FRONT PAGE CONTRIBUTOR
Free speech: use it or lose it
There have been some high-toned assaults on freedom of speech lately, such as dark muttering from the Church of Global Warming that heresy against its beliefs puts the Earth itself at risk. Author and commentator Mark Steyn is fighting what could prove to be a landmark case against Dr. Michael E. Mann, who created the “hockey stick” temperature graph upon which so much of the global warming religion is based. It turns out that twisting data into a hockey stick shape is not too difficult, provided you ignore all the data that might otherwise smooth it back into more of a straight line. The stubborn refusal of actual global temperatures to assume the desired hockey-stick position has been vexing for the man-made climate change movement over the last couple of decades.
Steyn made some trenchant observations about Mann’s work, which the good doctor took as an actionable assault on his professional integrity, so everything wound up in court, or more accurately the court that decides whether things go to court. Steyn, who posts frequent updates to the case on his website, counter-sued Mann for $10 million, lending his pen to one of the livelier legal documents you’ll ever read. He’s particularly looking forward to dragging Mann’s work product into court during the discovery phase.
There’s more than just global warming mythology at stake here (as if that wasn’t enough, seeing as how Big Climate is a multi-billion-dollar industry, and it doesn’t earn most of that money through voluntary commerce.) Freedom of speech in the United States is on the table as well. The Church of Global Warming is very adept at browbeating critics into silence, using the sort of blind appeals to authority that “science” isn’t supposed to stomach. And that’s not the only debate in public life that tends to be “settled” by intimidating the other side into uncomfortable silence. If there’s one thing a $4 trillion (as of President Obama’s latest budget proposal) government is very good at, it’s manufacturing authorities for its political allies to appeal to.
Not all of the efforts to suppress speech are five-star productions, or even the sort of loud but harmless media mob that tried to force Phil Robertson of “Duck Dynasty” off the air. Good old-fashioned threats of physical violence work great, too. We had a profoundly disturbing example of this when the Ninth Circuit Court of Appeals upheld a California high school’s decision to ban American flag apparel on Cinco de Mayo, on the grounds that such shirts might get the wearer beaten or killed by gangs, which is very disruptive to the educational experience. It was a brutally direct application of the “heckler’s veto,” a technique for raising the cost of disfavored speech until tasteful silence seems like the only sensible alternative.
Writing at his Washington Post blog, lawyer Eugene Volokh – who has become a connoisseur of the heckler’s veto – describes another case, in which a speech on the internal threat of radical Islam was efficiently shut down by an internal threat from radical Islam. Someone strolled up to one of the police officers hired to provide security for the event and casually mentioned that the featured speaker, Kamal Saleem – a Muslim convert to Christianity – had a $25 million bounty on his head. Saleem’s bodyguard confirmed that he’d faced death threats in the past, and that was it.
The event was shut down while in progress, leading to a suit in which the organizers argued that the city violated Saleem’s constitutional freedoms by submitting to the heckler’s veto. However, since the chosen venue was a high-school auditorium, the court decided that it was a “nonpublic forum” where “reasonable” efforts to suppress expression were permissible… provided it wasn’t public officials who wanted to shut the speaker up. Freelance thugs, on the other hand, apparently have some latitude to muzzle speech they disagree with, as long as they make their threats of violence credible. There were other events in progress at the high school when police were made aware of the threats against Saleem, so closing him down was deemed a reasonable precaution to protect the safety of others.
It’s all very “reasonable,” and chilling. As Volokh points out, the high-school principal made a rational decision to safeguard his facility and the many people within it… but that makes the heckler’s veto an equally rational technique:
Consider what incentives this sort of decision creates. If you don’t like a speaker, make death threats against him. Then, if you can somehow let American government officials know about those threats, the officials will kick the speaker out of the places that it rented to him for his speech. (Nor is the principle in the case limited to high school buildings — school wasn’t in session, and the government could raise a similar security objection for any government building where other people are present, or perhaps even a building whether this is the only event taking place.)
Maybe the speaker will still be able to speak in “traditional public forums,” such as parks or sidewalks. But it’ll be a lot harder, because you will have effectively enlisted American government officials in your speech-suppression jihad. Plus what a low-cost tactic this is — you needn’t actually put yourself a risk by attacking the speaker, or by identifying yourself as the threatener. You can just make the threats anonymously online (or make them from a country that sympathizes with the threats), and then count on others to inform government property managers about the threats (again, with no risk of punishment).
And, as I’ve noted before, behavior that gets rewarded gets repeated. If this works for this speaker, why not for other speakers? Don’t like Pam Geller? Threaten to kill her, and then it’ll be harder for her to speak (whether or not you’re planning to make good on the threats).
Volokh mentions some other people violent extremists might like to silence… one of whom is Mark Steyn, noted for his criticism of Islamic extremism as well as climate extremism. All that’s needed to get the heckler’s veto up and running is a solid effort to impress the authorities with how serious you are about settling arguments with bloodshed.
It wasn’t so long ago that we had a general consensus on defending freedom of speech, instinctively understanding that small concessions have a way of snowballing into uglier bouts of enforced silence. Core principles do not survive compromise; once free speech becomes a rationed and redistributed commodity, it stops being an inalienable right. The quality of debate inevitably suffers, because yelling “shut up” is always easier than putting together a convincing argument.
Back in the early post-Benghazi days, when the Obama Administration was frantically pushing a made-up story about spontaneous protests against a YouTube video, the President’s followers obediently conducted a lot of soul-searching about the proper limits of free speech. We were told to think long and hard about protecting speech that some people found offensive. Obviously some sensibilities were more important than others. We find ourselves continuing down that path, right up to the recent “forcing people to bake gay wedding cakes” debate, which amounts to a judgment that some people’s conscience and religious convictions are not worth respecting at all. It’s no coincidence that the folks on the receiving end of that harangue are notably reluctant to resort to violence when offended.
Is the name of the game all about convincing various levels of government and media that you mean business – intimidating the system into respecting your convictions, because that’s the safe, low-cost, reasonable thing to do? That seems like the opposite of civilization to me. But perhaps we’ve allowed our government to become distracted with so many other things that it lacks the energy to fulfill its mission statement of universally protecting inalienable rights. And frankly, if Americans as a culture have grown comfortable with forcing quiet obedience from disfavored individuals and groups, it’s hard to blame the political class for following suit. Vibrant dissent is exhausting for those with big plans for national transformation.