Intention and Free Speech

Intention and Free Speech

St. Mary’s College of Maryland, like many other colleges and universities, is struggling to combat racism, misogyny, and other forms of oppression on campus. Several recent incidents in particular have caused profound pain to many members of our community. I’ve written this essay in order to clarify my own thinking about two particular issues that have come up in the many conversations I’ve had with students, colleagues, and friends. My hope is that it might be valuable to others as well.

Intention

In response to symbols or the use of particular words, I’ve often heard people say things like, “That’s not what I meant. For me, the use of the Confederate Flag, or a particular word, means something different. So, you shouldn’t get mad at me or call me racist or sexist for using it.” Prof. Danielle Kushner responded to that type of claim in a really helpful way at the all-campus forum on Wednesday. Prof. Sybol Anderson also responded to it helpfully by email, earlier this semester (after the Flag incident). I’d just like to add a bit to what they’ve already said.

Of course there is something important about intention. If I harm you (make you worse off than you otherwise would have been) without intending to, that is importantly different (morally) than if I caused the same harm and was aiming to do so.

But, intention is also not the whole story; effect or outcome also helps to determine what action I have committed - what it is that I have done.

Here are a couple examples:

1. I see someone having a heart attack. I go through their bag and find a bottle labeled “heart medicine” so I give the person one of the pills it contains. Unbeknownst to me the bottle actually contains poison. Even though I was intending to save their life, what I actually did was kill them.

2. I’m going to visit a country where I don’t speak the language. An immature friend tells me to shout a particular word while in a crowded place, thinking that the word would elicit a laugh. Unfortunately, when I shout the word I discover that it actually means “fire” in the local language. Even though my intention (and the intention of my friend) was to cause a laugh, what I actually did was cause physical injury by inciting fear in the crowd.

In both cases the effect of my action helps to determine what it is that I have done, regardless of what I intended to do.

In the second case you might think that I’m obviously blameworthy for acting so irresponsibly; I should have known better. In the first, you might think that I’m not blameworthy because I didn’t have much time to act and I had good reason for thinking the pills would help and not hurt. But, whether I’m blameworthy or not, it’s still true that the effect helps determine what action I committed.

What these examples demonstrate is that whether someone is blameworthy for being ignorant of the harmful effects of their actions is a different question from whether they have in fact caused those effects. So, you might think that (these days) someone who claims they didn’t know the Confederate Flag was harmful to others is blameworthy for their ignorance. My own view is that some folks seem genuine when the claim not to know why others might be harmed by their display of the flag; they seem to be genuinely ignorant of those effects (though not nearly as many who claim to be). That’s one reason why I found Prof. Todd Eberly’s blog post really helpful:

http://freestaterblog.blogspot.com/2016/04/of-course-people-are-offended-by.html

This piece by Ta-Nehisi Coates is helpful, too:

http://www.theatlantic.com/politics/archive/2015/06/what-this-cruel-war-was-over/396482/

My point is that social context and history are essential to evaluating not just whether an action is blameworthy, but also to determining what the action even is. Good intentions (though important) are not enough.

Free Speech

As Prof. Katie Gantz pointed out in a recent faculty meeting, one thing that comes up in lots of conversations like those that we’ve been having is the claim that everyone has a right to free speech. That general right supposedly secures the particular right to make racist or misogynist jokes or display the Confederate Flag or Swastika. Ironically, I think appeals to free speech often serve to shut down conversation rather than expand and enhance it. In order to try to do the latter, one thing I’ve talked about with my students is that when people claim to have a right to free speech they can mean one of at least two things (and often conflate the two).

The first is what is protected by the First Amendment. That has generated quite a lot of scholarly and legal scrutiny and just what it means is controversial. My understanding is that the First Amendment is, at its core, about the relationship that exists between citizens and the government – whether the state may work to censure or suppress citizens’ free exchange of ideas. But, that’s just not at play in lots of the situations where people claim their right to free speech is being violated (because the state isn’t meaningfully involved). Furthermore, note that there are lots of forms of speech that are not protected by the First Amendment (libel/slander, false advertising, sharing government secrets with foreign governments, child pornography, and as in the case above, yelling “fire” in a crowded theater). So, it’s just not true that people have a legal right to say whatever they want, however they want, or whenever they want.

The second sense of a “right to free speech” is moral, but this sense is also clearly limited. We don’t have a moral right to say whatever we like. Here’s why:

It is a basic, utterly uncontroversial moral principle that we shouldn’t hurt others without good reason. Saying certain things can hurt others. So, the question then becomes whether you have good reason to say them – whether the harm you will cause is justified. Sometimes it is obviously justified: it might hurt for me to share painful news with you, but you might be entitled to that news. Sometimes it obviously isn’t: I don’t have a right to cause you to feel a lot of pain simply because it brings me pleasure to do so.

Things get tricky when we ask about whether it is permissible to penalize others for violating that right. You don’t have a moral right to cheat on your spouse (if you’re in a monogamous relationship) but it might be impermissible for others to try to prevent you from doing so. In the same way you might think that you don’t have a right to say gratuitously harmful things to others, but that it would be impermissible for others to prevent you from doing so.

But, that position also seems false in at least some cases; it is at least sometimes permissible to intervene if one person’s speech will cause harm to others. If you’re skeptical of that claim, consider the fact that we already operate on implicit communicative norms that govern social interaction (and educational interaction in particular). Though I have a right to believe what I want, and though I have a right to share those beliefs with others, I don’t have a right to share those beliefs with others by whatever method I prefer. Students can’t talk through a megaphone in class while others are talking. Students can’t preface every comment by threatening harm to someone in the class. (Note also that no one is claiming that our students’ legal rights are being violated, even though St. Mary’s is a public institution, when we tell students that they can’t do either of those things in class.) One reason why is that their doing either would undermine the free exchange of ideas the right to free speech, both moral and legal, is supposed to secure.

Hate speech functions in the same way. It silences targeted groups, communicates that they do not belong in the conversation, that they are hierarchically socially subordinate to more powerful social groups, and that they ought to be concerned for their physical security. All of those effects – whether intended or not – undermine the free exchange of ideas that the right to free speech is supposed to secure. So, the right to free speech itself entails its own restrictions: the right to free speech is not the same thing as the right to unrestricted speech. That’s not the only reason to reject the absolute right to free speech, but it’s an important one.

However, let’s say you aren’t concerned with the free exchange of ideas but are only concerned with a minimal restriction on individual liberty. So, the reason why you think someone has a moral right to free speech is not because the free exchange of ideas is a social good from which we all collectively benefit, but because you just have a right not to be interfered with by others, except to protect others from your harmful actions. Again, it is a minimal (and in my experience) utterly uncontroversial moral principle that we don’t have a right to harm others without good reason.

Now consider telling racist jokes. Doing so causes real harm for members of racialized groups who are the targets of the jokes (in the ways named above). Furthermore, such jokes help to prop up racist ideologies that communicate that members of racialized groups are the “appropriate” target of such jokes (and therefore are appropriately subordinated to others who have the power to decide whether to make jokes at their expense). In other words, if you think it’s true that you have a right to say whatever you’d like, but you also don’t have a right to hurt others without justification, then when evaluating whether you have a right to tell racist jokes, the question becomes whether the harm that you generate in doing so is justified harm. It seems clear to me that it is not – the pleasure you derive, the preference that you satisfy, or the power that you exert when you tell a racist joke does not justify the harm that comes from doing so.

In summary, merely invoking the general right to free speech is not enough to secure the particular right (either legal or moral) to say whatever you’d like, whenever you’d like, or however you’d like. There are at least two reasons why. The first is that the free exchange of ideas (which is what “the right to free speech” is supposed to secure) is undermined by certain types of speech and methods of delivery. The second is that we shouldn’t hurt people without good reason, and the pleasure or benefit someone derives from making a racist or misogynist joke or displaying a racist symbol doesn’t justify the harm that doing so causes.

Note that I have not argued that such jokes or symbols ought to be banned at St. Mary’s College. Supporting that conclusion would require additional argumentation (and community buy-in). I have simply argued against the claim that bearing the right to free speech means that anyone may say whatever they’d like.