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Some Thoughts On Free Speech

18

Freedom of Speech

Freedom of Speech

Amnesty Sweden is currently running an article marathon on Free Speech. I find that a little odd, for reasons I will return to. In either case, I have been passed the torch by Dr. Spinn, and give my thoughts here.

Freedom of speech is sometimes described as the freedom to utter any opinion you like. I disagree strongly. That component is necessary, but it is far from sufficient to constitute freedom of speech.

Another component is necessary beyond the mere power of voice, one which is the real trick getting in place in any society.

Freedom of speech is not just the freedom to speak one’s mind. It is the freedom to speak one’s mind without fear of retaliation, now or at any time in the future.

This is a huge difference between these two, and in the latter truer sense, we don’t have perfect freedom of speech in any country, yet. It is still a goal we need to strive for. It is just not authorities that may crack down on uncomfortable or irreverent opinions; the public may be just as harsh a judge when somebody challenges a stigmatized — falsely held, but still stigmatized — “truth”.

Amnesty’s Article Writing Marathon
This is an article in Amnesty’s Article Writing Marathon on Free Speech. I was passed the torch by Dr. Spinn, here, and I pass it further on to Josh (the guy with the sledgehammer), who lives here.

In such circumstances, it is the role of government to suppress those people and activities who would make people feel threatened by stating opinions that are out of line with commonly held beliefs. And doing so is very necessary, indeed paramount: everything we believe in modern, secular countries today has been the subject of not just ridicule, but persecution, at some time in history.

I am sure all of us can imagine a scientific finding, even if it was arrived at through the most rigorous study and scrutiny, that the author would not dare publish today due to the social consequences of publishing the data. This is a problem.

Historically, the antidote for this mechanism has been anonymity. People who have not wanted to become targets for uttering unpopular opinions, even if true or reasonable, have chosen to not announce who they are, but let the ideas stand for themselves. In general, this is a very good idea when battling stigmatized subjects. New technologies give those who can use them a better means of being anonymous, while those without that expertise have a harder time using their voice to challenge the status quo.

It doesn’t take much to sharply erode freedom of speech. There is a term for this; chilling effects. In most cases, a mere suspicion that an uttered opinion may come back to cause problems at some unknown point in the future is enough to think twice whether you should really state your opinion.

The copyright industry has been very aggressive in this particular manner, and has created textbook examples of suppression of freedom of speech. It is perfectly legal today to send out a threatening letter that you’ll take somebody to court if they don’t stop stating a particular (perfectly legal) opinion or artistic expression — and yet, the thought of just receiving such a letter is enough for many artistic expressions and thoughts to never be heard at all. It is for this reason — as suppressing free speech today carries no risk at all and threats with chilling effects can therefore be thrown around liberally — that I firmly believe that copyright and patent monopoly aggression must be criminalized. If it was obvious that somebody had no standing in their chilling threat, then the entire framework must turn against them, with the same range of penalties.

Simply put, stomping on free speech and art — for profit — must carry a price tag when doing it just on speculation. Today, it doesn’t, beyond the postage costs of the threats.

But it can be worse still, when government itself takes the right to erode free speech through creating FUD — Fear, Uncertainty, and Doubt — through chilling effects. It’s not necessarily that it punishes people for saying bad things — it is enough that it publicly reserves the right to do so in the future.

Consider the following literary passage, where the name of a specific governmental agency has been replaced by the more neutral “Government”, and some verbs replaced with modern counterparts:

There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Government plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — did live, from habit that became instinct — in the assumption that every communication you made was wiretapped, and, except when encrypted, every action scrutinized.

The origins of this passage may or may not be familiar. So why am I bringing this up? Because of the FRA law.

Not many people outside of Sweden are aware of this fact, but the above scenario is the law of the land in Sweden. In 2008, a law was passed that gave the government the right and the task to wiretap everybody in bulk without warrant or notice. They will be monitoring all communications — phone as well as internet — from as much as two million households at a particular point in time. The default changed from “you have a right to privacy” to “the government may listen at any time, and is likely to be doing so”.

The passage above is from the book 1984, which is why I am speaking of chilling effects to free speech and how absolutely vital it is that one may speak without fear of persecution now or in the future.

Protests against this law were widespread both in terms of people and in terms of their political origin. The Pirate Party coordinated a loose movement of basically all the youth wings at the time, but ultimately lost in what was a terrible political theater. The politicians selling out, after having promised to oppose, were ultimately very richly awarded.

The law is being challenged in the European Court of Human Rights and I can’t see it survive if challenged, being basically an abomination against the very concept of human rights. But that takes years and years — if and only if the ECHR decides to take the case.

So why am I bringing this up now?

Because Amnesty’s support for this law was instrumental in its passing. I used to be a recurring monthly donor to Amnesty, but canceled my donations sharp at that point.

These are the words of Amnesty’s solicited input to the commission-drafted law mentioned above, words of Amnesty’s which were quoted many times by the wiretapping hawks in the debate:

Amnesty International (Amnesty) considers the commission’s report to be addressing the potential problems in a very satisfying manner considering violations of the freedoms and rights protections in an adapted defense intelligence [the name of the commission, Ed note]. The issue of privacy is central to this commission, but Amnesty considers the report to address every difficult matter in the balance of interests at hand.

After one year of public protests and after the law’s ultimate passage, in the fall of 2008, Amnesty issued one statement that the FRA law has severe and unmendable problems regarding human rights and free speech, but has never done any kind of visible budget expenditure on the matter. That’s when the Amnesty brand stopped being associated with human rights in Sweden for me, and just became associated with “The Man”, no matter what nationality.

This is why I’m flabbergasted that Amnesty of all organizations does an article marathon on Free Speech. But hey, at least it gives us the chance to send the message loud and clear: we’re still waiting for your campaigns for human rights right here at home.

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About The Author: Rick Falkvinge

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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18

  1. 1

    GREAT post.
    I get so angry when I talk to people about politics–particularly of the pirate variety–and the discourse falters at “Well, this is the law so…” As if we are not even allowed to TALK about it! Even in Western countries, people are afraid to speak out, I think, and that not only stifles discourse, but also stifles progress.

    In China, many people are convinced that they DO have free speech and what is stifled is only the “dangerous,” or “rumor-mongering” speech (which is “really” all the government is monitoring for of course!) The terrible thing is that this mind set looks very familiar sometimes.

    I am disappointed to hear about Amnesty’s support of the FRA law. I didn’t know about that.

  2. 2
    Scary Devil Monastery

    And that’s the word right there. FRA is an abomination. The data retention directive is just the logical second step.

    In the DDR people feared their neighbors and the state. In sweden today, more and more people are starting to fear the police. The reaction on a sober day is sheer denial “No, they aren’t doing that”, “Not in Sweden”, or even “Swedish democracy is strong enough to survive a little surveillance, we aren’t Russia”.

    Backed, of course, with the eternal old straw man arguments of “So, you are for the right of criminals to remain anonymous” and “Think of the children”. Neither of which of course are relevant for a debate on whether supervising everyone, all the time, is worthy of a “civilized” nation.

    That’s just it – the current generation grew up with the trend of “not making waves” and polishing their “northern japanese” face. Smile blandly, make a fist in your pocket, and just swallow whatever gnaws you. It takes a lot of alkohol or personal experiences for most people to wake up and say “Hey, this just isn’t right”.

    And a lot of this is due to the chilling effect. Objecting just isn’t “normal”. Aside from the police what a swede fears the most of all are the opinions of every other swede.

    I personally think this is also why there are 20% filesharers among Sweden’s online community even though very few speak out for filesharing. It’s a good way to be singled out as “different”. And Swedes are, by and large, some of the most intolerant people on this planet.

  3. 3
    buglord

    I don’t remember who’s quote it is or where I saw/heard it, but I really agree with it:
    “those who would give up a little bit of freedom for a little bit of security will deserve neither and lose both”

  4. 4
    SplendidSpoon

    As an American, I expect something similar will be coming to my country soon. I always considered Sweden to be one of the countries I would consider moving to…this has opened my eyes. Thank you for this article, it’s important for people to continue to sound the alarm when freedom of speech is eroding around the world.

  5. 5
    Carl

    Could you please define “retaliation” more precisely? While I think I understand what you mean – legal repercussions or bodily harm, etc. – the concept of complete, total freedom of speech both socially and legally seems entirely impossible in my mind. People are entitled to form an opinion based on what I or other people might say, and then act upon that opinion.

    • 5.1
      Scary Devil Monastery

      Look at the average school yard. You will find children being ostracized for no other reason than their heritage, implied sexuality, body structure or because they wear glasses.

      In the adult world the judgement of society can be no less harsh. Being a liberal will, in some circles, put you in the same implied social pool as the confused madmen bent on conquering the world in (fill-in-deity-name) with a gun in one hand and a holy book in the other, simply because you do not believe in general mass surveillance as a viable weapon in the war on terror (or drugs, or “think of the children”, or “for the common good”, etc.).

      This being the case, and because your personal opinions, voiced in the wrong forum, will cause retaliation and ostracism directed at you, means that in any society people must be allowed to voice said opinion anonymously.
      I’m therefore indeed entitled to form an opinion based on the nickname “Carl” based on what you wrote. I’m NOT entitled to demand that in order to be able to post that comment you MUST present your real full name and adress.

      This is the same whether you are a Chinese dissident voicing criticism against the government, if you are a pro-choice activist voicing an argument for legalized abortion in Ireland or Portugal…or if you are a homosexual trying to hold a blog in Lithuania.

      The repercussions do not need to be legal (though you can compare with how many legal systems in western europe today treat self-confessed muslims). The point is that there will always be enough people who find what you say offensive enough to go after you or attempt to marginalize you in some way.

      A manga translator in Sweden (Simon Lundström) recently spoke at a liberal gathering regarding his recent conviction of possession of “child pornography” (meaning, in that case, japanese cartoon caricatures of what might or might not have been children) about what “freedom of speech” really meant.

      His argument was clarifying: Freedom of speech means you are entitled to say or express anything you want. So is everyone else.

      You can’t use freedom of speech as an excuse to limit someone else’s freedom of speech. That limitation is built right in. Thus when you slander, libel, or by way of speech try to take away someone else’s right to be heard or taken seriously you violate yourself someone else’s right of freedom of speech.

      Which is why he says genuine documentation of a child being abused is a violation of that child’s freedoms. Why “Hate speech” is a direct assault on someone else’s freedom of speech. Why slandering someone is an attempt to marginalize, and thus another direct assault on another person’s freedoms. These are all examples of freedom of speech being sacrosanct – NOT limitations of freedom of speech in itself.

      So yes, you can have total and complete freedom of speech. The point is that so must everyone else and their rights are equal to yours. It’s the same reasoning which says that Democracy has the built-in limitation that you can not (or should not be able to) democratically vote away democracy.

      • 5.1.1
        Carl

        You are disagreeing slightly with yourself. If one is able to express _anything_ at all, shouldn’t this logically include subjects and opinions that are, in some way, damaging to other people?
        I agree with the general consent here, but we seem to differ on the interpetation of the technicalities of the term ‘total freedom of speech’.

        Speaking of the ‘manga case’, that really seems like more of an issue with pornography interpretation rather than freedom of speech. But that is a separate issue.

        • Scary Devil Monastery

          You do get ambiguity.

          The point is that some expressions are a direct assault on someone else’s right to be heard.

          Hate speech or libel, for instance, is actually utilizing free speech as a method for removing or attacking another person’s civil rights. Calling someone else an idiot is in this context ok as far as free speech is concerned. Vociferously arguing that you should not be allowed the right to communicate at all is where you try to use free speech to attack someone else’s free speech.

          There’s a difference between hurting someone’s feelings and between trying to usurp his/her basic civil rights. Generally speaking you should not be able to use one civil right as a direct medium to run roughshod over another person’s rights. In such cases of course you have to be very specific and limited in your criteria of what constitutes an “attack”. We aren’t, as a society, doing that, springing more often than not, for easy solutions which generate a great deal of conflict between the legislation and the commonly agreed basic human rights.

          Where actual child pornography is concerned the case becomes harder. On one hand you should certainly be able to communicate anything you like, as long as everyone else is allowed to choose whether to partake of that communication. When that communication concerns pure fiction I don’t see any barriers which logically ought to exist at all.

          But if you do find yourself staring at what you may have good reason to believe is sexual abuse or exploitation of a minor – then there are other laws which may apply. Most notably the one about your duty to inform the police that you have obtained evidence of assault. And you could very well make a case (and from my personal opinion, should) that the possession of imagery resulting from rape and violation is in itself an attack on the victim. What you cannot do is broaden that definition casually as the violation of the principle is the result of stringent factors which have to exist in order to not potentially turn an ordinary “erotic” image (e.g. a nude16-year old) into a legal definition most people think of as “depiction of rape”.

          Rick’s original article concerning amnesty is that they’ve actually encouraged a law which bluntly states the supervision of every citizen is not only OK but mandatory. Before it was a grey area which, if FRA were caught spying on the citizenry, would have had consequences. This points out a certain amount of hypocrisy and/or ignorance in their judgements.

      • 5.1.2

        “Free speech” is inherently a balance. It is not a black and white thing; it is not right to say that free speech is simply the “freedom to speak one’s mind without fear of retaliation, now or at any time in the future” because such speech may prevent other people from speaking their mind. One person’s free speech may impinge upon another’s – for instance, one person says “homosexuality is wrong”, and another responds to them with hate speech. We don’t want people to have the freedom to say *anything*. So we have to choose what speech we’ll allow, and what we won’t, on some other basis.

        The term “free speech” is a misnomer which can be claimed by any side to justify itself. The reality is, there is only “acceptable speech”, and as a society we argue about what that is.

  6. 6
    -

    “In such circumstances, it is the role of government to suppress those people and activities who would make people feel threatened by stating opinions that are out of line with commonly held beliefs.”
    No.
    People have right to express their anger.

    • 6.1

      People have the right to express anger. They do not have the right to threaten others with that anger. I believe the point is this:

      ” It is perfectly legal today to send out a threatening letter that you’ll take somebody to court if they don’t stop stating a particular (perfectly legal) opinion or artistic expression — and yet, the thought of just receiving such a letter is enough for many artistic expressions and thoughts to never be heard at all. ”

      Which _does_ make it the government’s responsibility to curtail such threats on free speech–not the sentiment, the threat.

      • 6.1.1
        -

        It’s not so clear.
        Directly, a responsibility of governent is not to protect people from threats but from their realization. If it was perfect in doing it, there would be no reason to censor threats themselves.
        But, obviously, it’s impossible. This shows 2 things:
        -By improving public safety you can reduce the desire to censor speech. After all only threats that can be realized can have a chilling effect.
        -There is a fine line between what threats are potentially chilling and what are not. You can’t make a well working scheme that would filter the speech you deem dangerous w/out damaging other speech too.

  7. [...] under: Uncategorized — niezmierniespokojny @ 10:12 am Yesterday Rick Falkvinge posted a piece advocating free speech. Mostly, he talked the usual stuff, importance of free speech, dangers for [...]

  8. 7
    airport traveler

    A Prime example of the chilling effect is the bodyscanners on airports. If you complain about the harrasment there is a good chance you will miss your flight. Therefore nearly everybody just shuts up and goes throught the machine without complaint.

    Next the politicians and airport security claim the lack of complaints as silent agreement with the policy. At least, when you do complain, that is what they say.

    • 7.1
      Scary Devil Monastery

      That’s one prime example – if you don’t accept what you perceive as outrageous and/or unacceptable behaviour by the authority you know you will encur a great many other problems as the result of this.

      So you submit.

  9. 8
    Colin

    I sometimes make international money transfers using SWIFT, which routes the transfer through the USA. As a result I had to agree to my bank, on request, supplying data to the US authorities. This despite the money itself not being transferred from, to or through the USA. I modified the statement permitting this snooping to make clear that I did not like it, but reluctantly accepted it in order to move my money.
    This was not a restriction of my freedom of speech. Instead it was an invasion of my privacy.
    Similarly going through the latest airport scanners is not so much a restriction on my freedom of speech as an invasion of my privacy. I think that a polite mention to the security person at the scanner that you felt the scan to be an invasion of privacy, but you would submit reluctantly because you wanted to get on the plane should be acceptable.
    Of course, in certain large undemocratic countries where they have surrendered masses of freedom indefinitely in exchange for the illusion of security (to paraphrase Benjamin Franklin), my argument might lead to a loss of physical freedom ;-(

  10. 9
    grunde

    Hi Rick,

    I’ve been supporting Amnesty on a monthly basis over many years. And I find your comments on Amnestys position during the hearings for the FRA law quite disturbing.

    When looking around I find this note which seems to be written _after_ the FRA law passed in parlament where they state quite clearly that they consider the FRA law is in conflict with free speech and that the law is also against the European declaration of human rights: http://www2.amnesty.se/externt/aiglobal.nsf/(sidor)/9F986A6DB4ABC29FC12574C40073200B/$file/FRA.pdf

    So can you (or someone else) please elaborate a bit on Amnestys role _before_ the FRA law passed the parlament. And what is/was Amnestys position on the Data Retention Directive and the wave of new draconian surveillance laws ++ which is now coming from western “democracies”?

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Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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