Fragile Free Speech

Under the [Irish] law, which went into effect Friday, a person can be found guilty of blasphemy if “he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion.”  The penalty is a fine of up to 25,000 euros, or more than $35,000. … Nugent, who estimates that there are a quarter-million atheists in Ireland, said the new law is “silly” and “literally medieval.”

More here.  Such free speech limits have a straightforward efficiency rationale – the gains of the few who enjoy saying outrageous things are plausibly outweighed by the harm to the many who are outraged.  The best consequential argument against these limits is the long run innovation gains from free speech; outrageous speakers sometimes change our minds, to our great benefit.  But this innovation rationale for reduced regulation applies pretty well to most regulation; regulation usually hinders innovation.  So why don’t we apply the same argument as eagerly there?

Our cultural heritage is that “modern” nations had freer speech while “medieval” ones did not, so of course nations now prefer freer speech to gain status.  We make up rationales as required to get the high status policies we want.  If in the future a low-free-speech nation becomes higher status, nations will instead copy that policy, and make up reasons as needed for that.

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  • Grant

    The best way to argue against these limits on consequential grounds is to focus on the long run innovation consequences of free speech; outrageous speakers sometimes change our minds, to our great benefit.

    The outraged can also change how they feel about such speech, and simply stop becoming outraged. The potential gains from people becoming more understanding of others’ opinions and lifestyles seems massive in comparison to negative harm of outrage.

    Of course in the age of the Internet trying to actually censor speech is a waste of resources.

    But this innovation rationale for reduced regulation applies pretty well to most regulation; regulation usually hinders innovation. So why don’t we apply the same argument as eagerly there?

    Well some regulation (e.g., pollution controls) seeks to limit physical harms, which people can’t learn not to hate.

    • http://infiniteinjury.org TruePath

      The outraged can also change how they feel about such speech, and simply stop becoming outraged. The potential gains from people becoming more understanding of others’ opinions and lifestyles seems massive in comparison to negative harm of outrage.

      Of course the people who are outraged aren’t (they inevitably claim) seeking to restrict speech because it makes them outraged but because they think it’s actually bad. Bringing up the gains from tolerance is fruitless here since we only think tolerance of things that aren’t (too?) bad is valuable. We certainly wouldn’t want to increase the tolerance for plots to do murder, contracts to commit murder, or other grave harm even though they are speech.

      Moreover, I’d even quibble about the claim that outrage itself is never a compelling justification for restriction of free speech. Certainily I agree for those restrictions substantial enough that we are apt to actually call them out as censorship but there are tons of smaller scale instances of ‘censorship’ that are similar in kind and yet often justified to protect people from outrage.

      I think a perfect example here is the outrage created by the Phelpsian protests of soldier’s funerals with signs about god hatting fags and soldiers deserving to die. The outrage these familiesand those who empathize with them feel causes a substantial amount of suffering. True, I strongly support the right of these groups general right to speak and think it’s foolish to alter long standing legal precedent for such a group.

      However, there is a much more subtle kind of restriction on free speech used against these groups. The local police and empathetic judges shave the rights and privleges of such an emminently offensive group just a little bit narrower. On account of the content of their speech the towns are given latitude that would raise an immediate firestorm if deployed against speech with republican/democratic content. If a town dusted off an old law and only applied it to conservative leaning organizations or enforced laws requiring parade permits only against liberal organizations people would rightly scream.

      However, I’d argue that this is exactly the appropriate balance between the outrage induced harm of the Phelpsians and the importance of free speech. Especially when it is of such obvious lack of value and implemented in ways that lack lasting precedential impact (individuals bending the rules).

  • Robert Wiblin

    Maybe looking back at history we find that restrictions on freedom of speech, particularly protecting religion, foreshadowed bad consequences more than other such regulations.

    I think you have to do more work than you are to prove that we only like Western policies because the West is historically high status.

    Remember there is another option which is even more efficient, helps everyone get what they want and preserves innovation: people be allowed to blaspheme and say offensive things, but only in situations where others voluntarily consent to hearing them.

    • Grant

      The West is historically rich, while many other nations are extremely poor. While people value status and wealth can bring status, they tend to value things like food, clothing, shelter and medical care more. It isn’t at all clear to me that other nations’ emulation of Western policies has more to do with status than wealth.

      Some Eastern countries (Hong Kong, Singapore) emulated our wealth-creating policies while not emulating other high-status policies (such as multi-party democracy or a fair justice system).

      • Jayson Virissimo

        To be fair, Singapore is a city state. When you compare Singapore to other cities (like San Francisco or Chicago) you see that it isn’t abnormal to have a political parties in power for decades upon decades (even in the most democratic countries).

    • http://infiniteinjury.org TruePath

      Remember there is another option which is even more efficient, helps everyone get what they want and preserves innovation: people be allowed to blaspheme and say offensive things, but only in situations where others voluntarily consent to hearing them.

      That doesn’t make even make sense much less produce a workable policy. As long as we live in a shared visual/auditory space it’s simply impossible for people to contact those who might be interested in their idea/issue/etc without that message impinging on some people who definitely don’t want to receive it. Indeed until we develop decent algorithms for understanding language we couldn’t even do this in an online world. Without an AI to prescreen all the media you see to block undesired content you’ll have to look at some unwanted speech if only to filter it out.

      Maybe looking back at history we find that restrictions on freedom of speech, particularly protecting religion, foreshadowed bad consequences more than other such regulations.

      What makes you think this is true?

      I mean if it’s based on sampling from modern western history books or cultural lore it’s almost totally useless. Our culture encourages us to take it for granted that speech restrictions presage other more direct forms of oppression and decline thus in describing a fall or stumble of a civilization/nation new restrictions on speech will naturally seem salient where the same restriction in the context of a citilization/nation that has a long prosperous future it will seem an irrelevant curiosity about the religious practices (which tend to always include things about god’s name). There are plenty of civilizations who even at their zenieth were executing people for saying the wrong things.

      Sure, I’ll agree that there is a strong correlation between extreme speech restrictions and the collapse of a government/society but only for the same reason that there is a correlation between extreme curfews, high taxes and other measures likely to be adopted as desperate attempts to retain power.

  • gwern

    Another factor is the perception of modern countries as… not quite ‘Christian’ but ‘non-Muslim’, shall we say.

    I suspect that in Europe, due to incidents like the Muhammed cartoons, a great many people see such anti-blasphemy laws as benefiting and shielding principally Islam rather than Christianity (whatever the constitution may originally’ve said).

  • Millian

    The answer to Robin’s question is that liberal societies respect unavoidable objective physical harms more than avoidable subjective non-physical harms all the time because of how easily one can respond to the latter compared to the former, but that would require a basic investigation of philosophy rather than wielding the status-hammer, wouldn’t it?

    Robin, you seem to ascribe a lot of policies to the “status” of nations. Can you provide a definition for those of us who missed it first time out? Why is Sweden not high-status? It’s very wealthy. Why do more Europeans refrain from copying Sweden or the United States?

  • MZ

    Another great reason to turn your computer into a Tor relay.

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  • gaffa

    A factor which might arguably more important in the utility calculation than the gains to those who enjoy saying outrageous things is the feelings arising from the sheer knowledge of being able or not able to say what you want (even if nothing outrageous is ever said).

  • kevin denny

    As someone who lives in Ireland I think that this law is indeed stupid and backward. The good news seems to be that, given the wording, prosecutions are highly unlikely.
    Remember, Ireland is the country that gave the world “Father Ted”.

  • jonathan

    Higher status means what? If the hidden assumption is that higher status can be switched while maintaining economic growth, that’s debatable because you haven’t presented a single case in which that has happened. We do have a number of cases from the 20th Century and one of them did remain quite innovative, Nazi Germany; they developed jets, rockets, elaborate methods for murdering and disposing of human beings, excellent (though somewhat cantankerous) tanks, very good artillery, better submarines. That isn’t much a case on which to base an assumption and it isn’t easy to summarize the Nazi record of economic growth outside of the military buildup in the 1930’s. The other potential examples are all quite clearly economic failures, with the possible exception of current China where speech is constrained.

    The example of China raises a different issue; it’s the opposite of the blasphemy law because China suppresses religious speech – along with much of religion generally. So perhaps one can argue that a non-religious state in which speech is constrained can replace free speech states in status. That may make your point but it also argues against it given the example you chose of blasphemy laws.

    Note that Atheist Ireland published a list of 25 potentially blasphemous things, beginning with statements by Jesus and Muhammed denigrating other religions.

  • James Andrix

    Something that I think supports Robin’s theory: We mainly see free speech as an important point at the level of nations and laws. We tend to accept the existence of speech restrictions in workplaces, residences, or in blog comment threads.

    So in practice we tolerate huge limits on what we can say, but pay lip service to our speech being free.

    • http://pdf23ds.net pdf23ds

      This is so wrong. People don’t tolerate government restrictions on free speech because they want to find their own subject matter niche, their own social circle, of limited speech, and with government restrictions many people’s entire niche will become illegal. Atheists want to be free to have a blog or a newsletter in a Christian country.

  • http://www.guidothys.nl Guido Thys

    Aren’t there are always two parties in a conflict?
    How many instances do we know of laws prohibiting people to say/write/draw something which might offend someone else? A lot.
    How many instances do we know of laws prohibiting people to interpret something as offensive which wasn’t intended to be offensive? None.
    Legislation and morals always favour the receiver, never the sender.

    Doesn’t someone’s right not to be offended entail the rest of the world’s obligation to adapt to the least open-minded and flexible?

    This is the world we have created for ourselves: my right to say/write/draw things which are not intended to be offensive but e.g. satyrical will invariably be curtailed by someone else’s right to feel offended by whatever she/he sees fit to be offended by.

    Conclusion: there is/never has been/never will be any freedom of speech. There is only freedom of being offended.

  • http://hanson.gmu.edu Robin Hanson

    Grant and Millian, we could “solve” a great many social problems if people would just change their preferences, but that is almost never considered an acceptable solution.

    Rob, I doubt free speech restrictions have much foreshadowed bad things.

    gwern, yes there are also cultural identity issues.

    gaffa, yes some like knowing they can say what they want, but others like knowing others can’t say certain things.

    Grant and jonathan, wealth is a huge marker of status.

    James, good point.

    • Grant

      Grant and Millian, we could “solve” a great many social problems if people would just change their preferences, but that is almost never considered an acceptable solution.

      It is the case of many “-isms”. We tell racists, sexists, homophobes, etc. to stop hating their respective groups. We don’t tell them to oppress other races and sexes.

      We also often tell people offended by speech alone that they shouldn’t be, though this pressure is much less than the pressure levied against racists.

      I think we do this because we know the world would be better with less racists and sexists, just as it would be better with fewer people who get offended by speech alone. If we punish inefficient, mutable preferences we should expect them to decrease. If we reward them we should expect them to increase.

  • Psychohistorian

    I find it fascinating that, as an economist, you routinely miss one of the most obvious justifications for something not being regulated/legal/illegal: “the costs outweight the benefits.” Actually enforcing laws restricting speech in a completely unbiased and efficient manner is not something we expect a government to do; we expect it to support one side over others, as this has historically been typical. Moreover, there are substantial costs associated with prosecution and false positives that may make such laws not worthwhile.

    Perhaps more significantly, you ignore that most people are value-based and not utilitarians. Even many utilitarians do not acknowledge certain types of utility; for example, if you are a sadist who expressly derives joy from torturing non-consenting humans, the loss of utility you suffer from following the law is not worthy of recognition, because it’s not something we would be better off with more people indulging in. Similarly, I think there’s a view common in cultures which allow free speech, which is that if you’re offended, it’s your problem, not mine – i.e. the coefficient on your disutility experienced from offensive speech = 0.

    Incidentally, I’d love to see a list of X’s such that, “People do X and not Y, therefore, X is high-status and Y is low-status,” is false on either side of the therefore, especially the right side.

  • Philipp Heller

    I would argue that laws restricting freedom of speech are bad for both those whose freedom is restricted and those supposedly get protection from it.

    Suppose there is complete free speech. Then if someone makes a slanderous comment against some religion, members of that religion get an additional way to signal their indignation at such remarks, hence enhancing their position within their religious group. This additional opportunity to signal your support of the religion in public has positive value, so it improves welfare for those defending the religion and other members of the religion who can better identify the pious among their flock.

    In general I would suggest that people do not inherently care about being offended. What they care about is being offended in public, which signals to other people their low status, which then reduces their welfare. But to forestall any such offensive comments people will have to build a reputation for not accepting offensive comments no matter the circumstances even if they don’t care about them in some circumstances.

  • Larry D’Anna

    Abstractions are great, and efficiency is a great abstraction, but you still have to actually use your brain when you apply an abstraction to a specific situation.

    Nobody ever argued for free speech on the grounds that it is efficient, that the gains to outrageous speakers were greater than the loss to the outraged. We like free speech because we recognize that the outrageous speakers preference to be free to speak is fundamentally more worthy than someone else’s preference that he not be free. The core of the argument for free speech is that not all preferences are equal. To criticize free speech on efficiency grounds, which assumes from the outset that all preferences are equal is to beg the question.

  • Rich Rostrom

    The obvious analogy to this law is the traditional “fighting words” doctrine. People should not be required to tolerate flagrant, gratuitous insults or impropriety.

    The real danger with this law is in this language: “causing outrage among a substantial number of the adherents of that religion.”

    What that means is that “the adherents of a religion” get to decide when and how this law applies. The bigger the chip on their shoulder, the greater the deference they are to receive.

  • http://rationalmechanisms.com DWCRMCM

    This act, if you read it, quickly shows that the primary concern will be to protect the people of all faiths from radical elements of any specific faith whether or not these radicals are conservative or progressive.

    Atheists will be quite free to pursue lives outside of the faith. They will get into trouble if and only if they slander or libel the faith. The proper term of course is Blasphemy. Libel and slander both require publication.

    This will of course requires atheists and agnostics to overcome their bias against the Faith.

  • http://www.guidothys.nl Guido Thys

    DWCRMCM, why do “people of a faith” choose to be offended? Instead of deciding that nothing anybody says/writes/draws can ever offend them?
    Personally I cannot ald will not be bothered by anything anyone says about me, except when I can learn from it.
    As a consequence, I have no need to be protected from anyone by law or otherwise.

    And about Blasphemy: you cannot be blasphemous towards faith, only towards the Lord or anything else sacred. And that is something between the blasphemous person and the Lord. Other people shouldn’t meddle.
    It’s all about respect. And that is always mutual.

    • http://rationalmechanisms.com DWCRMCM

      Hi, I stand corrected. I chose the wrong word.

      “Personally I cannot [and] will not be bothered by anything anyone says about me, except when I can learn from it.”

      The model asserts that you are cultivating indifference, and that this is “Rational Behavior”.

      “except when I can learn from it.”

      The model asserts that if you are genuinely indifferent, then you won’t know when to make such a decision.

      Notwithstanding the above.

      The separation of church and state protects the church from the state.
      The state cannot use the church for political ends.

      Reading the act itself might present a different context for your consideration.

  • http://lorenzo-thinkingoutaloud.blogspot.com/ Lorenzo

    The acceptance of restrictions on speech in sub-polity contexts are affected by the fact that those contexts are chosen: one can generally exit them relatively easily.

    If the polity imposes speech restrictions, exiting from that is a much bigger deal. They are also backed up by the coercive power of the state.

    Experience strongly suggests that restrictions on free speech will not be evenly applied. Various jurisdictions with “hate speech” laws (such as my own state of Victoria) notoriously apply them unevenly. Both in what is defined as “hate speech” in the first place and which instances of “hate speech” are prosecuted. (There is not a lot of prosecution of what is said in mosques, for example.)

    Some harms are simply not the legitimate concern of the state. As has been pointed out, “outrage” is extremely subjective. Legislating to protect people from being “outraged” also generates very bad incentives, as one gets more power to regulate the speech of others by expanding the ambit and intensity of one’s “outrage”.

    More generally, this notion of “status” seems to both beg the question of what led to such “status” in the first place and to not be operating on any clear basis. The US, for example, has a very mixed “status” level depending on what the issue is and who we are consulting. Nor does it make a lot of historical sense. In the period when Spain was the world superpower, not doing what the Spanish did had rather more cred in, for example, Protestant Europe.

    Finally, any notion that modern Westerners do not have historically very wide ambit of freedom of speech is pretty silly. You do not get burned alive for printing or saying the wrong thing, for example. Publishers are not licensed by priests; plays do not have to be approved by the Lord Chamberlain, and so on.

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  • Sarah

    This is not going to be a deep or intelligent comment; I just think you’re wrong here.

    The reason I care about free speech (and I doubt I am alone) is that I am a weirdo. I am quite likely to say what I think personally without double-checking with the authorities. I would not last five minutes in a totalitarian regime. So I care about weirdos’ rights, about heretics’ rights, because I am one.

    You give one social rationale for free speech — that we all benefit now and then from those who state outrageous ideas.

    There is another rationale. This says that we are individually better off if we ourselves are free to talk without much hindrance. I, myself, benefit from saying what I like, associating with whom I like, praying as I like. If I am strictly limited in the ways I may think and communicate what I think, I am harmed quite grievously — I am not allowed to exercise an important faculty of a reasoning being. Talking and thinking are universal human faculties; another kind of regulation could, say, stop me from running a railroad as I like, but it is more of a sacrifice to give up talking and thinking than to give up a business practice.

    The standard for laws that seriously harm citizens should be quite high.