How Free Should Speech Be?

With police arresting 2,500 Londoners over the past 5 years for sending electronic communications that cause “annoyance, inconvenience or needless anxiety”, is free speech dead in the Western world? Are we entering into an age of authoritarian censorship? Is Europe fast becoming China?

Censorship and political correctness is not yet as bad in the West as it is in totalitarian China… according to some YouTubers, in certain respects, it’s already worse. As we condemn the Chinese for censoring the internet with their Great Firewall, the U.K. government has raised its own “Great British Firewall” to “protect” us from material that might turn us into terrorists… “terrorist” content like… studies linking vaccines with autism???? (If you’re in the U.K., go to this web page, click on the link in the second line of the second paragraph that says “study” and see what you get). So, to what extent is it O.K. to censor communication? It seems that whenever a government organization is given the power to censor dangerous communication, mission creep will always end with it censoring all information that influences public opinion in ways that politicians don’t like.

(It is not my intention promote any particular position on vaccination, merely to support the right of citizens to read about it without government interference.)

Perhaps there is some truth in John F Kennedy’s warning:

“And there is a very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment”

Without clear red lines that limit government censorship – we in the democratic west will lose everything. Every hard won right past generations struggled for centuries to secure could be lost in a few short decades. Once free speech goes, due process will follow shortly. Once due process goes, absolute tyranny will follow irrespective of any laws on paper.

In this post I will try to identify what aspects of free speech should be ring-fenced at all costs and without compromise. The issue of speech and communication is, unfortunately, a lot more tangled and complex than at first meets the eye, but hopefully people of all political inclinations will see some sense in a few proposals here – or at least acquire food for further discussion.

I will divide speech into 8 sub-classes:

• Communication between consenting adults
• Harassment
• Sharing personal information
• Communication at organized events and on private property
• Communication in the Workplace
• Libel and copyright infringement
• Misinformation resulting in injury
• Communication to organize activities that violate the law

 

Communication Between Consenting Adults

 

The free flow of information is as necessary for justice as the free flow of blood is for health or the free flow of money is for prosperity. At the very least, the right of consenting adults to privately exchange information and opinions with each other (unless they are actually plotting to directly violate the law in a tangible way) should be absolute and sacrosanct. Consensual communication should be immune from legal proceedings that relate to causing offence – since participants can avoid offence through withdrawing consent – including disorganized informal expressions of hatred (but not necessarily incitements to violence, property damage, theft or other illegal activities), so long as potentially offensive expressions are not directed at parties who do not wish to see them against their will. Ultimately, most published material is consensual and non-directed whether a book, a film or a blog. Posters in public spaces, billboards in the front of shops, or handing out leaflets to strangers on the street would not automatically qualify as consensual communication.

Even in the case of consensual communication (especially mass-publication), there is still the matter of violating someone’s privacy by publishing someone’s name, date of birth, home address, bank details, or other sensitive information. As well as libel or copyright infringement (discussed later).

 

Harassment

 

One of the most important distinctions between speech that should be immune from the law (or almost immune) and speech that may (though not necessarily) entail a legal responsibility is the distinction between consensual and non-consensual communication. We need to draw a clear line between communication and harassment. No one has the right to demand the time and attention of another human being (even worker-employer relationships are initiated with a job application by the worker), in fact a non-consensual, uncompensated demand on the attention of a stranger is not so very different from making a demand on their labour – a kind of slavery. Harassment is continuing to communicate, follow or man-handle someone after they explicitly tell you they wish to be left alone. In most cases, harassed private individuals should have legal recourse against their harassers.

There are exceptions where harassment may serve the public interest. Reporters might follow people who have acted unethically to publicly shame them. Perhaps a bank manager who gave out dodgy loans, a rogue trader who messed up the houses of clients by doing a shoddy job, a restaurant owner that added rats to people’s food, a CEO, whose company dumped toxic chemicals into drinking water and gave resident health problems, or a politician who embezzled public money. While most disputes where the party who has harmed the other does not wish to engage with them are best dealt with in court, the right of the press to confront some individuals that would rather not be confronted in order to serve the public interest is an important safeguard in a world where justice is imperfect,  judges can be bribed, and courts corrupted. I do, however, reject the notion that just being a celebrity – and nothing else – confers the public, or the press, with some kind of “right to harass”. Although, unfortunately, this seems to be the de facto norm today.

I think people have some right to verbally confront those who bad-mouth them behind their backs, or have damaged them in some malignant or negligent way – so long as a formal minimum level of good-manners is maintained during such confrontations. If you want the right not to be contacted by someone, don’t talk about them.

The other exception is debt collectors or anyone else with whom you have voluntarily entered into a contractual agreement that has not been honoured. Such people also have the right to harass (within limits).

Shouting hate-filled abuse in someone’s face against their will is not freedom of expression. It is harassment. If we make this clear distinction, and give members of the public confidence that the law will protect them from such disturbing experiences, then it should be possible to ring-fence the important elements of free speech and expression from legal censorship.

In addition to talking to someone who doesn’t want to talk to you, other forms of personally directed communication such as phone, snail mail or email, and private messages of all kinds in which the recipient has clearly expressed a desire not to receive them, should not qualify as protected forms of free expression. Neither should material handed to people in leaflets or large billboards in public space (not to say that such activities should be forbidden, but merely that they are more accountable for publicized content than more consensual media). Repeatedly using the @ sign in twitter after the account owner asks you to stop is a grey area. However, other than this, non-directed tweets and other social media messaging to followers who can unfriend or unfollow you at their leisure should count as protected consensual forms of free expression.

Reaching out to strangers from time to time is an important part of business and life. The key issue is when someone has made it clear they do not want to be communicated to either directly informing the communicator in question or by broadcasting a general message such as: No Unsolicited Mail.

But what about someone yelling in public space? There are certain ways of interacting with strangers for the first time that will obviously be distressing. I think the answer here is to collectivise public disorder, whether it be someone who wanders around shouting offensive things a strangers or hands out offensive leaflets. If numerous people complain to the police, the policemen should have the power to speak on behalf of the public and tell the person causing the disorder that members of the public have collectively withdrawn their consent to such an unsolicited form of communication. The police should only have the power to press charges if, after giving the warning, the person in question continues to approach and offend strangers. There should also be and expiry date (perhaps a week) after which said person can resume talking to the public until he is warned again – and so on. The expiry date is important, as people’s ability to approach strangers to initiate contact should be reasonably protected. (Harassment mostly only occurs after someone explicitly says: “Leave me alone.”)

Answering a question is never harassment. If you ask someone a question, then you implicitly permit them to answer it in any way that they want.

 

Sharing Personal Information

 

Gossiping is a part of life. If all gossip was forbidden, life would suck. Nevertheless, some private information classes have zero gossip value and, if shared, could expose individuals to physical or financial harm. Such obviously sensitive information is physical location and financial information. To physically assault someone, you first need to know their whereabouts, so publicizing someone’s whereabouts can expose them to harm. The same applies to financial information, or passwords and usernames in general. Email addresses are a grey area. While it is probably best to show discretion, cc-ing people onto small lists (of, say, less than 10) is often an appropriate form of introduction. Nevertheless, if someone explicitly tells you not to share their email address with others, this must be respected. As lists get larger, it becomes increasingly important not to communicate with those on the list in a way that they have not consented to.

 

Communicating At Organized Events and on Private Property

 

If someone walks away from you and you needlessly pester them and get in their face – that’s harassment. But what if many people simultaneously attend an event that they feel they will get value from, and other participants spoil their experience? They may not like what you say, while remaining in the event for other reasons.

Interactive events, question and answers sessions, clubs, conferences, and organizations in general, are a fundamental component of civil society with great importance and value. A place where different people can meet and discuss things with others, where introductions and, perhaps even new friendships, can be made, yet whenever lots of people get together, there will always be the danger of agro. Some participants may take great offence at what others say or do. And if both opponents wish to remain in the venue, or meeting place, things might get nasty.

One solution is to give the organizer total sovereign power to exclude anyone they want from any event they are organising. While such dictatorial power may appear to introduce an inequality between organizer and participant, everyone is free to organize their own events. An event’s size is simply determined by the number of participants who decide to attend. Organizers of large events want people to attend and if they unfairly exclude people, participation levels will drop precipitously. The greatest punishment participants can dole out to an event organizer is to walk out in large numbers. So while giving dictatorial exclusion powers to organizers may seem unjust – competition between different organizations will keep such dictatorial powers in check.

It is worth mentioning that repeated, deliberate physical contact, against the will of the person being contacted at an event, is not the same as speaking to someone against their will and can count as harassment – irrespective of any position taken by the event organizer. Organizers have a responsibility to take reasonable measures to ensure the physical safety of participants.

Beyond that, I would like to add two details: the person who pays for a space (either by owning or renting it) takes precedence over the organizer if they are different people. Say, for example, a group regularly meets in a café, and the person organizing the meeting excludes one attendee, but that attendee remains in the café. If the café owner says they can stay, that decision should supersede that of the meeting organizer. Social networks, where users build up long term value (such as connections to friends or followers), should have complete discretion in setting the policies they adopt. However, once they commit to a policy, they must not exclude members in a manner that violates their own policy. The terms of service should be as binding on the writer of a contract as they are on the readers.

Moderators of comments have a similar level of discretion over which comments they publish.

In a similar way, what if some performer at a venue offends an audience who attended to see someone else? While members of the audience may complain to the venue organizer and while the venue organizer may, at their discretion, exclude the performer, this decision is the sole discretion of the venue organizer. The venue which the organizer creates, can be viewed as a consensual form of communication that participants can choose to accept or reject in totality. Although if attendants bought tickets there might be some cases where they could claim their money back due to false advertising.

There is a case for punishing organizers that consciously oversee venues that systematically incite participants to engage in violence, theft or any other illegal activities. Though, as with the press and harassment, on occasions inciting the public to break the law may serve the public interest (such as if the law is unfair or immoral). Laws against incitement should only apply to physical events and not digital publications, as physically attended events have a greater effect in swaying people’s minds and initiating mob activity.

There are probably some other modifications to the extent that event organizers should be given dictatorial exclusion powers, but this post is long enough as it is.

 

Besides events, there is private property. If you are on someone else’s property, whether residential or commercial (such as a shop), then the owner of that property has the right to communicate with you while you are on their property. Furthermore, the owner can delegate the right to communicate to anyone they wish (such as a shop assistant or security guard who does not own the shop). Broadly speaking, the same principle applies to places of work. The owner of a workplace has the right to communicate with employees who work there, even against their will, so long as they remain on the premises (which they have a right to leave) and to delegate that right to others.

Needless to say, the owners or renters of private property also have the right to expel whoever they want.

This also applies to digital space. Email providers have a right to send emails to accounts that are registered with them (even against the will of users), the same applies to the right of Facebook, Twitter or LinkedIn to send messages to the users of their service through their internal messaging systems (even against the will of users). However, unlike physical venues, digital service providers should not get dictatorial powers to allow other users to send unwelcome messages to each other.

 

Communication In The Workplace

 

The workplace is a special kind of venue, as employees often cannot leave without great financial sacrifice. As such, giving “the venue organizer” (i.e. the boss) total unregulated dictatorial powers of exclusion won’t work, as it is often much harder to find a new job than join a new club. And so competition between workplaces will have less of a moderating influence since the labour market is currently a buyer’s market (hopefully The Countryside Living Allowance  could change that).

On the one hand, sweeping anti-harassment laws would make workplaces totally dysfunctional, toxic environments. If you have agreed to work at a job for money, that implies agreeing to interact with your colleagues professionally. Balancing the law to protect employees from workplace bullying while enabling frank and effective communication, and a workplace environment where people don’t feel they’re in constant danger of getting sued, is a delicate matter which a single blog post cannot disentangle.

 

Libel and Copyright Infringement

 

There is a serious danger that creeping copyright infringement and libel laws could kill free speech and democracy through the death of a thousand cuts. People’s ability to complain, when they – or others – have been abused, swindled or when their neighbourhoods and the planet get damaged, is essential for justice and democracy. Yet this necessarily involves accusing other people of causing harm and damage. Laws that allow individuals to sue for libel and defamation threaten our ability to shine the light on injustices that cause damage and suffering.

The problem with complex laws, that are open to interpretation, is those with money to hire good lawyers usually win. Furthermore, even if complex laws protect someone’s ability accuse someone else, many victims, who do not understand the legal system, may still be intimidated into self-censorship for fear of libel and anti-defamation lawsuits. Without affordable legal advice, they cannot know if they are protected.

Similar problems lurk behind copyright laws. The ability to criticise and quote the works of others is essential to informed political debate. If someone writes a book, makes a film, or has an interview, where false or misleading statements are made, it is important that others can criticise their quotes and set the record straight. Yet if they are not allowed to quote them, for fear of infringing their copyright, this will be impossible. Many documentaries, which draw attention to a range of important human rights and environmental issues, often need footage from a wide variety of sources. Overzealous copyright laws could stifle these works.

We live in an age where everyone and everything is surveilled all the time. There are vast archives of data…but who owns them? If only a tiny subsection of society owns the copyright to most of it, they will have a monopoly privilege to slice and dice it into narratives and propaganda of their choosing to convince anyone of anything while those without copyright may not be able to critique it without getting sued for infringement.

Fair Use legislation is there to defend against this, but it is quite ambiguous and the penalties for falling on the wrong side of it are severe: $30,000 per infringement. It is critical that people become fully aware of the ramifications for justice and democracy if we let Fair Use get chipped away.

This is the problem: Most people go about their daily lives not worrying about copyright. Most don’t consider copyright law or anti-defamation law when they vote in elections. Yet if these laws creep in the wrong direction, they could provide an ideal backdoor route to restrict free speech.

…and yet…

Should someone’s business be ruined because someone else tells a lie (or even reveals an embarrassing truth) about them?

It is right that someone should profit from another’s work without paying the creator a penny?

When it comes to defamation, the issue is complex.

But one way to stop copyright from smothering documentary makers and other creators of compilations would be to only let infringed parties sue for a portion of the profits of works that quotes substantial portions of their creation and to set a floor that guarantees that those who incorporate portions of other people’s work into their work receive at least 50% of their compilation’s  profits. The sum total of aggregate royalties to all parties that sue for copyright infringement in a compilation should never exceed 50% of the net profits derived from the compilation. $30,000 fines for statutory infringement in compilations should be eliminated completely – the danger of destroying freedom of speech, expression and the use of quotes and other source material in informed debate far outweighs the danger of not compensating creators for the value of their creation.

 

The general public needs to pay a lot more attention to legal creep in these critical areas of law before it smothers their free speech entirely. The big problem with “leaving it to the experts” is that rich people and corporations are usually the ones paying experts to lobby to modify these areas of law in ways often at odds with public interest.

 

Misinformation Resulting in Injury

 

While spreading lies and misinformation may not be generically illegal, on occasions when it causes damage to life and property, the legal consequences can be severe. Perjury is a crime that relates to lies in court and the punishment is years behind bars. Beyond that, there is a grey area between giving out damaging financial advice and confidence trickery. Certainly, someone who falsely poses as financial adviser and misrepresents the risk of an investment can face lawsuits from investors who’ve lost millions from the advice, along with fines and imprisonment. Someone whose misinformation on health issues results in a loss of life can face consequence of similar or greater severity.

This all may seem very reasonable, yet sometimes punishing people for spreading damaging misinformation can be problematic. A big issue is health advice. When standard medicine has a tried and trusted cure for an ailment with minimal side effects, going with the treatment prescribed by your GP is a no-brainer. However, for many health conditions, such as cancer, standard treatments are not 100% effective, and even if you follow your GP’s advice you could still die. Many chronic health conditions require continual doses of medicines that are expensive, have dangerous side effects, and reduce people’s quality of life. In cases where the standard treatment for an ailment is unsatisfactory, it is understandable that some people will search the internet for better solutions either in addition to, or in place of, prescribed treatments.

The internet health scene spans the full spectrum from charlatan snake oil salesmen who charge big up front money for non-cures to simple, incredibly helpful, cheap, life changing advice, to terrible advice that is downright dangerous. It is understandable that some people would want to shut it down to protect public health.

…and yet there’s a problem with this…

Existing medicine is strongly biased towards researching new chemical compounds with curative properties as opposed to exploring new (previously unknown) curative properties possessed by existing compounds. This is not the most effective use of resources and has everything to do with patent law. The existing compounds cannot be patented, so systematic research into new curative properties of existing chemical compounds is not, for the most part, profitable.

Yet the long term side effects of injesting compounds that can be found in the food section of the supermarket are far better known than the long term effects of injesting a newly discovered chemical compound. At the very least, chemicals contained in regularly eaten foodstuffs have stood the test of time and have been eaten by billions. Conversely, control trials of new chemical compounds are conducted over shorter periods on smaller groups. These can screen for short-term side effects, but can miss potentially damaging side effects of long term dosage on small, vulnerable portions of the population.

 

You can find hundreds of household cures on the internet. Coconut oil for skin rashes and earaches, garlic for flu, someone even testified that he has successfully used a vibrator to cure a chronic case of haemorrhoids!!! Many of these cures have not been systematically tested in large expensive control trials, principally because they cannot be patented. All we can go on is hearsay and personal stories.

Health bloggers have to be careful about what they say. Even if a given remedy really does have beneficial health effects if it isn’t “authorized” by the medical status quo, due to a lack of evidence from control trials, (which is often due to an absence of control trials due to lack of funding) then if someone tries the remedy and suffers as a result, there could be a danger the health blogger might be held accountable.

In all high-stakes fields (engineering, medicine, mental health) there is a severe bias towards the status quo. Conformity becomes a protective umbrella. It is inevitable that from time to time, people will die, but if you follow the best practice standards in your field and someone dies, then you are not legally accountable. However, once you move away from those standards, you enter a world of personal liability. One might argue that this protects people, but the reverse can also be true. If procedure A is accepted as best practice and kills 10% of patients, and procedure B is not accepted as best practice but only kills 5% of patients, then not following best practice could actually save people. Yet, paradoxically, the physician who follows best practice is legally immune from the consequences of the 10% of his patients that die while the physician that did not follow best practice could be held personally accountable for the 5% of his patients that died – and might be imprisoned for negligence as a result.

Thus, while best practice can prevent standards from slipping it is also a huge obstacle to improvement and deters all but the least risk averse physicians from seeking better treatments to save lives.

We should research new curative properties of existing compounds, such as foods and cosmetics, more systematically, but until more funding for such research is made available, reading about home remedies on the internet might be the best we can do. It is always good to first talk to a GP about a medical problem (which is pretty much what every medical website says to cover their arse). Nevertheless, if the remedy a GP prescribes is not fully effective, people must have the right to seek better remedies (if they so wish) on the internet at their own risk. While others must have the right to give advice, so long as they do not misrepresent their qualifications.

And laws that protect people from damaging misinformation must not expand to the point that they suppress information of uncertain helpfulness. Just because it is uncertain whether something is helpful doesn’t imply it necessarily isn’t.

 

Communication to Organize Activities That Violate the Law

 

Attempts to break the law are illegal even if they fail. And communicating to organize others to break a law can be considered part of an attempt. The key thing is to distinguish between an “attempt” and a “fantasy”, evidence such as the level of detail in the communication (such as serious information gathering and analysis), and the physical activities that accompany it, contribute to distinguishing serious attempts from idle fantasies. But there can be no doubt that, in some cases, communication could be the lion’s share of evidence to confirm that an attempt to break the law was serious. So this is a further class of criminal communication.

 

Final Remarks

 

It is understandable why all forms of censorship concern us. You can only censor others if you are more powerful than they. If you have less power than another, you cannot sensor them however much you might want to, so the ultimate decision about what to censor and what not to censor will always rest in the hands of the most powerful actor (be they a person or an institution). Free communication and the innate power of uncontrolled gossip have historically been deployed to curb the shamelessness and impunity of society’s more powerful members and to limit the abuses they can get away with.

And yet, from the above considerations it seems that we cannot ringfence the absolute freedom of every conceivable form of communication. Some forms of communication can do great damage to others and it seems morally necessary to sometimes regulate them (fraud at the very least). Whenever we say: “I believe in absolute freedom of expression” it must always be qualified by something like “excepted in cases of fraud, copyright infringement, perjury and reputation damage caused by libel.”

But can these exceptions be contained within an impregnable bubble, or will a creep in legislative interpretation enable those in power to incrementally warp and expand the sphere of acceptable censorship to the point of acquiring the de facto ability to censor anything they want?

 

John

 

Do You Have a Burning Desire to Make a Comment?

 

Have you found this article thought provoking? Is there some message you desperately want to communicate to future readers but can’t because my comment section automatically closes 28 days after my posts go live?

If so, you might be interested to know that I reopen any comments section to members of my mailing on request as one of the perks of joining.

If you’d like to leave a comment, simply scroll to the bottom of the page, sign on to my mailing list and them email me with a request to reopen the comments section for this post.

Happy Commenting!

John