Wednesday, June 04, 2008

Free Speech and Being Harassed

What should the limits of free speech be? That’s been on my mind since I’m planning to write a book against defamation law. The news that Brigette Bardot has been fined in France for expressing anti-Islamic views points out the danger of repressing free speech. What’s next, will Christopher Hitchens be fined for “insulting” religion?

The question of free speech took a personal turn this morning when I got six phone calls from car dealers, loan agencies, and other places who claimed that I had filled out an online form requesting them to contact me. Now, six phone calls is not a big deal, and I actually enjoy receiving junk mail, but suppose I got hundreds of calls, day after day?

Falsely requesting information for someone else is a form of fraud, albeit a very minor form. It wastes everybody’s time. And unlike the question of defamation or hate speech, there is no possibility of restricting ideas. Harassment of this sort doesn’t express an idea, it doesn’t participate in the free exchange of ideas. So therefore, it’s not really speech at all.

Speech that doesn’t express a viewpoint but instead only commits a criminal act (death threats, fraud, yelling fire falsely in a theater, and this kind of harassment) is not protected because it is not part of the free exchange of ideas. Context matters: you can write “give me all your money” in an op-ed about redistributing wealth, but not in a note to a bank teller.

There are always dangers in permitting exceptions to free speech; the most notable example is the college president who imagined that a student’s criticism of a parking lot (which suggested naming it after the president as a memorial) constituted a death threat. This student at Valdosta State University was expelled in an appalling attack on free speech that FIRE has extensively documented and fought against.

But it’s possible to imagine a system of law based on reason, where we don’t change our principles merely because the idiots of the world can’t rationally enforce them. Clearly, death threats, even though they are a form of speech, pose a serious danger to free speech. But we can rationally divide the true, limited reasons to restrain speech from the dishonest attempts to silence criticism.

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