Tag Archives: free speech

Gawker, the Freedom of Expression, and the Power of Consequences

Is Gawker violating its writers’ rights if its chief executive editor de-publishes a controversial post?

What about if a company’s CEO is forced to step down in the face of a threatened boycott over the CEO’s political positions? Is an artist being “censored” if a comic book publisher cancels his covers and suspends him? Is it an unconstitutional “ban” on speech if Amazon and Walmart remove Confederate flag memorabilia from their offerings?

Across the web confusion abounds about what freedom of expression really means.

Most recently, in the messy wake of its sex-shaming post about a private citizen’s violation of Gawker’s neo-Victorian strictures on monogamy, founder and CEO Nick Denton (who pulled the post) had this to say to his editors:

What I can’t accept is an unlimited and subjective version of editorial freedom. It is not whatever an editor thinks it is; it is not a license to write anything; it is a privilege, protected by the constitution, and carrying with it responsibilities.

Literally, every part of that last bit is wrong.

The editorial autonomy of Gawker writers is not constitutional in nature. It is a license granted by their employer—i.e. Denton. Absent a binding contract, it can be revoked at any time without running afoul of anyone’s rights, and certainly not running afoul of anyone’s constitutional rights.

The constitutionally protected freedom that Gawker writers do have (as do we all) is not to publish at Gawker. The Constitution restricts the power of Congress, not the discretion of Nick Denton.

Nor is that constitutionally protected freedom a “privilege.” It is a right.

And it does not have to be exercised responsibly.

It vexes me when people who should know better get sloppy in their framing. Messy language leads to messy thinking and, in the process, dilutes effective defense of this crucial freedom.

Perhaps a libertarian(ish) review is in order.

“FREE SPEECH” V. FREEDOM OF SPEECH

Although routinely used in Supreme Court decisions, the words “free speech” do not appear in the Constitution. In my opinion, overuse of this terminology induces people to mistakenly believe their speech should always be costless and consequence-free.

That is not how it works.

Speech requires a forum, which must be paid for by someone.

In public forums paid for by taxpayers, “time, place and manner” restrictions may be imposed to keep things orderly. But content-based discrimination is not permitted. Even the Nazis get to express themselves.

In private forums, on the other hand, the property owner gets to decide what speech he is willing to host.

There is no “free speech” right to interrupt a Muslim prayer service at the National Cathedral. The Cathedral’s owner, which is the Episcopal Church, gets to decide what sort of speech occurs there. It doesn’t have to (but may if it wants) host Muslim-haters, atheists, rude people, or morons.

Similarly, bookstores are not required to carry every book printed just because the author claims a “free speech” right. The corner market does not have to sell every conceivable magazine. Art galleries do not have to make room for every painting. Radio stations do not have to play every song.

And Gawker does not have to publish every post. (I would totally make it publish this one.)

If a speaker wants his speech to be “free” in the sense of not having to pay for the forum, he must either utilize a public forum or find a private owner willing to host the content gratis. Luckily, in this day and age, there are lots of options for that.

Gawker is not one of them.

Like other private publishers and forum owners, it exercises its right to decline hosting or publishing content it dislikes. There’s a term for that right.

…Oh yeah. Freedom of speech.

FORCE VERSUS CONSEQUENCE

It is tempting to say that Brendan Eich was “forced” to resign from Mozilla over his position on same-sex marriage. That Richard Albuquerque was “forced” to pull his Batgirl cover variant. That TLC was “forced” to cancel the Duggars.

That Nick Denton was “forced” to pull the now infamous Gawker post.

It sounds more melodramatic and provocative to phrase it that way. But to the extent it’s semantically correct, this is not the kind of “force” that runs afoul of the freedom of expression.

Wrongful force is actual physical force used to prevent or punish speech or other forms of expression.

This includes all governmental interference, because government action by definition involves force. Even civil regulations (like fines) eventually end with puppy-killing SWAT teams. Of course force exercised by private actors, in the form of violent reprisals, also suppresses freedom and therefore should be resisted with the same passion.

Preventing forceful suppression of expression is a higher order principle. When triggered, that principle transcends issues about the content of the speech being defended.

Why?

Because speech is the most powerful weapon that ever has or ever will exist.

It has the power to topple kings, eviscerate falsehoods, destroy paradigms, provoke thought, change minds and hearts, alter the course of history, and transform the world.

And it can do all that without shedding a drop of blood.

A weapon like that cannot be entrusted to the exclusive control of the few. Enlightened rulers using force to curtail speech have too often gotten it wrong. Power once ceded can rarely be retrieved, and battles not fought with words and ideas will be fought instead with violence and bloodshed.

We cannot retain the best of speech without protecting its worst. We cannot extract its power to do harm without diluting its power to do good.

EVERYTHING BUT FORCE IS FAIR GAME

That being said, everything short of physical force is fair game.

A Congressional communications director can be pressured into resigning (or fired) for making snarky comments about the President’s daughters. TLC and A&E can cancel their reality television lineup for any reason consistent with the contracts negotiated. Customers can boycott wedding photographers or bakers in retaliation for expression of disfavored opinions. Landlords can refuse to rent to people with Confederate flags in their rear windows. Employers can bypass applicants over their social media postings.

Firing. Boycotting. Refusing to hire. Pulling advertising. Cancelling subscriptions. Social media flame wars. De-publishing. Disassociating. Shaming.

All of these are fair game. All of these are themselves protected acts of expression.

They may make life unpleasant for the target. They may feel coercive or even deeply wounding.

They’re supposed to.

If speech didn’t have that power, we wouldn’t bother protecting it.

Deciding to refrain from speaking because such consequences are too unpleasant is not a response to force. It is a response to speech.

GAWKER IS GETTING SPOKEN TO, NOT SUPPRESSED

If Gawker were being threatened with forceful suppression of its speech, defending against that violation would be a higher order principle that transcended all others. Personal feelings about the content of the speech would be secondary.

But where no force is imposed or threatened, those secondary principles are the only ones at play. The whole point of the higher principle is to create a circle of freedom in which ideas, without limitation, can be explored and judged on the merits. If we never got around to the judging part, we would destroy the very reason for preserving the freedom.

Nothing happening at or to Gawker (in this specific case) poses any threat to anyone’s fundamental right to free expression. The writers are free to write. The owners of Gawker are free to choose what to publish. The editors are free to “fall on their poisoned pens” in protest. Advertisers are free to abstain. Readers are free to boycott.

None of this constitutes a violation of anyone’s freedom. It’s what freedom looks like.

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

Why FIRE Is Wrong To Criticize Utah State For Anti #GamerGate Speaker’s Cancellation

sarkeesina

Let me get this out of the way before we get started. For the most part, I like the work that FIRE does on free speech issues on university campuses. Universities are meant to be a place where ideas can be expressed freely, and all too often that’s no longer the case for many reasons.

I also deplore death threats and believe they have no place in political discourse, on either side of any political issue. Anyone who issues death threats for the purpose of silencing speech should be prosecuted to the fullest extent of the law for terrorism, because that’s what this is.

Now that all that is out of the way, let’s get into the story. A couple of weeks ago, Anita Sarkeesian, who is a feminist speaker and opponent of #GamerGate (if you need a #GamerGate 101, read Christopher Bowen’s piece on the topic) canceled her scheduled lecture at Utah State University due to death threats and the fact that Utah universities allow concealed weapons at universities.

The Salt Lake Tribune has more:

In a phone interview from San Francisco, Anita Sarkeesian said she canceled Wednesday’s lecture not because of three death threats — one of which promised “the deadliest school shooting in American history” — but because firearms would be allowed in spite of the threats.

“That was it for me,” said Sarkeesian, who has kept multiple speaking engagements in the face of death threats, including one last week at Geek Girl Con in Seattle. “If they allowed weapons into the auditorium, that was too big a risk.”

She also pledged never to speak at a Utah school until firearms are prohibited on Utah’s campuses and called for other lecturers to join her in boycotting the state.

The USU police and the FBI determined that the threats against Sarkeesian were not credible. Also, Utah passed a law in 2004 that banned universites from restricting guns on campus. Whether or not you like that law, that is the law in Utah.

USU police though offered to tighten security at Sarkeesian’s lecture:

Sarkeesian said she asked for metal detectors or pat-downs at the entrance of the Taggart Student Center auditorium, but USU police said they could not prevent those in attendance from carrying weapons into the lecture if they had concealed weapons permits. Though she said, “in hindsight, I don’t think I’d feel comfortable with any weapons in the auditorium.” Police instead promised more officers and a backpack check at the doors. Sarkeesian said she asked whether police could screen the audience for guns and let them in if they had permits, but Vitale said campus law enforcement officers believed that would have been needlessly invasive for the audience.

“If we felt it was necessary to do that to protect Miss Sarkeesian, we absolutely would have done that,” Vitale said. “We felt the level of security presence we were putting into this was completely adequate to provide a safe environment.”

In this era of where we read about police officers violating the rights of the citizens they’re supposed to protect and serve, it’s good to see the USU police try to balance Sarkeesian’s safety with the rights of the audience. However, this wasn’t good enough for Sarkeesian and she cancelled her speech.

It’s clear that Anita Sarkeesian canceled her speech to make a point about concealed carry on campuses and this is a political stunt, not a threat to free speech because the university tried to work with her on security. The university did their job. For more on the gun control implications, read this.

Now enter FIRE’s Gina Luttrell who on their official blog criticized the university for not doing more to prevent the cancellation.

Regardless of the specifics of Utah’s open carry laws, universities do absolutely have an obligation to make sure that reasonable steps are taken to protect speakers—particularly when credible threats are made against them or when there may be violence toward them for their speech. Utah State should have worked harder to ensure that Sarkeesian would be safe speaking on its campus. Frankly, it’s difficult to believe that this would not have been possible to do while also staying within the bounds of state and federal law.

What more does Luttrell and FIRE want USU to do? They tried to work with Sarkeesian on a security plan that would’ve been compliant with Utah law against a threat that the FBI and USU police deemed to be non credible and Sarkeesian rejected it in favor of a political stunt against guns on college campuses. Instead of attacking the university, FIRE and Luttrell should be attacking Sarkeesian for trying to frame her attacks on the Second Amendment as a free speech issue. At the same time, you can’t force someone to speak somewhere they’re not comfortable speaking for whatever reason.

The answer to attacks on freedom is not to restrict freedom. It’s truly disappointing to see organizations give the cover of defending civil liberties to those who are attacking freedom, in this case giving the cover of defending free speech to a woman who is trying to restrict the right to keep and bear arms on campus.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.