be considered separately based on its own merits (or lack thereof, as the case may be). Slippery slope arguments are logical fallacies because they attempt to shift the debate from one thing (legitimizing same-sex relationships) to some other more distasteful or horrifying thing (legitimizing bestiality).
The free speech absolutists’ slippery slope argument typically goes something like this: “If we censor transphobic speech (or other forms of hate speech), then what’s next Julia? What if people start banning things that you want to say?”
For starters, who said anything about “banning” or “censoring”? Free speech absolutists love to toss around those terms because they evoke an Orwellian dystopia of massive government suppression, which I am most certainly not advocating. What I am proposing does not in any way involve “banning” or “censoring” or government intervention. I am talking about me (and potentially other people) making the personal decision to refuse to tolerate blatant and purposeful expressions of transphobia (and other expressions of hate speech). I can choose to express this intolerance in a number of ways, depending on the seriousness or severity of the situation: I can argue with people who make such comments and challenge them on their beliefs, refuse to associate with them, publicly critique or condemn them, alert other people about their behavior, try to convince others to not tolerate them, and/or I can refuse to tolerate people who choose to tolerate people who express intolerance toward me. All of these actions fall well within my rights — they are expressions of “free speech,” if you will.
Second, this slippery slope argument attempts to shift the conversation from whether we (as individuals) should refuse to tolerate transphobia (and other forms of hate speech) to some imaginary scenario where the “thought police” come after people for saying relatively benign things. The fact that free speech absolutists always seem to want to shift the conversation in this manner is a tacit admission that their “we should tolerate hate speech” stance does not hold up on its own merits.
But for argument’s sake, I will entertain the question: Whenever I am asked, “Well, what if they start coming after things that you want to say?” my standard reply is: Welcome to my fucking world! Ever since I was a child, my speech (with regards to my trans identity, experiences, and perspective) has been stringently and stridently policed. Even today, whenever one of my transgender-themed writings makes waves outside of activist and progressive circles (as happened with these two recent pieces), I get bombarded with hate speech, libelous accusations, and occasionally threats. (btw, if you visit those pieces, you will not find the most vile comments, because people flag them and Medium subsequently makes them disappear — one example of what refusing to tolerate intolerance can look like). To be clear, these particular comments do not deride me for being “incorrect” or a “bad writer” (although sometimes people say those things); rather they express hatred toward me because I am a trans woman. They are intended to intimidate and silence me (as well as all other trans people) because of who I am (who we are), not because of anything that I have said or done (other than my merely existing and refusing to go away).
Two years ago, when I wrote about an attempt by students at Cardiff University to no-platform Germaine Greer — who holds aggressively transphobic views; she even tried to get a colleague of hers fired for being transgender — a few people asked me, “How would you feel if students tried to no-platform you?” My response was (surprise, surprise) that it has happened to me. In the mid-’00s, I was invited to perform a spoken word set about my transgender identity and experiences, but conservative students threatened to boycott the event if I was allowed to participate. Given that pressure, the organizers rescinded the invitation.
Most free speech absolutists have a huge blind-spot that they stubbornly refuse to acknowledge: They have generally lived lives where virtually everything that they think or say falls within the realm of tolerated discourse. Perhaps a few of their opinions or word choices are considered by some to be “unsavory” or “edgy,” but none of it dooms them to the status of abomination or pariah. So they are unable to see constitutive intolerance — the fact that some people and ideas (such as trans identities and perspectives several decades ago) have been excluded from that discourse a priori. Then, when the status quo eventually shifts, and things that people could previously freely say (such as making transphobic remarks) are suddenly met with protest, it feels like an attack on “free speech” to them. And they imagine themselves as the “good guys” defending “free speech” against the “bad guys” (i.e., people using their “free speech” to protest transphobic remarks), when in reality, all of us are doing the exact same thing: Making personal choices and pronouncements regarding what we are willing (or unwilling) to tolerate, in an attempt to slightly nudge the world in our preferred direction.
People who have this blind-spot are only capable of seeing a two-sided debate — pro-“free speech” versus anti-“free speech” — and a slippery slope that goes in a single direction — from an ideal utopia where all speech is supposedly free, to a dystopian nightmare where our speech is heavily policed. But the world looks very different to me. Speech has never seemed “free” to me — it has always clearly been restricted by social conventions and power dynamics. Like most writers and public figures — including the ones who are quick to pen “BUT FREE SPEECH!” op-eds — I do sometimes worry that something that I write or say will be taken out of context, or be subjected to call-outs or protests (it has happened to me on more than one occasion). But I am not so self-absorbed to imagine that such protests constitute an attack on my “free speech” — whether misguided or righteous, such protests are simply expressions of other people’s “free speech.”
And while other writers and public figures seem primarily concerned with the possibility that they might be protested or no-platformed for things that they say, I (and other marginalized people) worry more about being protested and no-platformed because of who I am (who we are) — our identities, bodies, sexualities, and other aspects of our person that we did not choose/cannot change, and which (most importantly!) do not infringe upon other people’s autonomy and rights.
Over the last few years, mainstream media outlets and pundits who sport this blind-spot have complained about how “political correctness” and the “internet outrage machine” are having a chilling effect on “free speech,” such that comedians, college professors, columnists, and respectable people everywhere feel like they cannot even make a joke, recommend a book, publish an article, or share an opinion on social media without being bombarded by call-outs and protests. If you believe this to be true — that call-outs and protests are having a chilling effect on “free speech” and we must do something about it — then how can you possibly ignore hate speech, which serves the express purpose of intimidating people into silence?!
If you are concerned with “call-out culture” but not hate speech, I’d argue that you are either a hypocrite, a bigot, or quite possibly both. And I won’t waste any more time trying to convince you that you are wrong. You are free to exit this essay now. Don’t let the door hit you on the way out.
For the rest of you who recognize that “call-out culture” may be a problem, but so is tolerating hate speech, and who are now confused and/or curious about how we might balance these competing forces, I encourage you to continue on to part two: “Hate Speech versus Call-Out Culture” (which I will link to as soon as it’s posted).
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