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16 responses to “What are the bounds of toleration in a academic institution? (Sam Clark comments)”

1. 

   Mike Jacovides

   June 11, 2014

   I guess I’ll respond, since no one else has.
   1. Blackshirts (or their equivalents) do beat people up in modern day democracies and the cops try to arrest them. It’s a sign of the strength of a democracy to draw the line of legality between odious speech and odious behavior.
   2. Bad speech does do a kind of harm. Prohibiting speech that authorities think is bad does another kind of harm. All things considered, the second kind of harm is worse. Permitting bad speech allows for occasions of its refutation, which invigorates the truth. Also, in many cases, the authorities are mistaken about what constitutes bad speech. Also: whatever other good arguments there are in On Liberty.
   3. What speech should be permitted should be a matter of democratic deliberation. The outcome of that deliberation ought to be that lots of speech should be permitted, since free speech is a really valuable thing.
   Having said that, I’d rather not have people yelling in my classroom. Or worse, yelling fire where there is no fire.

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2. 

   Matt Lister

   June 11, 2014

   I’m not a free-speech absolutist in any area, even in what I take to be core areas, such as political speech. But I think that Objection 3 above has to be wrong, at least as put. In the large majority of democratic countries, if “the bounds of toleration” are left up to “democratic deliberation” we will get support for views approved by the majority and little else. Does this mean that democratic deliberation should have no role in deciding what to tolerate? No- certain sorts of “time, place, and manner” restrictions are reasonably set by democratic decision making,at least, and perhaps others as well. But “the bounds of toleration”, perhaps especially for political views, seem to me to be exactly the sort of thing that has to be set, broadly, before democratic decision-making can be expected to give good results, at least in most cases.
   Note that this doesn’t always mean that we should include anti-democratic speech within the bounds of toleration. In certain circumstances I think such restrictions are or were likely justified. Consider restrictions on pro-Nazi speech in post-war Germany, or restrictions on holocaust denial in the same place and time. It seems plausible to me that those restrictions were necessary for democracy to be established at all. (I am much less sure they are still justified these days.) But the conditions that justified such restrictions seems unlikely to be realized in contemporary London, or so I’d think.

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3. 

   Philippe Lemoine

   June 12, 2014

   I’m the one to whom this view was ascribed, but I don’t understand why Sam presents this as a point of contention, since it seems clear to me that everybody including him agrees that harm is a necessary condition of using power to restrict speech. Indeed, nobody thinks that people should be able to say anything they want, and everybody thinks that people should not be able to say things which are likely to result in harm for someone. What people disagree about is how likely the harm must be for the restriction of speech to be justified and what kind of harm justifies that speech be restricted to restrict it.
   I think that, unless one is more or less explicitly encouraging people to attack someone’s physical integrity or damage his property, one should be free to say whatever one wants. I don’t see that as a necessary and sufficient condition of using power to restrict speech, for I not only think it’s impossible to give any, but it seems clear to me that any attempt to do so would have unfortunate consequences. I don’t think it’s a necessary condition, because I can think of circumstances in which it’s legitimate to restrict someone’s speech, even though he is not explicitly asking people to attack someone’s physical integrity or damage his property. In fact, I don’t even think it’s a sufficient condition, for I can think of situations in which someone is probably justified in explicitly asking people to hurt another person or destroy his property.
   But, as crude and imperfect as it may be, this rule at least gives a sense of how of how much, in my view, it takes before it becomes acceptable to restrict speech. Again, the difference between Sam and I is not that I think harm is a necessary condition of using power to restrict speech and he doesn’t, but that (roughly) I think speech should only be restricted when the threat to someone’s physical integrity or property is imminent and overwhelmingly likely, whereas he thinks that speech can be justifiedly restricted in many other cases. Notice that, in most of the cases where I think that speech can be justifiedly restricted, it will be pretty much uncontroversial that it should be, whereas in many of the cases where Sam but not I thinks that speech can be justifiedly restricted, it will be very controversial. On the other hand, in many of the cases where I think that speech cannot be justifiedly restricted, this will be controversial, whereas in most cases where Sam thinks speech should not be restricted, it will be pretty much uncontroversial that it should not.
   More generally, assuming some kind of utilitarianism, the higher you think the likelihood of harm should be before it becomes acceptable to restrict speech and the less comprehensive the class of harms which you think justifies a restriction of speech, the more likely you are to be right when you say that speech should be restricted, but the less likely you are to be right when you say it should not. Conversely, the lower you think the likelihood of of harm should be before it becomes acceptable to restrict speech and the more comprehensive the class of harms which you think justifies a restriction of speech, the more likely you are to be right when you say that speech should not be restricted, but the less likely you are to be right when you say it should. So, as I see it, the question is which is worse: to restrict speech when you should not or not to restrict it when you should?
   I think it is clearly worse to accept a view about freedom of speech that makes it likely that you will often restrict speech when you should not, rather than one that makes it more likely that you will often not restrict speech when you should. Indeed, history is replete with actual examples of harm done by restricting speech, whereas the examples that are given to illustrate the benefit of restricting speech are, by the very nature of what they are supposed to show, counterfactual and, I think, generally mistaken. For instance, people often use, as I take it Sam does, the example of the rise of fascism and nazism in the 20th century. (It is interesting, by the way, that communism is so rarely mentioned, but that’s another debate.) But I find it extremely naive to think that, had there been more restriction on freedom of speech at the time, it would have prevented the rise of those political movements and the harm that resulted. So, as I see things, the restriction of speech has a terrible track record in history, whereas there is no good reason to think that the absence of restriction has ever resulted in harms comparable to the ones caused by the restriction of freedom of speech.
   Another thing which I think is relevant is that, the lower you think the likelihood of of harm should be before it becomes acceptable to restrict speech and the more comprehensive the class of harms which you think justifies a restriction of speech, the more likely it is that people will attempt to extend the restriction of speech to things they find unpalatable. In other words, the more you say that the content of what is said should be taken in consideration, the more likely it is that speech will end up being restricted more than you would like to. This is an empirical claim you may disagree with, though I think there are plenty of examples in contemporary Europe, that shows how restriction of speech brings more restriction of speech and that it’s very difficult to control where things are going once you start on this slope. (At least this has definitely been the case in France and it’s not difficult to see why it should be so.)

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4. 

   Matt Lister

   June 12, 2014

   For instance, people often use, as I take it Sam does, the example of the rise of fascism and nazism in the 20th century. (It is interesting, by the way, that communism is so rarely mentioned, but that’s another debate.)
   It certainly influences my thoughts on this debate that, in the U.S., many of the most egregious cases of restrictions on political speech- cases where people went to prison, were deported, and had other very serious harms done to them- involved speech in favor of communism or socialism, and speech in opposition to war and/or the draft. These obviously bad laws were also quite popular and so likely supporter by “democratic deliberation” as it actually existed.

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5. 

   Philippe Lemoine

   June 12, 2014

   What I meant is that the rise of fascism and nazism in the 20th century is usually the example that people use to illustrate the supposed benefits of restricting freedom of speech. My point is that I don’t think more restrictive laws on freedom of speech would have prevented the rise of fascism and nazism. As for my remark about communism, I just wanted to note that if you think that people should not have the right to promote fascism because of the harm it can do, then you have at least as good a ground to ban the promotion of communism, given its historical record. Since I suspect that most people who are in favor of banning the promotion of fascism would not want the promotion of communism to be also banned, they should probably think more about the consequences of the kind of restriction on freedom of speech they advocate. I hope it’s clear that, as far as I’m concerned, I find restrictions of freedom of speech targetting proponents of communists just as unacceptable as those which target proponents of fascism.

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6. 

   Sam Clark

   June 12, 2014

   Thanks everyone, I’m finding this very helpful in thinking the issues through.
   I wish I’d distinguished between (a) objections against PL as such (my 3); and (b) objections against the way I saw PL being interpreted (my 1 and 2). As Philippe rightly says, a lot of the disagreement between us isn’t about whether PL is true, it’s about how to interpret ‘harm and the threat of harm’ – what counts as harm, and how much risk of it must there be? Philippe and others advocate a narrow interpretation of harm and a high bar for risk; I’m more inclusive about harm, and I disagree about the nature and extent of the risks we’re actually running.
   With that said, I do want to stick to my guns:
   (1) PL is about political organisation and recruitment, not just speech and discussion (because that’s what the discussion in the earlier thread was about). Successfully interfering with organisation and recruitment by paramilitary groups in Germany in the 1920s would have prevented a great deal of harm down the road. If you insist, as Philippe does, on preventing false positives at the cost of false negatives, I think you will sometimes risk too much harm. But this is a complex historical dispute which isn’t going to be solved in a comment thread.
   (2) To limit our interpretation of harm to ‘attack[ing] someone’s physical integrity or damag[ing] his property’ is to leave out of consideration huge, systematic harms to women, non-white people, LGBT* people, refugees, and others subject to various kinds of shaming, denial, silencing, domination, and oppression which aren’t just (the threat of) being punched in the face. Those are the kinds of harms (or call them what you like – ‘bad things’) I was concerned about in the original Nietzsche Club case. ‘Who gets to decide?’ is the important question, because typically in practice, it’s not the people subject to these bads, and those not so subject have tended to miss, ignore, or downgrade them.
   (3) Democratic deliberation isn’t equivalent to voting. It’s a decision process in which everyone affected gets a voice (using whatever tactics and institutions allow us best to approximate that ideal). And again, the consensus view that the bounds of toleration should include people seriously discussing whether women, non-white people, LGBT* people, refugees, etc. are second-class human beings, has not been decided in such a decision process – it’s been decided by people not subject to those threats, and is therefore illegitimate.

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7. 

   Matt Lister

   June 12, 2014

   Just to be clear, Philippe, I took myself to be agreeing with you, and adding further support for your claim, not opposing it. My apologies if my comment wasn’t clear.

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8. 

   bzfgt

   June 12, 2014

   “Since I suspect that most people who are in favor of banning the promotion of fascism would not want the promotion of communism to be also banned, they should probably think more about the consequences of the kind of restriction on freedom of speech they advocate. ”
   I wonder if that’s true…unless you mean “most philosophers,” in which case it seems more plausible.

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9. 

   r

   June 12, 2014

   As someone who is squarely in the PL camp on this one:
   In response to 2: I don’t think most defenders of PL assume a contentious discussion of harm, because I don’t think that most PL-types (should) think that harm is the relevant concept in restraining speech. Rather, the test is imminently lawless action: so I can advocate in newsletters for the legal confiscation and redistribution of the grain merchant’s plantation, despite the fact that this would undoubtedly harm him; what I cannot do is deliver a speech outside his mansion that incites the crowd to riot. And this seems to be how it has to be, because after all, ALL political policies worth talking about cause some harms to some people. The dual questions of (epistemically) what those harms actually are and (morally) whether that distribution of harm is defensible are questions we have to answer using the deliberative process, not questions that can be presupposed before we start.
   That leads into a response to 3: it is a prerequisite for both the epistemic and moral value of democratic deliberation that it be free and informed–otherwise the discovery process is constrained and the consent is not genuine. But for it to be free and informed it needs to be the case that alternatives are known and their discussion is allowed.
   Finally, with regard to the refrain (from Sam @6):
   “the consensus view that the bounds of toleration should include people seriously discussing whether women, non-white people, LGBT* people, refugees, etc. are second-class human beings, has not been decided in such a [deliberative democratic] decision process – it’s been decided by people not subject to those threats, and is therefore illegitimate.”
   I’m not sure if this is an empirical claim about the histories of actually-existing democratic societies, or rather if it’s meant to just be obvious a priori that no women, non-white, LGBT*, refugee, etc. would consent to allowing creepy fascists to be within the bounds of toleration. It may be plausible as the former, but I seriously doubt it as the latter. It would be presumptuous for me to try to speak for all of us, but at least this gay person thinks that creepy fascists should be within the bounds of toleration. My experience with my other gay & etc. friends is that they are much like everyone else–some of them are political liberals and some of them aren’t. I’ll grant that a non-negligible proportion of the anti-liberals are particularly vehement, partially on the grounds of their personal experiences, for reasons that are understandable. Nonetheless, it seem problematic to me to casually assume that the oppressed must naturally be anti-liberals. Many prefer liberalism instead.

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10. 

    Matt Lister

    June 12, 2014

    Democratic deliberation isn’t equivalent to voting. It’s a decision process in which everyone affected gets a voice (using whatever tactics and institutions allow us best to approximate that ideal).
    I figured that it was likely that you meant something other than the actual practice of democratic decision making as it has (or does) exist, but wasn’t sure. But now you’re just appealing to a (hypothetical) process of your own to decide what’s in or out, no different from what those you are opposing are doing. That’s fine, but you then need to make the argument, not just slap a nice sounding label on it and assume you get what you want.

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11. 

    Philippe Lemoine

    June 12, 2014

    While I’m very sympathetic to r’s defense of the view I was advocating, I doubt that it’s possible to completely do away with considerations of harm. There will be cases where speech cannot be said to result in immediate unlawful action, but should nevertheless be restricted, such as in the oft-used example of someone yelling “fire” in a crowded theater. But overall I think his defense of the view is very convincing and often much less confused than mine.
    In particular, I think it’s very important to keep in mind that, as r noted, any interesting policy will result in some harm for some people. Therefore, unless you say that speech should only be restricted when it’s obvious that it will result in immediate harm of a kind that cannot possibly be justified (e. g. when someone explicitly call people to murder any person they see wearing glasses in the street), you are in effect depriving the democratic deliberation process of its raison d’être, since you are preempting what its outcome should be.
    “PL is about political organisation and recruitment, not just speech and discussion (because that’s what the discussion in the earlier thread was about). Successfully interfering with organisation and recruitment by paramilitary groups in Germany in the 1920s would have prevented a great deal of harm down the road. If you insist, as Philippe does, on preventing false positives at the cost of false negatives, I think you will sometimes risk too much harm. But this is a complex historical dispute which isn’t going to be solved in a comment thread.”
    Again, I think it’s extremely naive to think that a more restrictive conception of freedom of speech would have prevented the rise of nazism, but I agree that this blog is probably not the place to discuss that. Even if we disagree on that, one thing is for sure, the harm supposedly done by the lack of restriction on freedom of speech is uncertain even with the benefit of hindsight, whereas the harm done by the restriction on freedom of speech can make no doubt.
    “To limit our interpretation of harm to ‘attack[ing] someone’s physical integrity or damag[ing] his property’ is to leave out of consideration huge, systematic harms to women, non-white people, LGBT* people, refugees, and others subject to various kinds of shaming, denial, silencing, domination, and oppression which aren’t just (the threat of) being punched in the face. Those are the kinds of harms (or call them what you like – ‘bad things’) I was concerned about in the original Nietzsche Club case. ‘Who gets to decide?’ is the important question, because typically in practice, it’s not the people subject to these bads, and those not so subject have tended to miss, ignore, or downgrade them.”
    I’m not sure you appreciate that this kind of diffuse, alleged, harms are so vague that, were they to be recognized as the sort of things which justify that freedom of speech be restricted (which unfortunately they increasingly are in many places), any serious debate would soon become impossible because there will always be a category of the population that will deem it unacceptable. I would like to repeat the point I already made above, that restriction on freedom of speech begets more restriction on freedom of speech, and that once you start down that road you don’t control anything. I also want to stress that this is not a hypothetical threat, such as the supposed threat of fascism, but that it’s actually happening in many countries right now. I think that, instead of constantly worrying about the fascist threat (which I personally find preposterous), intellectuals should read Tocqueville more and less 1984.
    “Democratic deliberation isn’t equivalent to voting. It’s a decision process in which everyone affected gets a voice (using whatever tactics and institutions allow us best to approximate that ideal). And again, the consensus view that the bounds of toleration should include people seriously discussing whether women, non-white people, LGBT* people, refugees, etc. are second-class human beings, has not been decided in such a decision process – it’s been decided by people not subject to those threats, and is therefore illegitimate.”
    Again, I think you are just ignoring the fact that, without the kind of freedom of speech I and others here are advocating, there can be no democratic deliberation since you are preempting what its outcome should be. (I think both r and Matt are making related points above.) I would also like to second r’s point that you can’t assume that every member of a minority is anti-liberal, though unfortunately I suspect most activists who claim to speak for them are.

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12. 

    David Wallace

    June 12, 2014

    I’m slightly surprised by how utilitarian this discussion seems to be. I for one want to identify freedom of speech as a major good in its own right – not something whose positive value can never be overridden (though I buy the PL-type view that the rule-utilitarian case for freedom of speech is very good) but something that has a strong intrinsic value over and above its utilitarian benefits.

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13. 

    e

    June 13, 2014

    Philippe Lemoine: “the harm supposedly done by the lack of restriction on freedom of speech is uncertain even with the benefit of hindsight, whereas the harm done by the restriction on freedom of speech can make no doubt.”
    Not on the most relevant notion of harm. The most relevant notion of harm is comparative between outcomes of restriction and non-restriction scenarios. On that notion the harm supposedly done by the lack of restriction and by restriction are both uncertain since in each procedure the comparison case is counterfactual.
    I have another, separate complaint. The notions of attack on “physical integrity” or “property damage” are diffuse and vague but we muddle through them anyway. Vagueness is then no objection to muddling through for other kinds of harms as well. For example imagine that factory F emits the toxic substance X. As a result one particle of X gets lodged in the lung of person P, thereby increasing P’s risk of cancer ever so slightly. Has the people controlling F harmed P? Does P have an enforceable claim to shut down F? If not precisely where on the spectrum from one particle of X to a dose of X that with full certainty produces lethal cancer in P does a harm to physical integrity appear? Vagueness, vagueness everywhere! We should drop the libertarian pretensions and muddle through as consequentialists.

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14. 

    Sam Clark

    June 14, 2014

    I lack energy and time to engage fully with the various responses above. With apologies for oversimplification, let me do something less than that and reply to some shorter, possible points of view:
    1. ‘Publicly asserting, discussing, meeting about, organising and recruiting round anti-egalitarian claims never does any harm’—this is a view I sometimes encounter, but it’s obviously silly, and thankfully I don’t see anyone above defending it. I wonder, though, about its relation to Philippe’s view that preventing such assertion etc. never does any good.
    2. ‘Publicly asserting etc. anti-egalitarian claims does some harm, but it’s a trivial harm always outweighed by the harm of preventing that asserting etc.’—this seems almost equally silly to me, but clearly many people don’t share that view, so here’s a counter-example: imagine (a) a group who get a transgressive frisson from saying ugly things, but who aren’t going to do anything more than gleefully say them, like a small child shouting ‘poopoo!’; and (b) another group who, because of their history of marginalisation and oppression, will find group A’s speech deeply damaging to their equal standing in their shared society. Is the harm to group B really trivial compared to depriving group A of their little thrill?
    3. ‘The individual cases of speech or prevention aren’t the relevant objects here: what’s at stake is a culture of free expression compared with a culture of repression’—I also think that a culture of free expression is a excellent thing, and for John Stuart Mill’s reasons: it’s vital for the full and flourishing development of each individual human being. But in our systematically unjust society, publicly asserting, discussing, meeting about, organising and recruiting round anti-egalitarian claims damages exactly that culture of free expression, by constraining and stunting the capacity for expression of members of subordinated groups. That’s the sense—Iris Marion Young’s sense—in which I’ve been using the term ‘oppression’; it’s also why I’ve been appealing to the idea of democracy as voice (and in reply to Matt Lister, I’m hardly the only person who understands democracy in those terms—see e.g. Sam Bowles and Herbert Gintis, Democracy and Capitalism).

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15. 

    Philippe Lemoine

    June 16, 2014

    Sorry I didn’t reply before, but I was traveling this weekend. Sam, since you no longer have time to continue this conversation, it seems fair that we just leave it at that.
    However, since he or she made some interesting points, I would like to reply briefly to e.
    “Not on the most relevant notion of harm. The most relevant notion of harm is comparative between outcomes of restriction and non-restriction scenarios. On that notion the harm supposedly done by the lack of restriction and by restriction are both uncertain since in each procedure the comparison case is counterfactual.”
    That’s a good point, about which I’m happy to admit that you’re right. However, I don’t think it shows I wasn’t right to say that, at least historically, the harm allegedly done by the absence of restriction on freedom of speech is uncertain and, in any case, can hardly be compared with the harm done by the absence of freedom of speech. What it shows is simply that I was wrong to suggest that, if it is so, that’s because examples of harm done by the absence of restriction on freedom of speech are counterfactual. It’s true that examples of harm done by the absence of freedom of speech are also counterfactual, but even if we take that into account, I don’t think anyone would seriously doubt that, overall, the absence of freedom of speech has resulted in massive harm throughout history. On the other hand, it seems that examples of harm of comparable extent done by the absence of restriction on freedom of speech are harder to come by and, even if you find those which are commonly advanced convincing, I think you should at the very least admit that it’s hardly obvious.
    I agree that it’s a complex historical question and that we’re not going to settle it here. Mostly, I wanted to point out that, in arguing for restricting freedom of speech, advocates of this kind of restriction are always using the same examples and make historical assumptions about those examples which are anything but obvious. Basically, I think that, even if you agree that a more restrictive conception of freedom of speech could have prevented the rise of nazism in Germany, unless you have a very simplistic view of the history of Germany during the Weimar era (which unfortunately many people do since that’s how it’s taught at school), you will have to admit that it’s certainly not obvious (I personally think it’s false). On the other hand, looking at history (which is long, I say that because often I feel like people have forgotten there was centuries before the 20th), I don’t think many people would question the fact that restriction on freedom of speech has resulted in massive, pervasive, harm.
    “I have another, separate complaint. The notions of attack on “physical integrity” or “property damage” are diffuse and vague but we muddle through them anyway. Vagueness is then no objection to muddling through for other kinds of harms as well. For example imagine that factory F emits the toxic substance X. As a result one particle of X gets lodged in the lung of person P, thereby increasing P’s risk of cancer ever so slightly. Has the people controlling F harmed P? Does P have an enforceable claim to shut down F? If not precisely where on the spectrum from one particle of X to a dose of X that with full certainty produces lethal cancer in P does a harm to physical integrity appear? Vagueness, vagueness everywhere! We should drop the libertarian pretensions and muddle through as consequentialists.”
    I most certainly agree that the notions of attack on physical integrity and damage to someone’s property are vague (in fact, when I first mentioned that, I immediately noted there would sometimes be borderline cases), but you seem to be assuming that all vague notions have the same degree of vagueness, which is clearly not the case. In particular, compared to the sort of notions that Sam was alluding to, I think it’s clear that attack on physical integrity and damage to someone’s property are pretty damn precise.

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16. 

    Philippe Lemoine

    June 16, 2014

    I also wanted to say that I agree with David Wallace’s view that freedom of speech is a good in its own right. Personally, insofar as I can be said to have a systematic view about ethics (that is, not very far, I’m afraid), I’m a consequentialist of the non-utilitarian variety, who takes freedom of speech as one of the goods. But I suspect most of those who advocate a more restrictive conception of freedom of speech do not agree, so when I defend it I generally find myself doing it along utilitarian lines.

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