Ethics, Politics, Quick Fix

Don’t confuse constitutional rights with social norms

When Ken over at Popehat gets into a full-on rant about people who don’t understand rights, I’m often sympathetic. It was Ken who made me understand that people who don’t understand rights are a threat to everyone. When many people are misinformed about their rights, those rights become easier to take away.

When Scott at Slate Star Codex talks about good social norms, I’m very keen to listen. Scott helped me understand that social groups are worth cultivating and that it’s a good idea to think about how your group norms will change your experience of interacting with people.

So, when Tessa linked me to a Slate Star Codex post where Scott disagreed with Ken, I had some thinking to do.

The Slate Star Codex post is a response to a piece Ken put up after the furor around Justine Sacco’s tweets a few years back. Ken is defending the right of everyone else on Twitter to say whatever they like in response to Justine Sacco’s thoughtless tweets. The particular part Scott highlights is:

The phrase “the spirit of the First Amendment” often signals approaching nonsense. So, regrettably, does the phrase “free speech” when uncoupled from constitutional free speech principles. These terms often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn’t like. The doctrine of the Preferred First Speaker applies different levels of scrutiny and judgment to the first person who speaks and the second person who reacts to them; it asks “why was it necessary for you to say that” or “what was your motive in saying that” or “did you consider how that would impact someone” to the second person and not the first. It’s ultimately incoherent as a theory of freedom of expression.

Scott disagrees. He argues that there is a spirit of the First Amendment and it’s summed up by Eliezer Yudkowsky with: “Bad argument gets counterargument. Does not get bullet. Never. Never ever never for ever.”

Scott asks to imagine at what point damaging responses become appropriate:

What does “bullet” mean in the quote above? Are other projectiles covered? Arrows? Boulders launched from catapults? What about melee weapons like swords or maces? Where exactly do we draw the line for “inappropriate responses to an argument”?

Scott’s eventual line in the sand is: “Bad argument gets counterargument. Does not get bullet. Does not get doxxing. Does not get harassment. Does not get fired from job. Gets counterargument. Should not be hard.”

I’m sympathetic to what Scott was trying to do here, but ultimately, I’m on the side of Ken.

Scott wants to talk about the spirit of the First Amendment, which is fine. But the spirit he wants to read into it is divorced from the reality of constitutional rights. The First Amendment, like many of the rights in the US Constitution, is a negative right – it prevents the government from acting in a certain way, rather than saying it must provide people with a certain thing. The US Government can’t stop you from saying what you want, but it has no obligation to make you heard. If everyone ignores you, the government will not intervene.

It’s pretty weird to try and read a positive spirit into a negative right. The framers of the Bill of Rights knew when the rights they were setting down were negative rights. They understood the difference between negative and positive rights. To claim that the spirit of a definitely negative right is actually positive feels like an unfair attempt to halo a set of normative ethics (or perhaps aesthetics) with the positive affect that many Americans hold for their constitution.

As far as the government is concerned, as long as people are debating and silencing through legal means, there actually isn’t a distinction between trying to debate and trying to silence. Neither type of speech can be stopped. And I think it’s trivially easy to come up with examples for why neither should be stopped as a matter of routine (if you need inspiration, think of what your worst political enemies call “hate speech” and shudder about it being banned).

Luckily, negative speech and association rights and the government monopoly on force means that it is really hard to credibly threaten people’s freedom of association, so Scott is free to build a subculture that shares his beliefs about normative ethics. A subculture is free to demand positive rights for all members within the context of subculture related discussions and has free association as the perfect tool for enforcing it.

I’m glad that this is what rationalists are trying to do and I like our subculture and all, but we can’t claim that our weird norms are universal positive rights. I know this is a common thing for subcultures to do, but it’s embarrassing.

Leave a Reply

Your email address will not be published. Required fields are marked *