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Friday, May 08, 2015

More on That Times Op-Ed: Surprising, Disappointing, and Banal--But Not an "Appalling" Surrender on Free Speech

Like Howard, I reacted with surprise to the Times editorial yesterday titled "Free Speech vs. Hate Speech." And, as a liberal and civil libertarian, I was prepared by that headline to be "appalled," like Howard. That sense dissipated somewhat when I read the actual text of the editorial (an unusual event in itself for me; the time of institutional editorials by newspapers has long since passed and I generally never bother to read them). That in itself is perhaps an instructive lesson in post-Internet journalism. The clickbait style of headline writing has moved not only into the online space of ostensibly serious newspapers but into their "meat space" too; headline writers today, callow and provocative though they may be, have much more power than they used to or ought to. I come out somewhere between Howard and his civil but forceful commenters, who pushed back on his post. But I still think surprise--and, in my case, disapproval--is warranted. 

Institutional newspaper editorials are generally banal. They are meant to be banal, for obvious reasons. If and when you see the Times write consistently interesting editorials, it is more likely than anything else that it will mean the Times has conceded the impossibility of surviving with a "voice of the [better half of the] nation" model and opted instead to cater to a narrow readership only. Alternatively, an interesting editorial by the Times on such a subject might signal a significant change in the center of center-left thinking, inasmuch as the Times generally aims to write editorials that reflect and flatter the center of its readership (just as a conservative-but-national newspaper would aim to write banal pieces for the center of its readership).

I think this editorial does embody both of these aspects, to a degree. The Times almost certainly has decided to be more aggressively progressive (not liberal--there is a difference, and the Times has become a more illiberal newspaper), in order to fend off Internet competition and adapt to market segmentation. And the editorial does embody a shift in the center of center-left opinion, which today is less civil libertarian on some issues than it used to be. But it is still a national newspaper editorial, and at bottom it is still pretty banal. As the commenters rightly observe, its headline outpaces the editorial itself, which ultimately has more to do with how it feels about the speech than with the legal rights of the speaker. It is unfortunate that feelings are such a major aspect of, and subject in, public discourse today, but such are the times. Nevertheless, the editorial, in characteristically banal fashion, does not attempt to rock the boat; it just tacks left a bit.

That said, I think the editorial manages to be both banal/disappointing and surprising....

Why "surprising?" The Times editorial board has always been reliably civil libertarian. Of course its editorials never expressed admiration for the speech of bigots (and I believe Geller earned that label long ago). But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....

Not an earthshaking difference, surely. But, as this letter responding to the editorial suggests, regular readers of Times editorials (or regular non-readers like me) know the difference, and the Times knows we know. With the help of that headline, the shift was all the more glaring, enough so to make me actually read it--and, again, the Times knew it would be. Hence the surprise. There has been talk in recent months about how much the current political climate around culture-war issues resembles the 90s-era debates about "political correctness." I think it does, broadly speaking. But one potential, and important, difference is that more establishment institutions today may be more receptive to such arguments than they were at the time. They have changed their views, or are speaking to smaller parts of a more segmented and polarized audience, or have been turned into vertically integrated digital media companies by Chris Hughes. In short, I think there was a real basis for surprise.  

Although, like his commenters, I disagree with Howard that this means the Times has "given up on free speech"--perhaps he has the headline bug too--I still think the editorial is disappointing. Partly it's because, as I said above, I'm a conventional, traditional civil libertarian, and this editorial signaled a shift in emphasis on those issues for this paper. But it's also because the editorial itself is--well, banal, in an unsatisfying sort of way.

Let me offer two criticisms. First, the editorial launches itself from the base of what it calls a current "furious and often confused debate about free speech versus hate speech." One would expect an editorial by an institution that fancies itself the voice of reason to ameliorate the confusion rather than contribute to it. Alas, it does not. "Hate speech" is, perhaps foremost, a legal term of art. Not everything counts as "hate speech"; what does count as hate speech, and what should follow from that, is precisely the core of the debate. The Times does not seriously define what it thinks hate speech is. For that matter, although it notes that images ridiculing religion are protected "in most Western democracies," it does not address whether Geller's speech act might qualify as "hate speech" in those countries that restrict such speech, or whether it should. It could, without eating up headline space, have avoided some confusion by labeling this as "hateful speech" or "bigoted speech." It did not, and by using the term "hate speech" it left in place the very confusion to which it rather patronizingly referred.

Second, even in the small space to which it was consigned, the editorial did a poor job of talking about Geller's motivations. The editorial asserts in the second paragraph that her speech act "was not really about free speech. It was an exercise in bigotry and hatred posing as a blow for freedom." In other words, assessing Geller's motives is the whole point of the piece. In concluding that Geller's speech was "motivated by [nothing] other than speech, it ignores some obvious possibilities. Doubtless another goal of the event was fundraising. Yet another was free publicity, which has motivated political actors since long before the "Daisy" ad (aired by its makers exactly once, but rebroadcast for free and discussed endlessly thereafter) and is an especially popular motive these days. Still another was to provoke for the sake of provocation. Another likely motive was political, in several senses: as a partisan move, to influence policy, and in the sense that the whole stunt was a political act, in the same way that burning the flag or immersing a crucifix in urine is.  Another was to provoke a controversy about free speech specifically. And probably another specific motive was a kind of "épater le bourgeois" spirit. 

I don't doubt that Geller's works are contemptible and her policy proposals, such as they are, horrible. But I suspect that she is as opportunistic as she is sincere. To that extent, I'm far from certain that her speech act in this case was actually motivated by hate, although I take cold comfort from that. Doubtless various motives--sheer anti-Semitism, the prospect of financial gain, political opportunism--were afoot in Kristallnacht; it was still Kristallnacht. Still, the possibility of varied motives other than hate is the core of the subject of the editorial. And the complexities that such possible mixed motives introduce--Should we judge such speech differently? If speech is "about" provocation or "about" free speech itself rather than bigotry, but the speaker uses bigotry to achieve his or her aim of provoking, or creating a free speech issue, should we "feel" any differently about that? How much should motive matter, anyway, in judging speech that offends particular groups, as long as the speaker knew that would be the likely result of the speech act? Does it matter, for purposes of moral judgment, if the speech "punches up" or "punches down," and how do we tell the difference?--are all central to the actual discussion the editorial seeks to hold. Not much space would have been needed to at least nod at these points. And if that wasn't possible, the editorial could either have run longer or not been run at all.

In the end, then, I part ways a little from Howard, inasmuch as I don't think the editorial is "appalling" in the terms in which he puts it--as a sign that the paper has "given up" on freedom of speech. The editorial is ultimately about our moral judgment of particular speech acts, not about whether those acts are entitled to legal protection. But I think there are good reasons why regular readers of the Times's editorials on civil libertarian subjects took note of and were surprised by this piece. It may signal a shift in orientation for the paper itself, and indeed a movement in the center of center-left thought on some civil libertarian issues. And, banal as it is, I think the editorial still disappoints and fails even on its own terms.

Posted by Paul Horwitz on May 8, 2015 at 11:26 AM in Paul Horwitz | Permalink


Sorry, but other than poetic effect, I'm really not sure I see a morally, ethically, or legally significant difference between, “I disapprove of what you say, but I will defend to the death your right to say it,” and “I will defend to the death your right to say it, but disapprove of what you say.”

Posted by: Anon | May 10, 2015 12:10:19 PM

It is suggested the NYT editorial provides a simplistic analysis of Pam Gellar's actions here. I think a more substantive discussion of her (and others like her) motivations can be provided. But, especially as compared to past comments, I'm unsure how "disappointing" the remarks are. They cover various points (particularly noting the first sentence) and perhaps I expect a bit less from the NYT than some. With respect, this is the paper with some op-ed writers that leave something to be desired and who gave us Judith Miller. Along with that, they have some banal op-eds.

Posted by: Joe | May 9, 2015 9:27:22 AM

Is "hate speech" really a legal term of art? I'm not sure it has any recognized content as a legal--as opposed to a political or rhetorical--category of speech. It certainly does not have any shared definition, which is why cartoon parodies, Geller's "oppose the savage" ads (which were calls to support Israel), and the SAE chant are all regularly labeled hate speech.

Posted by: Howard Wasserman | May 9, 2015 7:43:07 AM

"Institutional newspaper editorials are generally banal. They are meant to be banal, for obvious reasons. If and when you see the Times write consistently interesting editorials, it is more likely than anything else that it will mean the Times has conceded the impossibility of surviving with a "voice of the [better half of the] nation" model and opted instead to cater to a narrow readership only. "

Or has decided to speak the truth.

Posted by: Barry | May 9, 2015 7:13:20 AM

"the shift from making excuses for a contemptible speaker to making excuses for protecting the speech does "give up" one form of a vigorous First Amendment."

This is the sort of thing I don't get. It's like saying that if someone commits a murder and the only reason we know he did is because of evidence that's inadmissible under the exclusionary rule, we "give up" one form of a vigorous Fourth Amendment if we condemn the criminal, make excuses for excluding the evidence that would have sent him to jail, and say it's unfortunate that the failure to obtain a search warrant will result in a murderer going free. Nothing about accepting a legal rule commits you to rah-rah enthusiasm for each of its applications, or even some tempered form of enthusiasm. And nothing about supporting a legal rule that guarantees rights to engage in some conduct (or to get away with some conduct) entails any kind of attitude about every instance of that conduct. It doesn't even entail a belief that each instance is worth protecting. At most all you're committed to saying, if you accept such a rule, is that you think the entire class of conduct the rule permits is worth protecting as a whole, and that carving out subsets of the conduct that aren't worth protecting isn't workable. That's all I think, at any rate, about speech regarding religions, because I see no way to separate purely "hateful" speech on that subject from legitimate theological contestation of the sort that happened during the Reformation, which was itself very heated and offensive and hateful at times. Having said that, I'm then committed to very vigorous First Amendment protections for people like Geller, the vigor of which I don't see being lessened if opinion leaders condemn her speech and make excuses for its protection, even to the point of suggesting that speech like hers is a very unfortunate but necessary cost of that protection.

Posted by: Asher | May 8, 2015 5:32:35 PM

Not that my responses are terribly valuable, but I wanted to snatch some time now to say something fairly poor now, rather than rest on the false hope of saying something better later.

JG, I agree that what I want would push probably past the length of the average newspaper editorial. That's a fair reason for not being more disappointed, or disappointed at all, although from my perspective it might also be a reason either to draw more negative conclusions about the genre altogether, or to recommend that if a particular issue involves more necessary nuances than space will allow, it's better to write about something else. That might lead to the question whether this issue involves more *necessary* nuances or not, which would be a way to get at your observation that Geller is "just a bigot," not interested in ideas, and *therefore* worthy of condemnation. I think Geller *is* worthy of condemnation, but not, I think, for that reason. (I also don't think Charlie Hebdo represents a marginal case.)

Joe, I think I am most inclined to want to think more about your last point, about trolling versus something deeper. (You're a fair example of that! You regularly comment here and often disagree with the posts, but I always get from your comments a sense of sincere engagement and a willingness to listen in return.) As to the rest of that final paragraph, however, I would say that I think the mixture of motives that I think either were or could be seen to be involved in her actions involves a greater degree of complexity than that, and it's this complexity that to me makes the Times's conclusions seem pat, not useful. This is not in any way a commendation of Geller. The reason the motives are more complex is not because she is an especially thoughtful speaker and actor. It has to do not with *her* complexity, but with the complexity of human expression and its motivations, and the complexity of political statements and actions--or, conversely, the degree to which even fairly basic, and base, expressive actions can nevertheless contain, evoke, or provoke a variety of political ideas and responses; some flag-burners are surely just tools, or trolls, but books have been written about the meaning of flags and flag-burning. As for at least one of your questions, the first letter writer pointed to what seems to me a very salient example in which the Times adopted the civil libertarian "yes, but" approach: the Nazi march in Skokie.

Let me just add one point about Howard's comment. I have wanted to write about this 90s revivalism thing before and ended up refraining. Here, I'll just add a greater note of ambivalence than Howard's on this point. His clarity is probably preferable to my ambivalence. But in mentioning the issue, and in finding the revivalism regrettable, I wouldn't want to suggest that I learned nothing from the earlier debates or that there wasn't a basis for, and a point to, some of those arguments, then and now, even if I ended up disagreeing with them or with their policy recommendations. What I have disliked about the current iteration of those debates is precisely what has made them so prominent today. Back then, unless you wrote for Time or were a Real World cast member, you probably had to make your point in more than 140 characters or the length of a short blog post. The debate has been democratized, or at least amplified, today by giving everyone access to a hashtag. But I continue to insist, stubbornly, that almost anything worth saying needs more than a hashtag. Nevertheless, just because I tend to come out on the traditional liberal side of those issues, that does not mean I find nothing worth listening to on the other side of those debates.

Posted by: Paul Horwitz | May 8, 2015 5:22:18 PM

Let me suggest a reason why Geller's contest not only deserves protection from the law but advances a very important free speech value. If one of the reasons she hates Islam is that it is the one major religion some of whose adherents now kill people for blasphemy, then yes, the contest is provocative -- but the two gunmen's response to it comes close to proving her point. The contest offered Islamic believers a test. Two of them failed it. Geller's motives may have been hateful, but saying that they were does not show that the contest lacked free speech value.

Posted by: Mark Regan | May 8, 2015 4:25:01 PM

Given my own lousy headline, I'm probably just jealous.

Posted by: Paul Horwitz | May 8, 2015 4:12:57 PM

I would highlight three important things from Paul's post.

First, the Times' shift in "yes, but" orientation (n legal terms, as might call this a shift in the burden of persuasion) is significant in terms of how we talk, and think, about free expression. We can debate whether it constitutes "giving up" on the First Amendment. But the shift from making excuses for a contemptible speaker to making excuses for protecting the speech does "give up" one form of a vigorous First Amendment.

Second, Paul is right that we are witnessing a return to 1990s-style political correctness, but that it is, unfortunately, having greater resonance than it previously did.

Third, the op-ed's focus on motivation is problematic because we never before have focused on motivation. The First Amendment recognizes that people speak for many different reasons and we tend to avoid inquiries into why. Much speech that today is celebrated is done for "bad" purposes--to be provocative, to perform an "absurd and immature antic," to sell magazines. And perhaps to ensure that speech is not silenced by the threats of violence by those who do not like the speech--from one perspective, Geller was standing up for broader principle by holding the Draw Muhammad contest.

Fourth, yes, Paul, I am guilty of trying to write catchy titles. Although the title at least reflected how I was reading the piece.

Posted by: Howard Wasserman | May 8, 2015 4:05:30 PM

Your comments both make me want to apologize, as it were. I found both of them interesting and well worth responding to. If I end up being delayed or prevented from doing so by circumstances, I do apologize, because they were thought-provoking and I would very much like to have that discussion. Consider this a grateful acknowledgment and, with any luck, a placeholder for a later response. Thanks again.

Posted by: Paul Horwitz | May 8, 2015 3:49:36 PM

"Hate speech" is, perhaps foremost, a legal term of art.

Is there a clear legal category labeled "hate speech" akin to libel/slander, obscenity, fraud, etc.? It is a colloquial term on some level in my opinion. Also, we are talking about the NYT. Not a law journal.

Times editorial board has always been reliably civil libertarian.

The first sentence of the op-ed stated that her speech was protected. I admit to not have been a loyal reader, but did the NYT not in the past ever say that some group (while upfront saying they have a legal right to say it) seems to be only about dividing the country? Also, the op-ed upfront criticized violence arising from "protected" speech that offends.

Every time it wrote about virulent anti-abortion groups (not just pro-lifers; the Southern Poverty Law Center has labeled her group a "hate group") or the Westboro Baptists, did they "quote Brandeis" at the end? There are people -- on both sides -- who are simply divisive. I also gather you don't agree with the second letter from a civil rights lawyer who agreed she was not a promoter of free speech, but hate.

a poor job of talking about Geller's motivations

It said the effort was not meant to advance "free speech" as a whole. You cite fundraising. Okay. How? By reveling in hate. It goes back to that. If she only cared about money, she would do it another way. Hate also can be sincere. As to how "we" should feel, I think we should feel concerned. Instigating hate is not a good thing. It is not just that she is promoting a disagreeable message. It is the difference between a "troll" and someone who you disagree with in a fashion.

Posted by: Joe | May 8, 2015 3:10:49 PM

I agree that this editorial is not appalling inasmuch as I agree with Howard's commenters that it is not about anyone's legal rights (even then, I would say "wrong" rather than "appalling," in light of much contrary world opinion on the legal status of hateful speech). I also agree with Paul that the editorial is banal. As Paul notes, almost all institutional editorials for major American newspapers are banal. But in part for that reason, I can't quite muster enough energy to be disappointed. The editorial is making a basic point that is hardly crystal clear but is clear enough to non-lawyers. Free speech protects the exchange of ideas. Charlie Hebdo wants to satirize religious fanaticism, so represents a marginal case that is nonetheless in the spirit of "free speech" so understood. Pam Geller is just a bigot. She may also be a bigot who seeks publicity, etc., and so has other legally protected reasons for speaking in the way that she does, but because she is not interested in ideas, she deserves to be condemned. It would have been more accurate and more to the point to say, instead of "this stupid contest was not about free speech" that "free speech is not about this stupid contest." Despite the Times's banality and imprecision, I thought that sentiment was reasonably clear, and certainly as clear as can be expected from an editorial. The analysis Paul says he wants would far exceed anyone's reasonable expectations for this format.

Posted by: JG | May 8, 2015 3:04:35 PM

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