Bad arguments about speech, made better
"Hate speech is not free speech" isn't the point you probably want to make.
Happy Monday, everyone. I’m here to write a little bit about free speech today. As this is a topic that comes up a lot, I even created a new section for it, called Speech Bubbles. This changes absolutely nothing on your end, but it helps me organize my own thoughts a little better.
Last week, I saw a tweet with an irritatingly-familiar refrain: “Hate speech is not free speech; it's hate speech.”
I understand the sentiment behind it. I really do. It seems like a neat way to argue, “Hey, I’m in favor of free speech, but not hate speech!” Sure. But I believe it’s wrongheaded, and I’ll explain a bit why.
Standard disclaimer that I am not a lawyer, obviously.
If you’re talking about “free speech” in the context of the U.S. Constitution’s First Amendment, “hate speech” is absolutely protected. In fact, there isn’t a legal definition of “hate speech” in U.S. law. This obviously varies from country to country, but when it comes to the U.S., that’s a settled matter (insomuch as anything is truly “settled” with the current Supreme Court, for what it’s worth). Yes, there are limits to the First Amendment, but those limits are extremely narrow (incitement, threats, “fighting words”). “Hate speech,” “lies,” and, whatnot, absolutely are protected by the First Amendment.
Now, let’s say that you’re not discussing the law. Let’s say that you’re discussing “free speech” as a principle. If that’s the case, why use a slogan that is both vague (what is “hate speech?”) and almost certain to get floods of responses from people that essentially amount to reciting a version of the previous paragraph? If you’re making a case about the very concept of “free speech,” you should start there.
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In 2018, I wrote an op-ed for The New York Times about free speech.
My argument in the piece dealt with the just-introduced policy of banning targeted misgendering and deadnaming1. I found a lot of the arguments against the policy to be extremely weak, and they mostly amounted to claims that misgendering trans people was essential to the “debate” over trans rights. As I wrote:
At The Guardian, Kenan Malik argued that banning misgendering will shut down debate on trans issues and strike a blow to free speech. But in fact, the content free-for-all chills speech by allowing the dominant to control the parameters of debate, never letting discussion proceed past the pedantic obsession with names and pronouns.
In short, my point here was that when the “debate” is focused entirely on what pronouns you use to describe someone or what name you call them, you can’t actually get to the things that are truly up for debate policy-wise. And isn’t that the whole point?
I made the argument that one of the reasons I tend to be hesitant to appear on TV alongside people arguing anti-trans points of view is that I worry that the person with the anti-trans views will veer the discussion off-track and turn it into a platform to lob personal attacks at me while ignoring whatever the real topic at hand was.
It’s not an unfounded fear, either. Back in 2015, a trans woman named Zoey Tur was on an episode of HLN’s Dr. Drew On Call. Tur was there to discuss ESPN’s decision to award Caitlyn Jenner the Arthur Ashe Courage Award at that year’s ESPYs. Along with Tur on this panel was Ben Shapiro. Rather than discuss the topic at hand, Shapiro used the platform to antagonize Tur, aggressively and repeatedly referring to her as “sir” on TV. At one point, Tur got so flustered that she put her hand on the back of Shapiro’s neck and told him to stop otherwise he’d be “going home in an ambulance.” Shapiro filed a police report against Tur.
Setting aside the pointlessness of having a discussion about whether Jenner was worthy of an award that most people probably didn’t know existed (for real, who cares?), the trainwreck of a conversation was exactly the type of fiasco I worried about happening to me. This led me to decline a number of media appearances and stay quiet when I would have otherwise spoken up. In short, misgendering and deadnaming were functioning as tools to chill the speech of trans people, myself included.
After the Times published the piece, I received a number of messages from people who either hadn’t read the story, only read the headline (which I didn’t write), misinterpreted what I was saying, or simply didn’t agree with me.
A common response was something along the lines of, “Oh, look at who needs a safe space! Look who needs to censor others! Look who is trying to shut down debate!” But that ignores the actual point I made. Let’s continue:
Aside from the harm it does to trans people, it also impedes the free flow of ideas and debate, in the same way that conservatives often accuse student protesters of shutting down speech on college campuses.
One of the more irritating-yet-consistent arguments conservatives and op-ed writers seem to love is the claim that protesting someone’s speech is anti-speech, a form of censorship in itself. This has been the basis of virtually every “campus speech debate” news story of the past decade. Because of those stories, I decided to frame my op-ed in that way.
Sometimes, as the logic behind the campus speaker argument would dictate, we have to set parameters on speech if we want to actually have a debate on the issues, which, in the case of trans people, are certainly not in short supply.
If people can acknowledge that sometimes rules need to be in place (example: you can’t have protesters literally shouting down speakers while they are trying to speak on campus) in order to uphold and protect free speech, then you can make the case that rules being implemented in other areas can also uphold and protect free speech. In this case, rules against deliberately targeting trans people with harassment in the form of misgendering and deadnaming. In broader cases, this means that it’s not “anti-speech” for, say, social media platforms to adopt rules against hate speech, some forms of misinformation, and so on.
Just last month, I wrote about what would happen if Twitter adopted Elon Musk’s version of “free speech,” in which anything that is legal to say can be said on a platform. It’s not great!
A platform with a total free-for-all approach to speech isn’t some new idea. It’s been tried. Over and over and over, it really has been tried. What ends up happening, without exception, is that these platforms drive away people who don’t like to wade through page after page of slurs, attacks, threats, and more. What Musk and his supporters want is a 4chan-type platform that has the user base of Twitter. Unfortunately for them, those two ideas are not compatible with one another. Turn Twitter into 4chan, and you’ll eventually lose the users; to keep the users, you need to keep some rules in place to protect the actual flow of ideas.
This whole section is a bit of a work in progress. Expect a bit more from me on it soon…
Out: “Hate speech isn’t free speech!”
In: Explaining why rules are needed to ensure people can share their points of view without chilling the speech of others.
“Freedom” by Rage Against the Machine
“Misgendering” is the act of referring to someone by the incorrect pronouns (i.e. calling a woman “he,” referring to a man as “her,” and so on). “Deadnaming” is the act of referring to a trans person by a name they no longer go by, usually meant as a way to delegitimize their identities (see: people who insist on referring to Caitlyn Jenner by her former name).