Yet another example of our European allies just not understanding freedom of speech. Prosecutors in Germany have announced that they'll be watching Madonna's concerts there to make sure she doesn't violate the law against insulting religious beliefs. There's a point in her concert, apparently, where she puts on a crown of thorns and sings a song from a mirrored cross. The Roman Catholic Church has condemned the performance, which is fine - you don't like it, you have a right to say so. But no government has the legitimate authority to tell her she can't do it just because some people find it insulting. No one has a right not to be offended by someone else's views; it really is that simple. I can't imagine for the life of me why anyone would want to watch Madonna sing anything, but even less can I imagine why the German government thinks this is a legitimate concern of theirs under any circumstances.
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Ed, I'm not understanding the basis of your "..no government has the legitimate authority..." claim.
Are you saying that there is some fundamental principle of legitimate authority that indicates this and transcends national constitutions? I'm confused since I thought that most of these countries in Western Europe were based on some forms of democratic ideals, voting, legitimate constitutions, etc.
You're not one of those world government UN types are you?
I disagree with Ted.
The fact that some countries (Germany included) are based on some form of democracy is completly irrelevant on this matter.
There is a big difference between protect people from offensive display which are forced to them and censorship of a show where everyone is there by their own choice.
Some don't like the Madonna's show? They won't go to see it and they won't be offended.
If someone want to attend, he/she knows exactly what to expect.
What Germany is trying to do is to impose a specific kind of morality by censoring dissenting exibits.
This whole European trend of outlawing certain speech so people will not get offended, scares me to no end. I want the crazies to express their views. It helps my cause by letting me know who they are, and letting everyone else see what raving maniacs they are. Most of all I want to be able to say things back to the fundies when they claim how perverted and immoral I am for having a spouse of the same sex for the last six years and raising our kids the best we can. There is no right more important than the one that lets me speak out against those that want to take my other rights away. If the Germans don't like it then they can $&*(#Q (*$# my $E$*#).
"Yet another example of our European allies just not understanding freedom of speech."
Luckily the law here in the UK against insulting religious beliefs didn't get through Parliment.
Ted wrote:
Yes, I am absolutely saying that there is some fundamental principle of legitimate authority, a principle stated most eloquently in our Declaration of Independence. Governments are instituted to protect our pre-existing rights, rights which are unalienable and immutable. The moment they act in contravention of that principle they are exercising illegitimate authority.
Well, I guess that's as good an excuse as any for bureaucrats to stare at Madonna for two hours at their government's expense. I suppose they topped off the evening by looking for more offensive material at the nearest nudie bar...
I don't know why you disagree with me. I'm just asking if a specific population has a right to pick their own laws or they need to accept ours. If they need to accept ours, the best demonstrated method appears to be from the barel of a gun.
A few days ago I suggested that Eric Raymond assume the poster child position for Wiccans, but he is a multi-faceted and complex guy, and his neolibertarian views are also applicable here. We should imperialize and liberate the world into our sensibilities.
We probably should cut the governmental support to public media over in France while we're at it. They have way too many government funded political talk shows and their population is inordinately politically minded when they should be focused on the free market supported messages that permeate our culture.That type of government promotion of viewpoint does nothing more than promote statism.
Ted-
For crying out loud, I didn't suggest that we invade Germany over it. I just criticized it, based upon the principle stated above, a principle I consider inviolable.
Bloody 'ell, what's all the fuss? All Ed was saying was that (in his opinion at least, and BTW in mine as well) all persons have an inalienable right to free speech, which no government has a right to deny. Such a statement is no more out of line than a statement that no one has a right to kill another person without an obvious just cause.
Of course he's judging the actions of other governments according to his own morals. We do that all the time.
I'm sorry, Ted.
Probably I didn't explain myself very well.
What I meant was that a democracy has the right to decide what's offensive by vote (or other democratic means) only when it comes to "forced displays".
Let me explain: If I walk across a street and two men are engaging in public sex, my right not to be offended has been violated because I didn't choose to see those two men. That display was, in some ways, forced on me.
But in the Madonna concert situation, nobody is forced to watch or attend it.
So, even if someone find it offensive, if could avoid to be offended just by not attend it.
That's what I meant, because what I understood from your writing was that a coutry has the right to censor what "popular vote" thinks it's offensive (or innapropriate), which I disagree with.
Regards, Diego
Ted: The issue is, do you derive such rights as you possess from a piece of paper (a constitution) or are they inherent in persons regardless of political circumstances? There are two ways forward.
The first is a Nartural Law argument. This hasn't kept the best of company in recent years, but remains a viable argument, particularly if one is theistically inclined. Theism is not necessary, however.
The other way forward is an argument based solely upon the human condition. Think John Dewey or Buckminster Fuller for different applications.
Believeing in the power of paper, however, is a mistake. Legal Positivism is, in my opinion, always one step short of dictatorship, regardless of the underlying political system. W's supporters right now are pushing a sort of super-positivism, in that the law does not even have to be formally enacted, since the actions of the unitary executive speak for themselves. To say that this is a threat to freedom is an understatement.
Oh Ed, I didn't mean to imply that you suggested an invasion. I was the one that suggested that course of action. It seems to work pretty well, and when I find a hammer, I like to use it a lot.
I just thought that people have a right to determine their own standards and that our laws didn't necessarily trump theirs, particularly if theirs went through something that could be considered transparent and deliberative process.
I get very confused that the Europeans, are such idiots today, when in the past they were so smart giving us the bulk of the philosophers that we hold dear. It must be something in the water, or maybe it's their immigration policies. Or maybe it's the equality thing, because ever since the Declaration of the Rights of Man, they've been on the downswing and we're ascendant. I'll be the first to say that I just don't know. I usually just blame the brown people that they let in with their lax immigration and their appeasonist policies. There's a certain economy of thought when I blame their ills on their socialism, immigration and cowardice and I can live with it. And so can the rest of my fellow travellers. I'm not speaking for you though, so don't misunderstand me.
Myself, I like their overall view that religion is fine "as long as it does not trouble the public order established by the law." -- This is probably where culturally our arcs diverge -- the US makes no such distinction, and God has rewarded us by making us a supreme ultrapower, and has rightly punished the French for taking His exalted place and placing it below the laws of man and good conduct. It may appear that speech/expression is being controlled for the purpose of religion, but I see it as desire to control those unruly European tempers.
What you said was:
And my question was if those eloquent principles from the US Declaration of Independence should be a binding or guiding the Germans. I'm not sure it's a binding documents on us as I see it. If they want to cart off Madonna because she broke their law, I for one will cheer them on. She needs carting off, but bad. As a BBQ fan, you may be surprised to learn that in Germany, BBQ grilling in close quarters is quite a no-no because that delicious aroma wafts over to the neighbor's yard. Talk about restricting freedom!
With regard to free speech, I think I'm in the camp with the Europeans; that some reasonable restrictions on free speech are OK with me if there's a benefit. The benefit mostly being keeping demagogues from inciting peasants to burn the village over the hill.
How do I rationalize giving away any free speech whatsoever? What's to keep the slippery slope at bay? I don't know -- I guess I'd follow the porn guidelines. I know good porn when I see it, so maybe I'll know when onerous laws are imposed on me. But I don't worry about it too much because the US government would never allow demagogues to gain influence so that bad laws would pass.
I think I do understand your point -- I was just arguing the moral universality of it. :-)
Ted wrote:
I don't believe that "the people" (which really means the government) has a "right" to do anything that violates the rights of the individual, which I consider inviolable. If I believe that all men are equal under the law and endowed with rights that are unalienable, then I must also believe that this principle is applicable everywhere and always. After all, that is what unalienable means. I begin with the premise of self-ownership and self-determination for the individual as the central axiom of my entire notion of political legitimacy. Governments are only legitimate to the extent that they protect and preserve the individual's rights in that regard. Of course we, as a nation, can't enforce that idea outside of our own borders, but that has nothing to do with my consistent application of those principles regardless of who violates them.
This makes no sense to me at all. As loathsome as I find Madonna, she has precisely the same right to speak her mind as you or I do. The fact that Germany has passed a law does not make that law just, any more than it would if our own country passed such a law. Would you also cheer if Salman Rushdie was arrested in a Muslim country for violating their law by writing his book? If so, I find that appalling. If not, the only coherent reason why you would not cheer them on is because you recognize that such a law is unjust and violates the right to free speech. And if you can recognize that in, say, Iranian law then why treat German law (or American law, for that matter) any differently? It is unjust and tyrannical for governments to violate individual rights - always and in all places.
There's a few areas that I choose to address here (at the conclusion of which, you may decide I'm worse than the STACLUs):
1. Salman Rushdie has the good sense to stay in England and defend the Waffen SS. Rights go hand in hand with the use of brains. I don't see him making a book tour to Tehran to promote his works. He's a nice guy and a fine example of what passes for intellectualism, but could use some hair-plugs if he's going to taken seriously in the US. I don't see him going over to Tehran and saying, "I double dare you to slit my throat". There are people that will take him up on that dare. I don't think there's a shortage of people that take offense if you insult their fat mamma, so make sure your friends have the appropriate sense of humor when you tell off-color jokes.
On the other hand, Madonna (the Rushdie comparative US intellectual) knows full well that people have expressed issues with her artistic expression. And I use the term artistic expression in the most loose form possible since it is nothing but a grab for cash and in her case has been for years. So no, I don't find her fight worth fighting on principle -- it's more of a media marketing event. Others will defend her right to entertain so I'm sure she won't miss my support.
2. And yes, that's right -- I don't support universality while there are distinct national borders. I believe that it is up to those people, within those social groups, within their individual borderlines on the globe to get themselves out if they don't like it or alternately change their governments into some that they can live with. It can happen. The Argentinians did it. The Polish did it. The East Germans to some effect did it. The Russkies did it when it suited them. The Chinese are doing it in real time and appear to be kicking our asses (but I can't really complain given the benefit of cheap imports).
In short I find universality a nice idea that may take hold when conditions are suitable to the subgroup but to assume that universal values have the same VALUE and are shared between Bill Gates and some kid in Bombay is a stretch. The kid in Bombay may care more about getting a meal or a clean glass of water than protesting that his speech is being curtailed or that Bill's products are unfairly maligned by the EU bureaucrats. I've engaged some of those third worlders in these intellectual(?) exercises but overall they considered it a luxury that maybe they'd get to some day. I don't expect a 35-hr workweek, nor do I expect the Guatemalans to have the minimum wage as enacted in Sweden or the US. You know -- border differences.
Here's where I think we differ most: some people think that government is a monolithic, semi-abstract concept that stands on its own and gains legitimacy through it's own machinations - seeks power for itself in order to jackboot. Sometimes that government is a local school board, sometime a state assembly and sometimes the one that runs the country. But I think that the government is more than this monolithic abstraction -- it's the people, whether they be local, state or federal level, and although they're invariably stupid, the people usually get the government they want and deserve not the government that we think should be shoved down their throats. Dictatorship would be an exception, but last I heard Iran had an election and the guy we backed lost. The guy that won has a blog, but no English entry that I could find. Dammit, I was hoping for some good anti-semitic rants.
Overall, this is marginally bad for Rushdie. It plays into the hands of the Iranian cutthroat that wants to slit his throat -- but those cutthroats are people with problems too -- they'll try to work Rushdie right after PTA meeting obligation at the local Islamic school. If he can work the throatslittery into the schedule to pick up little Ali from soccer practice, it would probably be a good thing for him, but you know the traffic in downtown Tehran. It can be a bitch so it will probably wait for another day. Maybe the next time he visits London, but then -- he'll have to deal with British law after that fact, won't he?
I'm going to let this go at this point, because like I said, I think that I understand your desire for universal rights and justice. In theory, I support them too, just not in practice under a nationalistic banner.
If any universality holds true for me it's that most of us have a brain and when we've had enough, we rise up and deal with it. Until then I mostly support universal free porn on the internets.
Ted, I would argue that there are a core set of rights -- including particularly freedom of speech and association -- that are prerequisites to liberal democracy. Most of the authoritarian governments of our time have held elections. The enforcement of an official ideology instead is done by government censorship, by government control of art and speech, and by limiting affiliations.
Of course, what Germany is doing with regard to Madonna is a far reach from what happens in, say, Iran. Still, given the centrality of these civil rights to the existence of liberal democracy, it is not surprising that they are more closely watched, even across borders, than other kinds of things.
You're missing the point completely. I don't assume that we have the same values. How could I? I am engaged in criticizing the very fact that they do not share this value. But I'm making an argument for why they should put the principle of free expression first, above whatever parochial interest they think is served by the laws I am objecting to. One can, of course, argue against my position but not merely by pointing out that they aren't accepted universally. Of course they aren't; if they were, I'd have nothing to write about. But they should be.
You're comparing apples to rocks here. No one suggests that every nation should be the same in every respect, and the examples you mention are questions of practical policy, which will obviously differ by situation and circumstance. But I'm talking about rights and the legitimate authority of governments and I don't believe those change. I doubt you do either, really. I doubt that you think it's okay for Iran to execute homosexuals or for China to imprison Christians and Tibetan Buddhists. My point is that you cannot coherently argue against those actions without presuming that your reasons for doing so are universal. The principle that the individual has the right to choose their own religion and not be thrown in jail for it, or has the right to have relationships with the same gender without being put to death for it are simply shortcuts for the basic principle that I posed - the right to self-determination. If that principle is not applicable universally, then you no longer have any principled objection to Iran or China in the examples above.
The mistake that you make is in thinking that the fundamental unit of society is "the people"; the fundamental unit is the individual, not a majority of individuals. If the people in the US voted to throw all gay people in jail, would that law be just? Of course it wouldn't. I would hope that you would join with me in condemning such a law as barbaric and tyrannical. But again, you cannot condemn such a law while simultaneously arguing that "the people" should get what they want. If "the people" want to violate the rights of the individual, they are acting unjustly - always and everywhere. If it is wrong to violate the rights of the individual, then it is wrong in the US, it's wrong in China, it's wrong in Germany, it's wrong everywhere. Jefferson recognized this when he made no distinction between tyrannical laws imposed by a King and tyrannical laws imposed by "the people":
The source of an unjust law does not change the fact that it is unjust. And again, I just don't think you really believe that it does. I'm sure that you would join me in condemning a vast range of unjust laws, both in the US and around the world. But again, you cannot make those arguments without making an argument that the principles on which they are based are universally applicable.
You completely misunderstand my point if you think it is offered under a "nationalistic banner". I assure you, you will never find a less nationalistic person than me, especially in this regard. Patriotism is utterly foreign to me. My allegiance is to principles, not governments or nationalities. When my government violates those principles, as it does often, I criticize my government vehemently. But I can argue based on those principles precisely because I believe they are universally applicable and inviolable.
Wow... I can't believe this is a thread about Madonna!
Ed:
Ted wasn't saying you were nationalist, just that rights will always be diminished under a "nationalist banner." Which brings us back to Legal Positivism again, since that is the doctrine Ted is essentially espousing, however much he agrees with freedom in the "ideal."
I'm paraphrasing here, but one of Germany's foremost legal scholars of the 1920s put it thus: "Any law -- no matter how vile -- must be recognized if it be passed with the proper formalities and ratified by the Executive." This is the road to concentration camps and the "Leader Principle."
No, Madonna's right to be mildly provacative is no great loss in the great scheme of things. But once government has the principal established, it will be nutball preachers, or communists, or mouthy libertarians, or maybe me. This is not a slippery slope: This is the iron law of government, that a right yielded never existed.
As it happens, the German police say they will not atend the concerts, merely interview a few concertgoers. And since they chose to be there, I assume they will not be filing complaints, even if her show is as lame as the last time I saw it. But the precedent is set.
Ed. If Madonna was using an image from any established religion, the law would be the same -- she could be prosecuted.
Ask yourself why does Germany have this law?
Is it because the Germans don't believe in free speech or because they have insulted the religious and cultural symbols of certain of their citizens in the past?
We all know the answer.
Having said that I believe that the law is anachronistic and probably needs repealing, but then I am British although I have lived here in Germany for 20 years.
Don't get me wrong Ed, I too believe in the fundamental human right of free speech. I believe in the right of so called famous people to make complete idiots of themselves in front of thousands of adoring acolytes. This applies to the Pope, Madonna, David Beckham and any politician you care to name.
Personally I think the German authorities are simply doing a CYA action in stating this publically based on the outcry earlier this week in Italy.
Will a prosecution result, probably not as I suspect the courts would throw it out almost straight away. Why? The law is there to protect religions and cultural symbols against persecution and insult, not against their use as marketing gimmicks.
Neutral Observer wrote:
She is using an image from an established religion - the crown of thorns and cross are obviously Christian imagery. I have no idea what the point is.
No, the problem with Germany is not that they "insulted the religious and cultural symbols" of their citizens in the past - no one has a right not to have their beliefs insulted. The problem with Germany is that they violated the rights of their citizens, and this law is also a violation of rights. Good intent does not change reality.
You can't persecute a symbol, you can only persecute a person. And as I said, there is no right not to be insulted. How could there possibly be? Everyone has beliefs that others find offensive and insulting. And everyone has the right to express those beliefs even when others find them offensive.
Well Dammit Ed. I promise this will be the last one. :-) Hope you keep a sense of humor.
I Disagree. The fundamental unit of society is a grouping of people. I just looked it up on Wikipedia although I'm told it's not a good idea to use for a reference.
Specifically: A society is a self-reproducing grouping of individuals occupying a particular territory, which may have its own distinctive culture and institutions.
Marion-Webster online backs that definition up if you don't care for Wikipedia.
I value individualistic thinking, but I realize that only through social interactions does defining inherent rights make any sense. An individual, alone, doesn't need to define rights -- the need to define them is only pertinent when interacting with another so that we have a common understanding. So thence rights can apply to individuals but only have definition and meanings in a group setting as the group permits. Maybe that's what you said above and I missed but these groups that do the defining are not universal.
To argue that inalienable rights exist outside social interaction is completely lost on me. I guess I'm not understanding what inalienable means or what an inalienable right is -- particularly if you depend on others for its quality of inaliableness.
I see that you have an issue with the fact that Iranians are stoning homosexuals or that Afghanis were shooting women in the back of the head on a soccer field. Yeah, that's not stuff I'd choose to do, but the rights I and thry have are only there courtesy to others a) giving them to me, and b) willing to punish violators by agreement.
I'd like someone to give me some of thes atomic, inviolable rights so that I can think on their self enforcement. I understand gravity as being inalienable here - I drink, I fall, the planet hits me hard. I repeat at will -- the result repeats.
But free speech? Only by the grace of others. I say something that pisses someone off and they blow my brains out or imprison me or ban my IP -- no more speech. Like a bitch, I now depend on others to prosecute this violator. (Say, did the criminal violate an inviolate right?)
I do believe those change. Hence we have different morality and governmental systems than we had thousands of years ago. Were those old systems and morals wrong? I dunno, they got us here didn't they? Slavery is wrong now, but many intelligent philosophers argued for their moral legitimacy and wealth is built on exploitation.
In general, libertarians don't like to hear that rights come from social groups (like the UN even ;-). But like I said, individuals have no needs of defined rights outside those groups. The question then is how broad and how the social group is defined to be valid and which member group the individual wants to enforce some specific rights. A country? An ethnic group? A religion? The UN Declaration?
I'd hate to disappoint you in this, but I am that ignorant on this subject because I choose to believe in my core that inalienable things are naturally self evident and immutable. Homosexuals that get executed in some part of the world have to depend on either my voice(es) or my guns to defend their inalienable rights (usually after the fact - like that helps them much). So to me, those rights are not natural or inviolate if they depend on my participation -- because, I am a lazy person that has to divvy up my compassion and outrage into 6.5B little slices, and there really is very little outrage in that to go around fairly. By nature, I am arbitrary, moody, and suffer from attention deficit and could go on for years watching blue-burka'd women get shot wearing their Saturday finery in a stadium, and only get around to enforce that atrocity when it suits me.
No, really, this is it. :-) and thanks for getting the nationalism thing kehrsam. Usually at this point people get really pissed and ban me for unyielding stupidity but like Frank Z says...
No, I'm not going to ban you for unyielding stupidity. But I'm not even going to bother responding to what you said above, as it completely and utterly misses the point in a way that should be obvious to absolutely everyone.
Excuse me, but I must protest. It rankles me to no end when people speak of Europe as restricting freedoms across the board, freedoms which are allowed in America. False. Recall the Danish government's defense of the cartoons which were so offensive to Muslims. Recall that Denmark was the first country to legalize gay marriage (in 1989, by the way), a freedom which, if I recall correctly, is still not allowed to Americans and which the government has actively attempted to permanently prevent.
Europe is not some homogenous heap of prohibitions. Please remember that.
I do no know whether Ed (or any others here) actually true free speech absolutists (and by this
I mean that freedom of speech should be absolute, that the only response to speech is other
speech, and that no speech of any kind should be actionable in any way), but I will note that
such a position is not endorsed by any constitution or government, including that of the USA.
Even under the US consitution, it is recognized that some limited cases of "speech" can indeed
cause injury, and thus can be legally actionable, either under civil law (as injury to a person,
eg: libel or slander) or even criminal law (as injury to the public, eg: "fire in a crowded
theatre" or "incitement to riot").
Thus, there is no difference in kind between German law and US law in this area, but only
a difference in degree. That is, German law recognizes a somewhat broader range of injuries to the
public via "speech" than does US law. Further, if my reading of German law is correct (and I
welcome correction if it is not), the standards for prosecution under the "offense" laws are quite
high: such speech must be insulting to some culture or relgion, intentionally so, and without
intellectual or artistic purpose or value. Which in turn means not only that criticism is unlikely
to run afoul of the law, but that it is actually rather difficult for any speech to do so.
It is not my intention here to support the German law on this matter (I am not German, do not
live under German law, and indeed have some concerns about it myself), but only to point out that
it is indeed not so very different than that of the US.
And I submit that the differences in degree that do exist can be explained by history: Europe,
and Germany in particular, has experienced in living memory cases in which "more speech" was not a
sufficient response to bad/hate speech.
Greg: and we see how brilliantly the German approach works. With all their laws against hate speech, the number of skinheards and neonazis is rising in Germany.
Two points.
Directly: and we see how well the US version works. How 'bout those girls from Prussian Blue,
huh? A simplistic response, to be sure -- but it was a response to a simplistic claim.
Less directly: as I pointed out (explicitly!), I am not proposing German law in this area as
superior to US law. I am merely pointing out, in response to a number of comments here, that the
difference between US and German law in this are is not difference in kind, but only a
difference in degree -- and not even a great deal of that. And further, that unless one is
a true free speech absolutist (and very few even radical libertarians are), then the
strident condemnations of German law appear to be on very shaky ground.
How about those girls from Prussian Blue? I am not sure what point you are trying to make here-- are you saying that because there are two teenage girls who have made themselves popular singing white supremicist songs, that free speech has somehow failed in America? Because I would say it's quite the opposite. They sing their songs, we allow them because we believe in free speech, and nobody gets hurt. That is how it is supposed to be.
Of course you can't get rid of hatred by outlawing hate speech-- that is exactly the point. You just create criminals where previously there were only unpopular opinions.
I'd go along with most of that, although in this age of globalisation and the internet (or indeed diaspora living) I think the territorial aspect is less relevant. Certainly rights only make any sense in terms of individuals interacting.
I find Greg's argument quite unconvincing. Of course it's true that no one is a free speech absolutist in the sense that he demands. Everyone recognizes that perjury and fraud are not protected by free speech, for example. But that does not support the conclusion that the difference here is only one of degree, not kind. Since, as he says, no one is a free speech absolutist, the baseline can't be free speech absolutism. The baseline is free speech with only those narrowly drawn exceptions necessary to protect another person from direct harm against their will or against deprivation of their rights. Clearly, perjury and fraud fall under those two categories, while "insult to religion" does not. The opinions of others do not harm us, nor do they deprive us of our rights. We can't possibly use that as a standard for legal sanction, for the obvious reason that everyone's opinions are insulting and offensive to someone. So this is not merely a difference of degree, it's a difference of kind. There is a very big difference between a government that has the authority to punish people solely for words that others find offensive, and governments that do not.
The fundamental unit of society is a grouping of people.
Wrong due to bad terminology: a "society" is an orderly grouping of people; people are therefore the "fundamental units" of a "society."
Yeah, that's not stuff I'd choose to do, but the rights I and thry have are only there courtesy to others a) giving them to me, and b) willing to punish violators by agreement.
In the pragmatic, Hobbseian sense, this is true: that's how it IS. But Ed is talking about what SHOULD BE, not what IS; and saying that we should all insist on certain inalienable rights, and base our governments and laws on the assumption that these rights exist equally for all persons.
Slavery is wrong now, but many intelligent philosophers argued for their moral legitimacy and wealth is built on exploitation.
So you're saying we can't insist on ANY code or concept of absolute right and wrong, merely because our ancestors had different opinions?
In re Gretchen's comment: No, I am not "saying ... that free speech has ... failed
in America". Rather, I am pointing out that if the continuing existence of racists in
Germany is a mark of the failure of the German system, then by the same token the continuing
existence of racists in the USA should be a mark of the failure of the American system. Or, to
put things is a less absurd way: the continuing existence of racism is a point against
neither the American nor the German speech law. Alternatively, "of course you can't
get rid of hatred by outlawing hate speech" -- but you also don't get rid of hatred by allowing
people to spread more hatred.
"The proper response to hate speech is more speech" is an excellent sentiment, and one with
which I am in agreement. But, as I pointed out previously, many Europeans, and Germans in
particular, have within living memory the experience of that being an inadequate
response.
You're making a faulty comparison. Germany is trying to get rid of hate speech by outlawing it (why else outlaw it?). America, meanwhile, is not trying to get rid of hate speech-- quite to the contrary, the constitution specifically protects it. The continuing existence of racism is a point against the German system because the elimination or diminishing of racism is presumably its goal. So not only is it harming people by removing their freedom when they haven't infringed on anyone else's rights, but it is ineffective in achieving the goal for which it supposedly so doing.
Ed, you can do better than this. I've already noted that the simplistic reading of "insult to
religion" is mistaken, and you simply ignored my comment to respond with your simplistic
"everyone's opinions are insulting and offensive to someone."
Leaving that aside, I would like to pull apart your statement that
"The baseline is free speech with only those narrowly drawn exceptions necessary to protect
another person from direct harm against their will or against deprivation of their
rights.
When you say "another person", do you mean strictly an individual, or do you allow that
groups of individuals can be harmed? And when you say "direct harm", does that mean that you
do not allow for the possibility of any indirect harm?
The problem I see is that, if you actually carry through what you appear to be suggesting
here, then you very quickly end up at a true absolutist position, as it is almost impossible to
find a situation to which your standard would actually apply.
For example, if I were to shout "fire in a crowded theatre", I cause no direct harm to
any individual. Certainly the consequences of my action are immediately foreseeable, but
the results are not direct, for all of those acting on my words are free to act or not, as
they will. Libel and slander are similarly not direct harm, for anyone has a choice to
heed my words or not. Even "perjury" is not direct harm, for my purjury is not
direct action against the person in the dock; rather, the court is acting. And even most
cases of "fraud" are not direct harm, but indirect.
And the general problem is that "speech" has consequences. Consider an extreme example:
person A tells person B to kill person C. If B does kill C, can A ever be in any way
responsible? After all, it was only "speech"... . And if person A tells the group of persons B
through Z that they should kill off all the blacks, and B through Z leave the rally and immediately
go out and murder a black man, can A be responsible? And what if it is only M, N, O, and P, who do
so, and it is the next day, or the next week...? And what if we have experience of the same
situation with A1, A2, A3,... (and B1 through Z1, etc.), but B through Z haven't yet
murdered anyone?
Do you see some sharp line that separates these into different kinds?
Gretchen, you are sliding between two different positions. There is a difference between
"hate" and "hate speech". German law attempts to limit "hate speech" -- and in fact does
a pretty good job of doing so. Not a perfect job, of course, but a pretty good one. Of course,
this does not eliminate "hate", but it goes at least some way toward limiting its effects.
The alternative position is that "hate" is best combatted by allowing it into the open without
any limit. This at least seems to be what you have previously been arguing -- though perhaps you
are arguing that "hate speech" is an end in itself and that there is no reason to combat "hate".
My point is that -- at least assuming that we agree that combatting "hate" is the goal -- there
is no obvious difference in the "success" achieved by American vs German law. Further,
while one can recognize that there is at least the potential for an infringement of rights under
German law, in fact the chances of Madonna (or anyone else) being convicted of "insult to
religion" are vanishingly small.
Which returns me to my basic point. German law is not some wild thing running roughshod over
the rights of Madonna (or anyone else), and German lawmakers are no more stupid or less
reasonable than those elsewhere (indeed, at least arguably the contrary is the case).
We don't. That's my point-- Germany is trying to combat hate, or at least hate speech, by outlawing hate speech. America is trying to combat neither, and hence can't be judged for failing in what it isn't trying to do. Is hate undesireable? Maybe, but that by no means indicates that governments have, or should have, any role in eliminating it. I'm not arguing that the U.S. is doing a better job at eliminating hate or hate speech than Germany; rather I am saying that the U.S. is a better country in this respect because it doesn't try to do so.
If a person can be legally penalized for merely offending someone in some specific way, then I would say that those who enact and enforce such legislation are indeed less reasonable, on the balance, than those elsewhere who do not do so.
Greg Byshenk wrote:
Okay, here is what you said before:
I don't think this really affects my argument much. In fact, I think it supports my position that we're talking about a difference in kind, not degree. As you note, German law recognizes an entirely different class of "injuries to the public" that American law does not recognize, and that is an important distinction. The examples you cite of exceptions to free speech here involve the two things I stated before, they either involve direct harm to someone else against their will (as in fraud, which deprives people of their property, thus harming them) or deprives them of their rights (as in perjury, which deprives another of their right to a fair trial). The other exception is libel and slander, but that exception is drawn very narrowly in the US, and rightly so. And it again requires a substantive harm to be proven in court.
What we're talking about in German law is an entirely different class of exceptions to free speech, the notion of an "injury to the public." This is remarkably similar to the common social conservative argument that we should be ban pornography because it "coarsens" the culture. But we do not recognize such a standard here, nor should we.
If a group is harmed, it is only because the individuals in the group are harmed. For example, if someone commits fraud and defrauds 100 people, it would still be a crime if they only defrauded one. What I do not believe is that you can harm either a group or an individual solely through the expression of your opinion. Can you upset them? Of course. Offend them? Absolutely. Make them feel bad about themselves? Yep. But that is an entirely different kind of "harm" than those stated above. It simply is not possible to avoid such harms in a free society, nor is it possible to coherently enforce a prohibition on causing such harm.
Direct was probably a poor choice of words (though it is an important concept in this context). I wasn't talking about causation so much as whether the harm was concrete or abstract. Having one's property stolen through fraud is a concrete harm; having one's religion mocked is abstract. Some may take offense and others may not. Some may take offense from some people but laugh it off from others. The harm is entirely subjective, if it exists at all. At any rate, it is not the sort of concrete harm that governments should attempt to prevent because it would be impossible to do so coherently and consistently without playing favorites and deciding whose views really deserve protection from ridicule and whose do not.
Some speech has consequences, some do not. But the point is that some consequences are legitimate matters for state intervention to prevent and some are not. If the consequence of speech is nothing more than that one group feels bad or is insulted or offended, that simply is not a legitimate basis for an assertion of authority. How could it possibly be? We would literally all be punished for one or another opinion that we hold. To use just one obvious example, how do you handle anti-gay speech? Anti-gay speech may make gay people feel bad. They may be insulted and offended when a preacher says that homosexuality is an abomination to the Lord and will doom them to hell. But at the same time, when those of us who support gay rights respond that this is a barbaric and outdated idea used to justify bigotry, those words are insulting and offensive to those who firmly believe that they are standing up for the word of God. So which insulting and offensive message is allowed and which is not? Both should be allowed, obviously. The government simply has no business punishing opinions, nor any business declaring an orthodoxy of thought from which dissent is punished legally.
Tell me this: what could Madonna possibly do or say in her concert in regard to Christianity - other than "kill all the Christians", which has no bearing because no one, including the German police, thinks she's going to say anything like that - that would justify any governmental interference at all?
I don't think that there is anything more to be said Gretchen. If you consider the goal to
be invalid, as appears to be the case, then of course any infringement of freedom of
speech, no matter how trivial, will be illegitimate in your eyes. I can only note that the
Germans (along with many others) disagree with you.
Of course they will. They just won't be able to provide a coherent argument to support such a position.
But, Ed, US law does recognize "injuries to the public". That is a part of what
criminal, as opposed to civil, law represents. Indeed, such is recognized even in some cases of
"speech", a prime example being the already-noted case of perjury. Perjury is liable to criminal
sanctions, not because some individual is harmed (and indeed may be prosecuted even if no
individual is harmed), but because it is an injury to the justice system and therefore the body
politic. Which, I submit, is precisely the same kind of thing recognized by German law
(though obviously there is a difference of degree, as I have already noted).
When you say
What I do not believe is that you can harm either a group or an individual solely through
the expression of your opinion.
a great deal seems to hang on the word 'solely'. I refer you to the examples I presented
previously. If I tell A that I want B killed, then I have only expressed my opinion. Yet that
may result in very definite (and concrete) harm to B. I don't think that you want to
argue that I should be immune to criminal sanction in such a case, even though I only engaged
in "speech". And so I refer you to my earlier message, and ask again: where do you see the
sharp line that separates the various example into different kinds of cases?
Further, I submit that your interpretation of this matter is simply mistaken. This time you
have quoted what I wrote earlier, but you still don't seem to understand it.
the standards for prosecution under the "offense" laws are quite high: such speech must be
insulting to some culture or relgion, intentionally so, and without intellectual or artistic
purpose or value.
Think about what this actually means. The standard is not that "someone feels insulted",
but that the speech "is insulting". Admittedly, there is a matter of judgment involved
here, but US law recognizes the "reasonable person" standard, so there is nothing particularly
perverse involved. Further, speech must be intentionally insulting. Again, the discovery of
intention is a normal part of US criminal law. Finally, such speech must be without
intellectual or artistic value. And again, there is a matter of judgment here, but I see no way
to connect this with "deciding whose views really deserve protection from ridicule and whose do
not."
Which in turn means that, from your examples, the views of both the Christians and the gays
should be protected, and the views of neither group are punishable. But still further, I can
imagine no "views" or "opinions" that would be punishable under the aegis of "insult to
religion".
And as for Madonna, I don't think that there is anything she could do or say at her concert
to run afoul of German law. And it seems the Germans think the same; you will note that the
article you reference quotes the Dusseldorf prosecutor's office saying that they will not even
bother to send anyone to the concert.
Greg wrote:
And I think you're just plain wrong. Every single time someone lies on the witness stand, it causes someone harm. People have a right to a fair and impartial trial and you cannot have that if people lie in court. This is a direct and tangible harm. It certainly is not comparable to a group or individual being insulted or offended by someone else's opinion. These are entirely different categories of harm, one which may legitimately be regulated by the government and one which may not.
Actually, I would argue precisely that. I do not believe that someone who advocates someone's death should be held responsible for someone else killing them unless something more is in evidence. If they paid a hitman, obviously they would be responsible for it. But even in the case of, for example, the Nuremberg Files (a staunchly anti-abortion webpage that published the names and addresses of abortion doctors with their pictures on "wanted: dead or alive" posters), I would not hold those who advocated it responsible for those who carried it out. Words do not pull triggers; people do. Now, I admit that this is certainly a much closer call, but the fact is that this is still an entirely different category of harm from laws which say you can't insult a religion or an ethnic group. You keep making analogies that simply aren't analogous.
I cannot imagine that you really don't see the danger in allowing the government to draw such lines. The only difference between "someone feels insulted" and "is insulting" is perspective and subjectivity. Someone who believes in gay rights is not going to think that it's insulting to call a Bible believer a bigot. And some of those Bible believers themselves don't consider it an insult, they embrace the word. If you don't believe me, see Fred Phelps and his gang of idiots. Wait...did I just insult Fred Phelps? Why, yes I did. I called him and his followers idiots. I did it intentionally. Now I guess the only thing left to decide is whether that criticism has any "intellectual or artistic merit". And guess what? That will depend entirely on who you ask. These lines simply are not possible to draw, and experience shows that whenever a government attempts to do so it simply becomes a matter of enforcing an orthodoxy of opinion. In Canada, England and Sweden, we've seen ministers brought up on charges for saying anti-gay things, but you've never seen anyone brought up on charges for calling those same ministers names and insulting them in response to their anti-gay sentiments. Why? Because it's not really about outlawing insulting speech, it's about outlawing some types of insulting speech, protecting certain groups from offense while making others fair game. There is absolutely no way to enforce any such law coherently and consistently, precisely because the lines are totally subjective. And that is exactly why government has no business policing matters of opinion.
Then why on earth did they announce that they were keeping an eye on things in the first place? If there is no imaginable thing she could do or say that would be criminal, why the hell are prosecutors saying anything at all about it? Such actions are highly chilling to free speech, just like England's current policy of sending the police to have a chat with anyone who makes even mildly anti-gay statements in public. They don't arrest them, mind you, they just ask them questions and do a vague "investigation". This is simply using the state to intimidate those who engage in speech that they disapprove of, and no government should be doing that sort of thing.
I can only respond by saying that I find you to be "just plain wrong". Perjury can be -- and
sometimes is discovered during the course of a trial. When such occurs, the perjured
testimony will be stricken, and the "victim" is not harmed. Yet such perjury is nonetheless
subject to criminal sanctions. Or consider an actual example: let us suppose that the police
witnesses at OJ Simpson's trial perjured themselves; if so, then there is a very strong case to
be made that they helped Simpson rather than harming him. And yet, all perjury is
subject to sanction.
The point here is that concrete harm cannot be the basis for laws prohibiting perjury.
If such were the case, then perjury law would have to be nullified in those instances where there
was no actual, demonstrable, concrete harm -- and such is not the case, even though such
instances do exist.
Which leaves, as I see it, two possibilities: either a) perjury is subject to sanction because
it is an offense against the body politic; or b) perjury is subject to sanction because it is an
instance of likely potential harm to person or persons [obviously, in many cases perjury
will cause actual demonstrable harm, but that cannot itself be the justification, for the reasons
already explained above]. And you may note that, not only do such justifications fail to meet
your supposed "concrete harm to concrete individuals" test, but they also provide
justification for the same kind of case as is present under German law. That is, either
a) harm to the public; or b) potential harm to persons.
I will additionally point out that there is all manner of US law (not related to speech) that
can be justified only on one of these grounds. As a somewhat trivial example: driving while
impaired is an offense, and it is so wholly independently of any actual concrete harm done to any
actual concrete individual. Of course, as already noted, this is not a case of speech, and, as
driving is not an enumerated right, the bar is set much lower for state action against driving
while impaired. But the principle of justification seems identical.
You seem to continue to avoid addressing the specifics I raise. It seems plain that some
instances of expressing one's opinion that one wishes someone dead are not legitimately subject to
state action. On the other hand, your "unless something more is in evidence" at least suggests
that you agree that some other instances are indeed legitimately subject to state action.
But then the question becomes: which is which? You suggest that if A pays B for the action, then
A has responsibility. What of the case where B is on A's payroll, but is not paid specifically
for the action? What of the case where B is an unpaid follower of A, sufficiently loyal
that A can count on B doing what A wishes? What of the case where A is able to manipulate B to
act in a particular way? What of the case where A speaks to a large group, inciting them to
violence with full knowledge that some (perhaps as yet unknown) subset of them will act?
You seem to wish to continue to assert that there is some clear distinction of kind to
be made here, in what seems (at least to me) to be a continuum of examples -- yet you seem
to be unwilling or unable to demonstrate or explain how that distinction actually is to be made.
I fully realize that I am presenting a number of very different types of examples, but the
measure of the quality of an analogy is not its being identical to the the analogous case, but
of being the same in the relevant parts. Further, I submit that my examples are exactly
to the point, because the issue I am pushing here is the principled justification for state action
-- which principled justification is the necessary basis for a determination that A and B are
indeed different in kind rather than merely in degree. And, if there is no such
principled justification, then the purported distinction fails.
Of course, in the matter under discussion, there is an element of "subjectivity" or
"judgment"; indeed I have already said so. But this is very much not equivalent to being
"totally subjective". Or at least German law on this matter is no more so than what is accepted
under US law. Whether something is insulting is a matter of jugment as to what one might
reasonably consider insulting, but the "reasonable person" standard is recognized under US law.
Whether something is intentionally insulting may well be a matter of jugment, but US law
regularly judges intention. And US law recognizes judgments regarding art, in cases such as
obscenity and copyright violation. In short, there is just no aspect of "subjectivity"
(or judgment) found in German "insult to religion" law that is not similarly accepted under US
law.
More generally, the attempt to condemn law for subjectivity in application is hopelessly
misguided. The application of law is riddled with subjectivity, from top to bottom, from
the trivial -- did she come to a complete stop at that sign? -- to matters of life and death --
with what degree of homicide do we want to charge the suspect? And similarly directly: in a
court, the decision very often hangs on whether there is sufficient doubt about the testimony or
the prosecution's case as to render it not proven. But what is 'sufficient doubt' is a
matter of "subjective" judgment on the part of the judge and/or members of jury. [Indeed, I
would argue that the attempt to remove "subjectivity" -- aka judgment -- from the
application of the law is one of most dangerous trends in US lawmaking. But that is a different
topic.]
Thus, I submit that my original claim -- that German law on "insult to religion" is different
only in degree from US law -- stands. It is based on principles that are equally relied
upon by US law, and further is not "subjective" in any way that is not equally allowed under US
law. Yes, the 1st Amendment to the US Constititution places a very high bar for limitations on
freedom of speech -- but that bar is not insurmountable, and the US does have such
limitations. And of course the bar is lower in Germany. But -- with a few exceptions -- the
difference is in fact almost nonexistent.
As for Madonna, the prosecutors announced that they would look into it (as I understand it)
because someone filed a complaint. If someone filed a complaint with the police that you were
running a major Colombian cocaine smuggling operation out of your bedroom, I expect that someone
from the police department would stop by to look into it -- even if the chances of it actually
being true are vanishingly small. If a complaint is made, it is likely to be investigated, at
least to the cursory degree required to say: "nothing to see here; move along."
Greg wrote:
I think this paragraph alone is more than enough to demonstrate that absolute vacuity of your position. You can't seriously be arguing that if the perjured testimony is stricken, no one was harmed and therefore no one should be punished. This is like arguing that if someone steals your car but the police catch them and return your car to you, no harm was done to you and there's no reason to punish them. But that is precisely what your first argument demands. The second one is even worse. By analogy, this would be like someone arguing that having your car stolen was okay because insurance paid you off and you get a newer car as a result. Seriously, Greg, your arguments are descending into utter absurdity. I suggest you give up and let this one lie before digging the hole any deeper.
You can't seriously be arguing that if the perjured testimony is stricken, no one was
harmed and therefore no one should be punished.
You are entirely correct. Which suggests that you simply aren't reading carefully.
Look at what you have just done: you have misinterpreted what I wrote in a way that makes is
absurd -- and then presented an argument (of sorts) against that absurdity. This is the kind of
thing the folks at the Discovery Institute do. The "hole" is of your digging, and I see no reason
to step into it.
More carefully now... .
As I said, you are correct: I "can't seriously be arguing that if the perjured testimony is
stricken, no one was harmed and therefore no one should be punished." And indeed, I did not
so argue. Rather, in response to your assertion that perjury is subject to criminal sanction
because it causes harm, I pointed out that there are potential and actual instances in
which purjury does not result in concrete harm -- and indeed can even be beneficial
to the person perjured against. Yet, sanctions for perjury do not have a "no harm, no foul" rule,
and perjury remains subject to criminal sanction, even if there is no actual concrete
harm. Therefore, actual concrete harm cannot be the justification for criminal
sanctions for perjury (because the sanction remains even absent the supposed jusitication).
As something of an aside, I will add that nothing I have written has anything at all to do
with what I might happen to think "should be" the case (or what anyone else might think). In a
sense, this argument is purely logical: P & -H contradicts P -> H. That said, I have very
definitely not stated or suggested that in the absense of concrete harm "no one should be
punished." Rather, I suggested that perjury should be punished, based on a justification
other than "concrete harm to concrete individuals". Indeed, what I pointed out was that
your position entails that in such cases "no one should be punished", because your claimed
justification for punishment was "concrete harm to conrete individuals". And it seems an
entirely reasonable position that, if the conditions that justify punishment do not obtain, then
the punishment should not follow.
Just a quick note on your analogy, in part because it only furthers my argument. In some
cases, having one's car stolen may indeed be "okay". In fact, I know of at least one case in
which someone was disappointed when his stolen car was returned, because the insurance
reimbursement would have been worth more to him than was the car. But, similarly to the example
of perjury, auto theft is always subject to criminal sanction, regardless of whether or not there
is in fact any concrete harm to the "victim". Just to be perfectly clear, I am not
suggesting that there should not be criminal sanctions for auto theft; rather, I am pointing out
that the justification for those sanctions must be something other than "concrete harm to concrete
individuals".
This thread is getting so long that I am going to break it in two -- or more. So far I have only read up to your comments of 3:53, Ed, so some of what I discuss may be covered in future posts.
First, we do not disagree, except in minor details, over what 'should be.' We both would insist that any person should have certain rights. What we differ on is whether he HAS those rights absent government action granting him them, and whether a government that does not grant him those rights should be considered 'legitimate.'
Let me take the question of 'legitimacy' first, because it is an argument that was very important at one time. I was 27 years old when Nixon took his trip to China, and before he did, there was considerable discussion as to whether the "Red Chinese" were the legitimate government of China and should be recognized as such. It was very important to establish the principle that legitimacy does not equal approval, that a government that exercises sovereign power over a country, no matter how hateful it is, remains the legitimate government of that country until it is overthrown in some manner or voluntarily surrenders that power. Kim Jong Il and Castro are the legitimate rulers of their countries, as were Mao and Saddam, as was Hitler. Vichy was the legitimate government of wartime France, and not the 'government in exile,' or the Free French under DeGaulle.
(The only exception is a specific civil war situation where two groups both maintain they are sovereign, as with the American Revolution, the American Civil War, and the Bangladesh breakaway from Pakistan. At what point did the colonial governments become legitimate, or the Bangladesh government? Was the Richmond government ever legitimate? Those are worth discussing, but not because of their policies but because of their ability to maintain sovereignity.)
As for the question of rights, I do not see how you can maintain -- without an appeal to theism or Platonism that you would reject as strongly as I do -- that a person HAS any rights not given to him by his government.
What, in 'operational terms' does such a statement mean. We would agree that a person should have the right to free speech, to a choice of religion or lack of same, to a choise of sexual partner of whatever gender, we would agree that a married woman should have a right to own property separate from her husband. We would also agree that a person should -- as far as he is willing to risk punsihment -- act as if he has such rights, should work to convince his government to give him such rights, to work to convince other governments to give their citizens such rights.
But absent such governmental action, what does saying a person 'has such rights' mean? If an Iranian has the 'right to be gay,' does that resurrect him if the government kills him for being gay?
When does such a right begin to exist? Did the right of freedom of religion exist in the thousands of years before the American Constitution, when no one could exercise such a right?
Lets take one specific right. The right to vote. Specifically a woman's right to vote. More specifically, a French woman's right to vote. This was granted by the French government in, I believe, 1947. If it existed before this, when did it come into existence? Did a Frenchwoman HAVE this right during the times after the Revolution when France was a monarchy, an Empire, or under Vichy? If so, what good is it to have a right when it cannot be exercised.
It's late, more tomorrow.