I’m still rather occupied with, umm, trying to craft an exit plan from my current situation. Felicitously for me, at this very moment this involves reading a lot of legal theory! I had forgotten how much I loved legal theory. JD Regent surely thinks I am crazy, but nothing appeals to me more than a morning of toast, tea, and a nice journal article.
Awhile back I got into a discussion with some of you in which I was trying to explain why I can’t unqualifiedly sign on to things like the First Amendment. While I wasn’t particularly articulate then, what I was trying to articulate is that I am concerned about the way in which structural inequalities stop some people from speaking out in the first place. Today in working on this project (perhaps related!) I came across an article by Richard Delgado that more or less expressed what I would have liked to have said, though in this article he is speaking of race specifically:
The system of free expression also has a powerful after-the-fact apologetic function. Elite groups use the supposed existence of a marketplace of ideas to justify their own superior position. Imagine a society in which all As were rich and happy, all Bs were moderately comfortable, and all Cs were poor, stigmatized, and reviled. Imagine also that this society scrupulously believes in a free marketplace of ideas. Might not the As benefit greatly from such a system? On looking about them and observing the inequality in the distribution of wealth, longevity, happiness and safety between themselves and others, they might feel guilt. Perhaps their own superior position is undeserved, or at least requires explanation. But the existence of an ostensibly free marketplace of ideas renders that effort unnecessary. Rationalization is easy: our ideas, our culture competed with their more easygoing ones and won. It was a fair fight. Our position must be deserved; the distribution of social goods must be roughly what fairness, merit, and equity call for. It is up to them to change, not us.
A free market of racial depiction resists change for two final reasons. First, the dominant pictures, images, narratives, plots, roles, and stories ascribed to, and constituting the public perception of minorities, are always dominantly negative… Minorities internalize the stories they red, see, and hear every day. Persons of color can easily become demoralized, blame themselves, and not speak up vigorously. The expense of speech also precludes the stigmatized from participating effectively in the marketplace of ideas. They are often poor — indeed, one theory of racism holds that maintenance of economic inequality is its prime function — and hence unlikely to command the means to bring countervailing messages to the eyes and ears of others.
Second, even when minorities do speak they have little credibility. Who would listen to, who would credit, a speaker or writer one associates with watermelon-eating, buffoonery, menial work, intellectual inadequacy, laziness, lasciviousness, and demanding resources beyond his or her deserved share?
What say you commenters? I’m a little too caught up with other stuff to participate fully, but would love to hear your reactions.
yes.
Hrmmm. I don’t know if this is enough to compel me to give up on the First Amendment. (I mean, what would you replace it with?) I see the problem less as “a marketplace of free ideas drowns out underprivileged voices / gives a megaphone to the privileged” and more that Americans have taken what used to be a wonderful starting point (freedom of speech) to work towards finding the ideas that would best improve the commonwealth, mixed it up with Capitalism as a Religion and Model for Everything, confused Adam Smith’s Invisible Hand with The Almighty Fist of Thor, and just generally come out the other side thinking that What Is Now Was Always Meant To Be and is also a reflection of the way things Ought to Be.
You know, because we’re simplistic.
yvane: I mean, what would you replace it with?
That’s always been my response when people criticize the First Amendment, or free speech in general. Because people who aren’t in favor of unrestricted free speech and religious practice, are saying they prefer that the government restrict freedom of expression and religion (or at least, be able to do so).
For me, that’s the hill I’ll die on. When the government is empowered to clamp down on free speech or freedom of religion…well, nothing good ever comes of it.
as we have said here before, this is an insanely difficult question. I want to say, free speech 100%, this and that right 100%. But, I find myself agreeing with the US govt that told Mormons: no, you can’t have polygamy. Your freedom of religion does not extend there. And once I went there, well, I think everything needs to be considered in that light too.
@rodriguez – Well, sure, free speech is not limitless. Fire in a crowded theater and all that. But I thought we were talking about the 1st Amendment as it actually exists rather than some kind of idealized Absolute Free Speech concept? Likewise the 1st Am still exists and protects freedom of religion even though it doesn’t protect polygamy.
Rodriguez, I think the US govt’s stand on Mormon polygamy really has to be viewed in historical context. The gov’t fought–both in courts and in armed conflict–with the LDS for a long time before the LDS conceded. At the time, the US government simply did not give a fuck about the First Amendment when it came to clamping down on religious practice that they perceived as a threat to the American way of life.
About the same time, the Bureau of Indian Affairs banned the Ghost Dance religion of the Lakotas–a clear violation of the establishment clause of the First Amendment. Again, they didn’t give a fuck about the legality of it; the Lakotas were a non-white minority, and the Bureau wanted to convert them to Christianity.
Many religious cults, sects, and denominations sprang up in the US in the 1800s, but US government selectively ignored the First Amendment so they could go after some of the ones they didn’t like–including the Mormons.
To me this raises the question: assuming we’re working within this framework of rights and the right of free speech exists, does anyone have the right to be listened to? Should anyone have that right? Obviously being listened to is part of privilege of all stripes and I understand that you’re pointing out the problems with that. But does/should anyone have the right to demand someone else’s attention and give them a message, under any circumstances?
anyone have the right to be listened to?
Maybe, maybe not. But I think they all have the right to speak. We can then choose who we listen to.
this is an area of very fuzzy thinking for me, so correct my errors as you see them.
@becky re: Historical context for polygamy etc. Point taken. Either way, I admit I like the result. So what does that say for what I really heart of hearts believe in?
@Yvan & @becky I understood the quote above to be about things that happen when we have the free speech market, sort of like: observe these by-products. Unless the tone is different elsewhere in the article, I don’t get that Delgado is advocating eliminating free speech.
I think it’s healthy to observe that even our best-loved ideas and policies come with some unintended consequences, and I think Delgado is pointing one out. This analysis seems realistic to me.
rodriguez- Oh, I totally get his article and sign on as just general race critical theory of society as it stands. My comments were more directed at the idea that PS can’t “sign on” to the First Amendment, and even there I’m pretty sure I assigned a position to her beyond what she’d staked out in the post.
Not unreservedly signing on != wanting to do away with, after all.
@rodriguez: Yeah, I tend to agree with you on the polygamy thing. The ends don’t justify the means…but personally, I like the ends. It’s an ethical dilemma.
@Yvan: I totally get the whole “free speech leads to unintended consequences” argument. Hell, the American Nazi party is based in my hometown…and so is Sarah Palin’s PAC. They are an unintended consequence if there ever was one.
But with that in mind…it doesn’t seem to me that there’s any way of avoiding such unpleasant consequences short of empowering the gov’t to impose selective bans on free speech. Is there?
Becky – No, I don’t think so. I was just trying to affirm that I do agree with the intent of the article (Free speech is not a perfect good, we need to be aware of disparities it causes and factor those into our perspective on the world around us) even though I’ve been all Rah Rah Constitution in the comments.
@Becky – Sure, but doesn’t that lead to the reinforcement of power structures as discussed in the post? Everyone has the right to speak, but as it currently stands, no one has the right to a platform or to attention, and so platforms and the attention of others goes primarily to people who are privileged. Is there a way to correct this using the idea of rights or must we rely on other concepts?
@baraqiel: I think that legally and constitutionally, we must allow everyone to speak. The fact that our culture privileges some speakers over others is a problem with the culture, not with free speech itself, so the solutions to that problem should be cultural.
My brief interjection: this article was written in the context of critiquing First Amendment doctrine, but I don’t think it’s necessary to define the discussion that way. And probably not useful, since it would exclude non-legal persons from the discussion.
Laywer joke: I suppose that means under recent Supreme Court jurisprudence that corporations must be able to speak their mind regarding free speech. Or something like that.
@PS- With one hell of a megaphone. Blech.
@Becky – That’s in some sense an artificial distinction. Free speech isn’t an objective concept even within the US. I’m not trying to say that we should enact laws that say minority populations get 8 hours of airtime per day or whatever and you’re required to watch. But, it is the case that free speech is a culturally constructed right and I’m wondering if there’s a way that we can tool with the idea (philosophically speaking) to fix some of the inequalities.
@baraqiel: How would you tool with it?
@Becky – Have you been reading the last couple of posts on fugitivus about her experience with parental notification laws for abortion and how they’re implemented? It brings home to me this idea that a right you can’t access isn’t actually a right. I’m wondering if there’s a way to build the idea of equal opportunity access to platforms into the idea of free speech without reinforcing this idea that some people have that if you don’t listen to them or if you don’t give them access to *your* platform, then that’s a violation of the right. Of course the internet helps with this since anyone can start a blog or whatever. But I think that the idea that you need to be able to access a right in order for that right to be meaningful is something that’s missing or at least underdeveloped in our conception of rights.
@baraqiel: Yes, equal access to the media/public is an issue, but trying to mandate platforms for everyone is completely unworkable, and frankly, it’s not free speech if someone’s masterminding who gets to say what and when, IMO.
Yes, it bothers me that some groups don’t get as much attention/access as I feel they should. On the other hand, I’m delighted that certain groups don’t get attention/access. I can live with the trade-off.
Well, both Canada and the UK have state-supported platforms of considerable breadth in the form of the CBC and the BBC, and even here you have NPR. So I think it’s at least marginally workable.
I think the idea of a state-supported platform like PRI or NPR or PBS is one thing, but are they really representing all interests? Isn’t the problem that there are voices being drowned out by that platform as well (although fewer than the MSM, I’m sure)? So then how do you give those groups platforms? And then the smaller groups, and the next smaller, and so on. I tend to agree that because privilege is largely a cultural problem, its solution must be cultural. Of course where privilege is a legal problem that needs to be fixed post haste, but I assume that’s a given.
Yes, but the US doesn’t have state-sponsored media of any considerable breadth the way the UK and Canada do, so I don’t know how that concept could be applied here.
Also, I suspect state-sponsored media is MORE likely to reinforce cultural privileges about who gets to speak than to remove them.
Becks, I don’t understand – could you elaborate? Do you mean just culturally people wouldn’t accept it?
yvan: Well, to borrow baraqiel’s concept of “tooling,” I am not suggesting that this would be a complete colution, just that it does provide a sort of stage for voices that are not “commercially viable.”
@PSoul: Yeah, culturally and politically Americans are so used to having our TV and radio be free-market, consumer-driven enterprises that it’s basically impossible to make them state-owned/run at this point. The communications lobby is extremely powerful and I think voters would flip out if you proposed using tax dollars to nationalize the media–we can barely get the gov’t to give pennies to NPR or PBS as it is.
I feel like we’ve had one model for media in this country for so long that changing it would be like trying to put toothpaste back in the tube.
PS – I get that, but in a completely theoretical, “I don’t have to worry about the hassle of getting people to agree to this or to agree to pay for it” kind of way it also seems problematic.
If it’s state-run or state-funded, doesn’t that open the door for the state to completely manipulate who’s being heard and what they’re saying? I feel like part of the reason PBS and NPR are so good now (read: liberal, thoughtful, interesting) is because they’re kind of vaguely underground as opposed to all the fancy channels. If people in Congress paid attention to them, if they gave them more money and more of their time, they would totally crack down on programming. We have crazypants Congresspeople with no sense of history, fairness, or even civility, really. The right tends to elect extremists (here lately, at least). Michele Bachman suggested an inquiry to weed out the Socialists in Congress, ffs.
All of that is just to say, if we suddenly had an amazing platform like the BBC or CBC, without a society overhaul it’d be featuring Pat Robertson’s Patriotic Family Hour in about a week and a half.
To say all that more concisely: a broader range of voices are heard on NPR than on CNN, and on CNN than on the floor of the House, and I worry that putting those guys in charge would actually be a step backward.
Actually, state-supported media isn’t what I meant at all. I mean that currently we conceive of protecting our rights and the rights of others to be a patriotic act in some sense, no? Although of course that changes a lot depending on context, but basically the principle is there — given how highly we value rights, it’s seen as a moral good to enact your rights and protect them. Is there a way we could include equal access to the conception of the right? Or perhaps a more realistic view of equal access. I guess what I’m trying to say is that I wonder if we could change the discourse so that equal access to platforms is part of the conceptualization of free speech, so that culturally speaking, maintaining equal access to free speech is seen as patriotic and a moral good from the rights standpoint as well as from the anti-oppression standpoint.
Perhaps I’m being overly utopian here.
I guess I’ll attempt to roll with Mr. Delgado’s abstract to illustrate my problem with this. I can conceive of two types of “ideas” promoted by Group C: (1) obviously political ones seeking to enrich Group C economically and provide its members with more opportunity, and (2) squishier ones dealing with the cultural discourse/art/history/philosophy etc. specific to Group C.
I order for Type 1 ideas to become more salient, they require a government that is sympathetic to the plight of Group C. If poor old Group C could get its hands on some air time in a legit forum, its ideas could gain traction and then perhaps it would convince Groups A and B of the immorality of the current system and convince them to support public policy seeking to correct the inequities perpetuated in this society. But wait…the government is already sympathetic to the plight of Group C, so why go through all this hassle? Why doesn’t this sympathetic government address these inequities directly?
As for Type 2 ideas, the government obviously has a preference for Group C in some respect, so how far does it go in subsidizing/promoting Group C in order to make its Type 2 ideas more salient and catalyze their acceptance/integration into the canon or whatever? If Groups A, B and C all get equal airtime and funding but Group A’s ideas reign triumphant, does the government incorporate more Group C Type 2 ideas unilaterally? What about Group D, who thinks that space aliens want to churn all God-loving white people into baby food–where is Group D’s piece of the pie?
I guess my primary question is, if tinkering with this right presupposes a particular perpetual ideological leaning by the government, wouldn’t it be easier to just establish, as first priorities, the regulation of material wealth and opportunity (more) in favor of Group C, a narrative favorable to Group C, and the punishment of negative stereotypes of and attitudes toward Group C? Why go through the kabuki theater of a “forum” and “debate” at all?
I just wrote a short essay on the word “cunt” and was reading some Judith Butler (again) to reacquaint myself with some of her ideas. My piece was more about language and speech theory than legal stuff, though.
See, the thing is that I find Butler’s arguments about how restricting freedom of speech, by which she meant giving the government the right and ability to restrict it, would actually hurt hypothetical group C more than it would help, because the government is composed of mostly group A. Which I think is probably right. But at the same time, I found MacKinnon’s work in Only Words to be far more in line with my own opinions on speech, which is basically that words, some words, are more than just words. Butler addresses this as well, but as far as I can tell, for her it doesn’t matter that much because restricting hate speech inevitably restricts marginalized speech.
I guess for me, it’s less about group C having a platform in media than it is about specific interactions between individuals. A few months ago this guy started walking behind me while I was walking my dog, making pleasant conversation about him. Then after a few exchanges he started telling me how what I needed was to be fucked, that I needed a kid instead of a dog and so what I needed was a hard fucking, etc etc. It was extremely clear to me that this person was threatening to rape me. I felt terrified that he was going to come over and try to hurt me and that my dog would kill him and they would take my dog away from me, but in my brain I was like “Goddamn it fuck this guy!” because I knew that he was threatening me with violence. Then, after I got home in one piece and with no dead criminals on my dog’s conscience, I was fantasizing about what I would have done in alternate universes, including saying a command to my dog that would turn him into a hell hound death machine, and calling the cops and reporting him. But in that second fantasy, I realized that if I called any cops and told them that some guy was following me, telling me I needed to be fucked so that I could have a baby, they probably wouldn’t agree with me that the dude was threatening me. Now, legally I know that if he had said “I am going to rape you” that would pretty much have been illegal. Because that would be a threat, and threats aren’t covered under the 1st Amendment. But would anyone agree that “You need to be fucked is what you need, so you can have a baby instead of a dog” was a threat? Should what he said to me have been illegal? That exchange totally fucked me up, and for weeks after I wouldn’t walk my dog alone late at night because I was scared–I made my boyfriend walk with me, and trust that bringing a male chaperon with me made me feel like I had a bomb in my stomach and was about to explode, I was so angry/frustrated/sad/humiliated/etc. So this guy’s right to not-threaten threaten me basically trumped my right to walk around my neighborhood alone at night without feeling like I was under attack–the first and most acute curtailing of that right was during the actual exchange itself, when he was threatening me, but continued for several weeks after it. Why should that kind of speech be more important than my safety?
But you know, I still can’t really think of how to deal with the reality that the government is made up of “group A,” or a bunch of men who would probably agree with that dude that what I need is to get fucked, have a baby, and STFU. I mean, I don’t actually even know if he had said “I am going to rape you,” if that would have been considered a threat, or threatening enough to get arrested.
Whenever the topic of free speech comes up, I tend to think of stalkers. I can’t help but see all kinds of parallels, at the last, in the issues, because stalkers basically exercise their rights at the expense of other folks’ rights, just like the right of a dudely old rich white dude to talk effectively trumps the right of a poor black lesbian deaf tween to talk.