Category Archives: Free Speech

Free Speech Aside, Why We Must Defend Those Who Draw Muhammad

Callimachi free speech aside

Free speech aside, why would anyone do something as provocative as hosting a ‘Muhammad drawing contest’?”

New York Times reporter Rukmini Callimachi asked that question on Twitter at 8:08 p.m. on May 3, within hours of gunmen opening fire at a “draw Muhammad” event in Garland, Texas.

It is tempting to answer Callimachi’s question dismissively. Speech needs no why. Freedom of expression is its own raison d’être.

That is in fact what I believe.

I am a freedom fetishist.

But perhaps we have strayed so far from our classically liberal tradition, become so complacent inside the bounds of our own civility, that we must deign again to explain the why of it.

Free speech aside, why depict Jesus Christ floating in urine? Why paint the Virgin Mary splattered by dung and surrounded by hovering vaginas? Why fake an interview wherein Jerry Falwell confesses to losing his virginity with his mother? Why produce the musical The Book of Mormon?

Free speech aside, why does anyone, ever, do or say or think or draw or write anything profane or blasphemous or provocative or controversial or impolite or mean-spirited or harsh or unkind?

Do only certain answers to that question justify the exercise of such freedom? Insulting to Christianity 15-0505

I sit as I write this in a crowded coffee shop. The tables are small and closely spaced. There are men seated at the two tables on either side of me. All three of us have matching disposable cups of overpriced coffee sitting precariously on the edges of our small tables crowded beside our silver laptops.

There is no way for me to turn my laptop to prevent them both from seeing the screen. After reading the Wikipedia entries for the artwork I mentioned above, I peruse galleries of Charlie Hebdo covers looking for examples of images targeting Christian and Judaic ideas.

Ideas. Not people.

CircumcisionI wonder to myself, what do these men sitting so closely beside me think of these images? By now, they have surely glanced over and seen them on my screen. What meaning have they ascribed to them, to my perusing of them here inside the narrow confines of this crowded coffee shop?

I find my mind flowing back through the years to another table in another time. It is more than a decade and a half ago. The table is bigger, square instead of round. In a lunch deli, not a coffee shop, and not at all crowded. I am having lunch with a friend. It is before the days of smartphones. We are reading different sections of a shared newspaper.

An article captures my attention. I summarize it aloud for my friend. A couple struggling with fertility sought help from a fertility clinic. Ultimately the wife was implanted with embryos that were successfully fertilized using her eggs and donor sperm. A baby was born.

Only there had been a mix-up with the donor sperm used by the clinic. The baby does not have the right look to her parents’ way of thinking.

Her skin is too dark. Her hair is too kinky.

The parents are suing. The article closes with a quote in which they insist they are not racist.

“Right. We aren’t racist,” I mimic, sarcastically. “We just don’t want this baby. For entirely nonracist reasons.”

My friend snickers. We both get it. We are young and smug and sure of ourselves, signaling our mutual membership in the best of all possible tribes. We start riffing off each other, back and forth, mimicking all the things we imagine people blissfully unaware of their own contrivances say in such circumstances.

We’re not racist. We just don’t think the races should mix.

We’re not racist. This is about the children.

We’re not racist. We have black friends.

A man at a corner table looks up from behind his own newspaper and frowns at us.

Jerk. I immediately assign him to one of those other, less desirable tribes. One whose members remain fatuously assured of their enlightened values right up until the moment they are handed that baby. The swaddled bundle of Other that forces them to confront the things they had until that point been able to deny existed inside their own minds.

Or—

Wait.

Wait!

Does he think we are the—?

Did he misunderstand? We were only…

What? I struggled to think of the right words to describe what we were doing.

Making fun.

Mocking.

Satirizing.

I am fifteen years away from knowing what Charlie Hebdo is.

Poe’s Law is not yet a thing.

All of sudden I see how the view might look from his table. I am no longer sure which of us belongs in which tribe. Which of us is blinded by our own contrivances.

It is not always obvious.

It is not always possible to find a single objective truth in satire, in mockery, in fiction, in art. It is not always easy to define the line between the thing mocked and the mockery itself. Between racism and the illustration of racism. Between targeting ideas and targeting people. To avoid the place where laughter collides with conscience. To know if we are punching up or down.

To avoid the inherent limitations of the views from our own tables.

But it is in those moments when self-doubt obliterates contrivance that paradigms shift. It is in the moments when we finally sense the chinks in our own armor of righteousness that we fully appreciate the limitations of our perspectives. It is where we straddle those lines that cannot be drawn that real debate occurs and social change is worked.

There is inherent value in the speech that drives us to the place where the curtain is pulled back.

And that is why.

As Caleb Crain, author of Necessary Errors, writes on his Steam Thing blog:

It’s possible, of course, to see the antiracist message of one of the Charlie Hebdo cartoons as no more than a cover for an underhanded relishing of the racist imagery deployed in it. Parody usually does participate to some extent in the energy of what it parodies; that is one of the risks it runs. Humor is not pure. It speaks to us through our flaws, as well as speaking to us about them—envies and hates, as well as greeds and lusts—and it can’t exist without the license to work with dark materials.

Last year at the University of Iowa, a visiting professor created a sculpture of a Ku Klux Klansman papered with articles about racial tension and violence over the last 100 years. Some people complained that it was racist, and the sculpture was removed. Its creator, Serhat Tanyolacar, intended the sculpture to confront the comfortable assumption that our racial frictions are all safely in the past.

Can one of these interpretations be pronounced objectively correct to the exclusion of the other? They are like conjoined twins—one good, one evil—and you cannot kill one without killing the other.

And that is why.

If the message cannot always be nailed down, neither can the direction of the punch, though that was a criteria for meritorious satire recently advocated by cartoonist Gary Trudeau. An LGBT couple denied photography, floral or catering services will undoubtedly perceive the balance of power differently than the Christian business owner bankrupted for expressing religious values that amount in others’ eyes to politically incorrect discrimination.

Which side controls the narrative about campus “rape culture?”

Does Paul Nungesser have more or less power than Emma Sulkowicz?

Are the targets of Charlie Hebdo’s satirical barbs victims, as Trudeau suggests, or are they oppressors, as Ayaan Hirsi Ali and others might argue?

[T]o portray an institution that mocks any religion’s sacred cows as villainously “punching down” ignores that religious institutions are very much part of the power structure and have been throughout history.

When you’re challenging the gods, and those who claim to speak for the gods, you are always punching up.

Can we say with certainty that Charlie Hebdo’s (alleged) punching down in France does not help people like Raif Badawi punch up in Saudi Arabia?

Like shifting sands, our perceptions of the balance of power change from setting to setting, issue to issue, moment to moment, always influenced by the view from our table. If we refrain from swinging except in the clear cut cases, satire is sidelined precisely at those moments when we stand on the brink, when social upheavals make the scores too close to call.

And that is why.

But it is not all.

Circumscribing speech based on the sensibilities of out-groups marginalizes and infantilizes the members of those groups. It treats them as children who must be shielded from the harsh confrontations that members of other, more superior groups might be expected to handle. As David Frum noted in responding to Trudeau:

It’s almost as if he thinks of underdogs as literal dogs. If a dog bites a person who touches its dinner, we don’t blame the dog. The dog can’t help itself. The person should have known better.

In this manner, Trudeau and his cohorts would return fierce debate to the exclusive province of those—white, male and Judeo-Christian—who by dint of their power and privilege can be expected to handle such heady and taxing matters responsibly.

Out-groups are not comprised of children. Nor are they homogenous. Among their many victims, extremists who call themselves Muslims kill moderates who also call themselves Muslims. Is Charlie Hebdo punching down against the latter—or punching up on their behalf?

People of good faith can reach different answers.

And that is why.

Finally, and here is the crux of it, we cannot make the world safe for the people who would punch up unless we find it our hearts to defend those who will use the same freedom to punch down.

I used to differentiate between government censorship and private consequences for unpopular speech. It was the wrong distinction. The meaningful difference is between non-forceful responses to speech—firing, boycotting, bankrupting, and shunning, all of which are fair game—versus forceful responses, which never, ever are.

It is not functionally different whether the thugs suppressing expression are the official ones we call “government” or a renegade band of religious zealots. If we give in to the latter on the theory that they are somehow exempted from the resistance we would put up against the former, the zealots simply become a shadow government of censors.

We are no less unfree.

Bosch Fawstin's  winning entry in the Garland, Texas "Draw Muhammad" contest.

Bosch Fawstin’s winning entry in the Garland, Texas “Draw Muhammad” contest.

If we want freedom to exist for the Raif Badawis of the world, we must defend its exercise by the Pam Gellars.

The peaceful way to do that, to render violence counterproductive to its own ends, is by mirroring the speech that would be suppressed. Even when it is offensive. Even when it is blasphemous. Even when it is rude, childish, stupid, unpopular, pointless or unnecessarily provocative.

Even when we don’t agree. Especially then.

And that is why.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Are “Safe Spaces” the New “Coloreds Only?”

Entrance 15-0325

Earlier this month, two white students at Ryerson University in Canada were dismissed from a meeting of the Racialized Students’ Collective, a university group funded through the Ryerson Students’ Union. The university’s student newspaper, The Ryersonian, reported the RSU coordinator confirmed the students were excluded for being white. Last week Aeman Ansari, a fourth year journalism student at the school posted a blog entry on HuffPo Canada defending the decision.

Ansari ably and convincingly defends her belief that safe spaces are important. Ansari’s defense falls short for failing to explain why taxpayers, the university, and other students should fund them as exclusionary campus events.

Specifically, Ansari opines that:

[T]he point to note is not that two white students were asked to leave the event, but rather that this was a safe space …

…This group and these sort of events allow people of colour to lay bare their experiences and to collectively combat this societal ailment. These spaces are rare places in the world not controlled by individuals who have power, who have privilege.

…The presence of any kind of privilege puts unnecessary pressure on the people of colour to defend any anger or frustrations they have, to fear the outcome of sharing their stories. The attendees are trying to move forward by supporting each other and they should not have to defend themselves, they should not fear the consequences of raising their voices.

Let us get out of the way that I dislike people who cannot deal with opposition, who will only defend their opinions to friendly crowds, or who must banish dissent to feel validated.Drinking Fountain

I prefer feisty tanglers to special snowflakes.

It is neither here nor there. Special snowflakes are entitled to their preferences too, and everyone deserves an occasional session in the echo chamber. I agree with Ansari that safe spaces are important.

Where I disagree with Ansari is her implicit insistence that other students and Canadian taxpayers pay for them as exclusionary campus events. She never gets around to explaining or defending this aspect of her position.

The fact is “safe spaces” already exist.

They are called “private property.” Private homes, leased apartments, backyards, and private event venues can all be used to host exclusionary events. In addition, private conversations take place every day in bars, restaurants, coffee shops, conference rooms, sidewalks and parks.

That there are insufficient opportunities for people to have private conversations seems false on its face. If certain students want to get together to talk about their experiences only with a carefully selected crowd, there is no shortage of opportunities or “spaces” to do just that.

Waiting room 15-0325The issue is why they want to use student and taxpayer funds to do it on campus. Ansari never explains that.

Private, exclusionary discussions and events should be conducted privately. Forcing other people to pay for and host them is a new form of bullying—a new incarnation of an old segregation.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Stop Calling Government Regulation of the Internet “Net Neutrality”

fcc-net-neutrality-voteImage from the FCC by way of Ars Technica

Stop using “net neutrality” to refer to government regulation of the internet.

That’s not what net neutrality is, and it’s certainly not what the government regulations promulgated by the FCC today are, in this case “Common Carrier” Rules.

People who don’t know any better are celebrating todays faux “net neutrality” FCC action as a victory for freedom and free speech on the internet, when in fact, it’s exactly the opposite.

I’ve written extensively about net neutrality and this is very much NOT it.

All the FCC has done today, is impose common carrier regulation on every ISP (oh and by the way, lots of other organizations as well who “provide internet access”. No-one has any idea how the regulations are going to be finalized, what the language will mean, who will be impacted and how… except everyone knows it’s going to cost a lot), instead of just the telephone companies it was already imposed on. Verizon for example, who was already one of the worst violators of net neutrality, even with common carrier regulation already in place for them.

Thus it makes competition and breaking of existing monopolies even harder, while not actually doing a damn thing to secure or improve neutrality… oh and it gives the FCC more control over the internet.

Absolutely none of those are good things.

Common carrier regulation is a big part of what made the current near monopolies on Internet access happen in the first place, because small independent companies, and even large regionals, couldn’t compete with the giant telcom conglomerates under those regulations. So, they all got swallowed up.

I’ve been working with telecommunications companies, and common carrier regulations, for more than 20 years. I’m an expert in governance and regulatory compliance, and I can tell you right now, NOBODY understands these regulations, because they are not capable of being understood.

These regulations and the rulings and case law associated with them go back to 1930s… and in some particulars all the way back to the 1870s. And of course, rather than replace them with something clear when they wanted to make new regulations, congress and the FCC just amended and added on and countermanded and…

I’ve flowcharted them before to try to see what applied how and where and when… the only thing I could come up with was “nobody knows for sure, it all depends what a regulator or judge says at the time”.

This wasn’t a blow for freedom and free speech… This was a giveaway to big corporate donors in the telecommunications industry.

The big telcos have been trying to get their primary competition, non-telco ISPs, burdened with the same regulatory load they labor under, for DECADES. Now, in one stroke, the FCC at the personal direction of the president, has given it to them.

Oh and guess what else common carrier regulation includes… SURVEILLANCE.

All common carriers are required to provide the government and law enforcement “reasonable access” for surveillance, as well as to give up records, usage details, and other subscriber and user data, WITHOUT A WARRANT.

What does “reasonable access” mean? Whatever the government says it means… and if you think I’m exaggerating, I’m not. I’ve dealt with the FBI on this issue, and that’s a direct quote.

Yes, this is not only a massive corporate crony handout, it’s also a huge gimme to the FBI and the NSA, who have wanted all ISPs stuck under common carrier for years as well.

Stop calling government regulation of the internet “net neutrality”. Letting the liars control the language helps them lie to you.

Net neutrality is not government regulation, and these regulations are certainly not net neutrality, nor anything like it. Don’t be taken in by fraud, cronyism, and statism, masquerading as freedom.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Brandon Duncan May Do 25 to Life for Singing About a Gang

tiny+doo

In 2013, San Diego experienced a rash of shootings.

Brandon Duncan is a San Diego musician. He has no criminal record. He is not alleged to have pulled the trigger, to have been present, to know who was present, or even to have known contemporaneously that the shootings had occurred. He is not alleged to have masterminded the murders, paid anyone to commit them, or otherwise aided in their commission.

Nevertheless, Duncan may wind up doing 25 years to life for the shootings.

The reason?

Sales of an album Duncan made in 2012 may have benefitted from a surge in gang stature and respect in the wake of the shootings.

Duncan apparently creates music about gang activities. As Kevin Boyd reports at IJ Review, the lyrics include one line about holding a gun with no safety and another about a full clip making someone’s top disappear. The tracks can be heard here.

In any case, creating music about violence and criminal activity is not illegal. That is Constitutional Law 101. The First Amendment protects freedom of expression, including violent content in music, literature, art, media, video games, etc.

Mario Puzo could not do 25-to-life if an upsurge in Mafia violence caused a renewed interest in his Godfather novels. He could not do 25-to-life even if prosecutors alleged that his books glamorized organized crime, thereby contributing to an increase in such activity.

That California does not attempt to prosecute authors like Puzo invites speculation that the state is discriminating against certain content and certain genres of art and its creators. Italian-American authors writing fiction novels about Mafia violence are acceptable. African-American musicians creating rap music about street gang violence are not.

Whether or not such speculation is justified, prosecutors claim that Duncan is not merely a musician creating unsavory content. They allege that Duncan is actually a member of a gang based in Lincoln Park, California.

Of course, it is also not illegal to belong to a gang.

That too is Constitutional Law 101. The freedoms of assembly and expression necessarily entail the right to free association. The State of California can neither prohibit Duncan from associating with the people of his choosing, nor punish him for doing so.

But there is yet another dot to connect. Duncan is being charged under a California penal statute purporting to make it a crime to “benefit from” the illegal activities of a “criminal street gang” in which one “actively participates:”

…[A]ny person who actively participates in any criminal street gang…, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity…, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.

According to NBC San Diego, prosecutors explain their theory of this offense as follows:

“If you are a documented gang member, and you benefit from or promote the activities of the gang, you can be held responsible for crimes the gang commits,” the district attorney said.

To be found guilty, prosecutors must prove the suspects are active gang members, that they had “general” knowledge of the gang’s activity and that they profited, assisted or benefited from the activities. The suspects do not have to be directly involved with the crime to be found guilty.

Those benefits could be economic, like album sales, or intangible, like respect, the district attorney argues.

Prosecutors are apparently presenting the aforementioned music lyrics, plus social media pictures, to demonstrate Duncan’s membership in the Lincoln Park gang. They further argue that the sales of his 2012 album benefitted from the 2013 shootings.

Duncan’s defense attorney, Brian Watkins argues that the songs are just artistic expression, and that while Duncan has associated with some members of the gang because he grew up in the same area, he is not himself a member. In an interview with NBC San Diego, Watkins had this to say:

“I mean, to imprison someone for 25 years to life because of artistic expression is something not even the worst communist regimes have done…”

The DA’s office counters that the law was passed by the voters and found constitutional by California’s Supreme Court. That decision was People v. Johnson (2013), wherein the Court analyzed ways in which Section 182.5 diverges from the traditional crime of conspiracy:

[T]raditional conspiracy requires both the specific intent to agree, and specific intent to commit a target crime. … A 182.5 conspiracy does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime.

The Court seemingly reassures itself that the intent requirement is replaced with a requirement of “active and knowing gang participa[tion] … with the … intent to promote, further, or assist in the commission of a felony by other gang members.” However, just two paragraphs later, the Court concedes that:

[S]ection 182.5 brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony. It also embraces an active and knowing participant who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense.

So Section 182.5 dispenses with the traditional intent requirement, replaces it with a requirement that the defendant have been an active and knowing participant in the gang (but not the crime), and then punishes the defendant for receiving any benefit, however intangible, from a crime committed by other members of the gang.

That sure sounds like doing 25 years to life for one’s unsavory associations.

Long-standing criminal statutes already address racketeering, commission of or participation in, conspiracy to commit, or aiding and abetting a crime. What is the need for this particular statute other than to prosecute someone who cannot be demonstrated to have violated those traditional criminal statutes?

Ken White at Popehat reached out to the San Diego District Attorney’s office and reports that:

* The DA’s theory is that Duncan promoted the gang by writing rap music about gang activity, and that he received an “intangible benefit” — their words — by his music becoming more credible or popular. The DA did not present any evidence that the gang’s crimes had any impact on album sales.

* The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs. But they asserted that his rap music also showed that he participated in the gang, one of the elements of the offense.

* The DA’s theory is that when a gang commits a crime all members of the gang automatically benefit for purposes of Section 182.5. That theory, if accepted, would effectively eliminate one of the elements of the crime so that the DA would no longer need to prove that any individual gang member “willfully promotes, furthers, assists, or benefits from” the criminal activity.

In short, based at least on reports of their stance at the prelim, the DA seems to be saying that Duncan violated the statute by being a member of the gang and by rapping about the gang.

In the meantime, Duncan said on an interview with CNN that the studio is his “canvas” and that he would love to continue to make music, but:

“[T]hese people have you scared to do anything around here.”

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Let Us Rediscover the Art of the Peaceful Protest and Civil Disobedience this MLK Day

martin-luther-king-jr-inspirational-quotes-4

In the year 2015 there are many good reasons to protest: police brutality, injustice, the war on (some) drugs, the war on (some) terror, etc. One thing from Martian Luther King Jr.’s legacy that seems to be lost and something we should rediscover is the art of the peaceful protest and civil disobedience.

King understood that for positive change to occur, he had to truly win the hearts and minds of his fellow Americans. Being a positive example by showing the world that he and his followers would take a stand against injustice without resorting to violence was even more important than the words he spoke to that end. Certainly, not everyone believed in using the non-violent approach. Malcolm X and the Black Panthers believed that violence was necessary to achieve their shared goals.*

Who was right?

Personally, I find the pictures and the videos from the non-violent protests and the acts of civil disobedience to be far more compelling. There’s just something about seeing people refusing to act in a violent fashion against the state which inherently IS violence. This has a way of changing hearts and minds.

Contrast this with today’s protests in Ferguson, New York, and elsewhere concerning the police. For the most part, the protesters are peaceful and are using tactics which King would likely be proud. Unfortunately, however; it’s the nasty protesters that are violent, incite riots, or cheer at the news of cops being ambushed which receives far too much of the publicity. Even holding up signs like “The only good cop is a dead cop” or “fuck the police,” though certainly permissible as recognized by the First Amendment, turns people off who might otherwise be sympathetic to one’s cause.

Sadly, it’s not just a few misfit protesters who think that aggression is sometimes warranted to get one’s way. No less than the pope himself last week in the wake of the Charlie Hebdo terror attacks said: “(If someone) says a curse word against my mother, he can expect a punch. It’s normal. You cannot provoke. You cannot insult the faith of others. You cannot make fun of the faith of others.”

The leader of the same Catholic Church which normally advocates finding non-violent solutions to conflict (such as the Just War Doctrine) says that because someone says something offensive about one’s parents or faith it is permissible to use violence against that person! People’s feeling are more important than the concept of free expression.

I’m not interested in living in a world where I cannot insult the pope or his religion nor do I want to live in a world where the pope cannot insult me or my atheism. The world I am interested in living in is one where we can have passionate, even hurtful disagreements without fearing physical harm to my family, my friends, or myself.

Let us all rediscover the art of peaceful protest and civil disobedience on this Martian Luther King Jr. Day.

1 2 3 46