tag:theconversation.com,2011:/au/topics/free-speech-2522/articlesFree speech – The Conversation2024-03-15T12:12:13Ztag:theconversation.com,2011:article/2254922024-03-15T12:12:13Z2024-03-15T12:12:13ZTrump wouldn’t be the first presidential candidate to campaign from a prison cell<figure><img src="https://images.theconversation.com/files/580950/original/file-20240311-16-kra9cy.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C3949%2C2877&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Eugene Debs, center, imprisoned at the Atlanta Federal Prison, was notified of his nomination for the presidency on the socialist ticket by a delegation of leading socialists who came from New York to Atlanta.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/for-the-first-time-in-history-a-candidate-for-president-has-news-photo/530858130?adppopup=true">George Rinhart/Corbis via Getty Images</a></span></figcaption></figure><p>The first trial ever of a former president, the so-called “hush money” case against former president and likely GOP presidential nominee Donald Trump, is scheduled to begin with jury selection in New York <a href="https://apnews.com/article/trump-hush-money-new-york-criminal-case-fbdff18df40920b75873b3a40317f5ee">on March 25, 2024</a>, <a href="https://www.nytimes.com/2024/03/14/nyregion/alvin-bragg-trump-trial-delay.html">though that may be delayed</a> by a month. Trump faces <a href="https://manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/">34 felony charges</a> related to alleged crimes involving bookkeeping on a payment to an adult film actress <a href="https://www.nytimes.com/interactive/2023/04/04/nyregion/trump-indictment-annotated.html">during the 2016 presidential campaign</a>.</p>
<p>Trump is unlikely to wind up in an orange jumpsuit, at least not on this indictment, and probably not before November 2024, in any case. Yet if he does, he would not be the first candidate to run for the White House from the Big House. </p>
<p>In the election of 1920, Eugene V. Debs, the Socialist Party presidential candidate, <a href="https://www.britannica.com/biography/Eugene-V-Debs">polled nearly a million votes</a> without ever hitting the campaign trail. </p>
<p>Debs was behind bars in the federal penitentiary in Atlanta, serving a <a href="https://www.smithsonianmag.com/history/fiery-socialist-challenged-nations-role-wwi-180969386/">10-year sentence for sedition</a>. It was a not a bum rap. Debs had defiantly disobeyed a law he deemed unjust, <a href="https://www.mtsu.edu/first-amendment/article/1239/sedition-act-of-1918">the Sedition Act of 1918</a>. </p>
<p>The act was an anti-free speech measure passed <a href="https://constitutioncenter.org/the-constitution/historic-document-library/detail/espionage-act-of-1917-and-sedition-act-of-1918-1917-1918">at the behest of President Woodrow Wilson</a>. The law made it <a href="https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/40/STATUTE-40-Pg553.pdf">illegal for a U.S. citizen</a> to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the United States government” or to discourage compliance with the draft or voluntary enlistment into the military.</p>
<p>By the time he was imprisoned for sedition, Eugene Victor Debs had enjoyed a lifetime of running afoul of government authority. <a href="https://www.britannica.com/biography/Eugene-V-Debs">Born in 1855</a> into bourgeois comfort in Terre Haute, Indiana, he worked as a clerk and a grocer before joining the Brotherhood of Locomotive Firemen in 1875 and finding his vocation as an <a href="https://debsfoundation.org/index.php/landing/debs-biography/">advocate for labor</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520533/original/file-20230412-18-1i8t9k.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A balding man's profile illustrating an old newspaper article headlined 'There will be work for all and wealth for all willing to work for it.'" src="https://images.theconversation.com/files/520533/original/file-20230412-18-1i8t9k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520533/original/file-20230412-18-1i8t9k.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=416&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520533/original/file-20230412-18-1i8t9k.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=416&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520533/original/file-20230412-18-1i8t9k.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=416&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520533/original/file-20230412-18-1i8t9k.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=523&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520533/original/file-20230412-18-1i8t9k.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=523&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520533/original/file-20230412-18-1i8t9k.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=523&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Eugene Debs ran for president five times, including in 1904, when he wrote this column for The Spokane Press.</span>
<span class="attribution"><a class="source" href="https://chroniclingamerica.loc.gov/lccn/sn88085947/1904-10-26/ed-1/seq-3/">Library of Congress</a></span>
</figcaption>
</figure>
<h2>Representing American socialism</h2>
<p>For the next 30 years, Debs was the <a href="https://www.newyorker.com/magazine/2019/02/18/eugene-v-debs-and-the-endurance-of-socialism">face of socialism in America</a>. He <a href="https://www.britannica.com/biography/Eugene-V-Debs">ran for president four times</a>, in 1900, 1904, 1908 and 1912, garnering around a million votes in the last cycle.</p>
<p>“The Republican, Democratic, and Progressive Parties are but branches of the same capitalistic tree,” <a href="https://ehistory.osu.edu/exhibitions/1912/content/SocialistParty">he told a cheering mass of people</a> in Madison Square Garden in New York during the 1912 campaign. “They all stand for wage slavery.” </p>
<p>In 1916, he opted to <a href="https://www.britannica.com/biography/Eugene-V-Debs">seek a seat in Congress</a> and deferred to socialist <a href="https://www.britannica.com/biography/Allan-L-Benson">journalist Allan L. Benson</a> to head the party’s ticket. Both lost.</p>
<p>In April 1917, when America joined World War I’s bloodbath in Europe, Debs became a fierce opponent of American involvement in what he saw as a death cult orchestrated by rapacious munitions manufacturers. On May 21, 1918, wary of a small but energized and eloquent anti-war movement, <a href="https://doi.org/10.1111/jsch.12219">Wilson signed the Sedition Act into law</a>. </p>
<p>Debs would not be muzzled. On June 18, 1918, in an address in Canton, Ohio, <a href="https://newspapers.library.in.gov/cgi-bin/indiana?a=d&d=RPD19180701.1.11&srpos=2&e=01-07-1918-01-07-1918--en-20--1--txt-txIN-%22Eugene+V.+Debs%22------">he declared that</a> American boys were “fit for something better than for cannon fodder.” </p>
<p>In short order, he was arrested and convicted of violating the Sedition Act. At his sentencing, he told the judge he would not retract a word of his speech even if it meant he would spend the rest of his life behind bars. “I ask for no mercy, <a href="https://www.cantondailyledger.com/story/opinion/columns/2018/07/02/eugene-debs-recalled-as-free/11615035007/">plead for no immunity</a>,” he declared. After a brief stint in the West Virginia Federal Penitentiary, he was sent to serve out his sentence at the Atlanta Federal Penitentiary.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/520552/original/file-20230412-22-mce10q.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A vintage newspaper clipping with the headline 'Socialists Declare Old Parties Are Crumbling.'" src="https://images.theconversation.com/files/520552/original/file-20230412-22-mce10q.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/520552/original/file-20230412-22-mce10q.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1103&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520552/original/file-20230412-22-mce10q.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1103&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520552/original/file-20230412-22-mce10q.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1103&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520552/original/file-20230412-22-mce10q.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1386&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520552/original/file-20230412-22-mce10q.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1386&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520552/original/file-20230412-22-mce10q.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1386&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Last-minute preelection campaigning on Eugene Debs’ behalf by the Socialist Party is described in the New York Tribune of Oct. 27, 1920.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/resource/sn83030214/1920-10-27/ed-1/?sp=2&q=Socialist+Party+1920&st=image&r=0.205,-0.077,0.823,0.351,0">Library of Congress</a></span>
</figcaption>
</figure>
<p>Imprisonment only enhanced Debs’ status with his followers. On May 13, 1920, at its national convention in New York, the Socialist Party unanimously nominated “Convict 2253” as its standard-bearer for the presidency. Debs was later given new digits, so the campaign buttons read “For President, Convict No. 9653.”</p>
<p>As Debs’ name was entered into nomination, a wave of emotion swept over the delegates, who cheered for 30 minutes before bursting into a rousing chorus of the “Internationale,” <a href="https://timesmachine.nytimes.com/timesmachine/1920/05/14/96891587.html?pageNumber=3">the communist anthem</a>. </p>
<h2>A ‘front cell’ campaign</h2>
<p>Debs’ opponents both were better funded and enjoyed freedom of movement: They were <a href="https://www.loc.gov/rr/program/bib/elections/election1920.html">Warren G. Harding, the GOP junior senator from Ohio, and James M. Cox</a>, governor of Ohio, for the Democrats. </p>
<p>Yet Debs did not let incarceration keep his message from the voters. In a wry response to <a href="https://millercenter.org/president/harding/campaigns-and-elections">Harding’s “front porch” campaign</a> style, in which the Republican candidate received visits from the front porch of his home in Marion, Ohio, the Socialist Party announced that its candidate would conduct <a href="https://timesmachine.nytimes.com/timesmachine/1920/07/11/issue.html">a “front cell” campaign</a> from Atlanta. </p>
<p>In 1920, broadcast radio was not a factor in electioneering, but another electronic medium was just beginning to be exploited for political messaging. On May 29, 1920, in a carefully choreographed event, newsreel cameras filmed a delegation from the Socialist Party arriving at the Atlanta penitentiary to inform Debs officially of his nomination. The intertitles of the silent screen described “the most unusual scene in the political history of America – Debs, serving a ten-year term for ‘seditious activities,’ accepts Socialist nomination for Presidency.” </p>
<p>After accepting “a floral tribute from Socialist women voters,” the “Moving Picture Weekly” reported, the denim-clad <a href="https://ia801302.us.archive.org/BookReader/BookReaderImages.php?id=movingpicturewe1014movi_1&itemPath=%2F0%2Fitems%2Fmovingpicturewe1014movi_1&server=ia801302.us.archive.org&page=leaf000474">Debs was shown giving</a> “a final affectionate farewell” before heading “back to the prison cell for nine years longer.” </p>
<p>At motion picture theaters across the nation, audiences watched the staged ritual and, depending on their party registration, reacted with cheers or hisses. </p>
<p>The New York Times was aghast that a felon might canvass for votes from the motion picture screen. </p>
<p>“Under the influence of this unreasoning mob psychology, the acknowledged criminal is nightly applauded as loudly as many of the candidates for the Presidency who have won their honorable eminence by great and unflagging service to the American people,” <a href="https://timesmachine.nytimes.com/timesmachine/1920/06/12/98297951.html?pageNumber=14">read an editorial from June 12, 1920</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520537/original/file-20230412-16-nukmwa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A vintage telegram regarding President Harding's commutation of Eugene Debs' sentence." src="https://images.theconversation.com/files/520537/original/file-20230412-16-nukmwa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520537/original/file-20230412-16-nukmwa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=482&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520537/original/file-20230412-16-nukmwa.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=482&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520537/original/file-20230412-16-nukmwa.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=482&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520537/original/file-20230412-16-nukmwa.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=606&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520537/original/file-20230412-16-nukmwa.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=606&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520537/original/file-20230412-16-nukmwa.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=606&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One year after the election of 1920, President Warren Harding commuted Eugene Debs’ sentence, and he was released from prison on Christmas Day, 1921.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/item/2002697246/">Library of Congress</a></span>
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</figure>
<h2>Public opinion turns</h2>
<p>On Nov. 2, 1920, when <a href="https://www.britannica.com/event/United-States-presidential-election-of-1920">the election results came in</a>, Harding had trounced his Democratic opponent by a record electoral majority, 404 electoral votes to Cox’s 127, with 60.4% of the popular vote to Cox’s 34.1%. Debs was a distant third, but he had won 3.4% of the electorate – 913,693 votes. Debs’ personal-best showing was in the presidential election of 1912, with 6% of the vote. To be fair, that was when he was more mobile.</p>
<p>Even with the Great War over and the Sedition Act repealed by a repentant Congress on Dec. 13, 1920, <a href="https://www.nytimes.com/1921/02/01/archives/wilson-refuses-to-pardon-debs-rejects-palmers-recommendation-to.html">Wilson, during his final months in office, steadfastly refused</a> to grant Debs a pardon. But public opinion had turned emphatically in favor of the convict-candidate. Harding, who took office in March 1921, finally <a href="https://www.washingtonpost.com/history/2022/01/06/warren-harding-eugene-debs/">commuted his sentence</a>, effective on Christmas Day, 1921, along with those of 23 other Great War prisoners of conscience convicted under the Sedition Act.</p>
<p>As Debs exited the prison gates, his <a href="https://www.newspapers.com/image/471549359/?terms=%22Debs%22%20%22cameras%22%20&match=1">fellow inmates cheered</a>. He raised his hat in one hand, his cane in the other, and waved back at them. Outside, the newsreel cameras were waiting to greet him.</p>
<p>It was the kind of photo op that Donald Trump might relish.</p>
<p><em>This is an update of a story that was originally published on April 18, 2023.</em></p><img src="https://counter.theconversation.com/content/225492/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Thomas Doherty does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Can you run for president from a prison cell? One man did in the 1920 election and got almost a million votes.Thomas Doherty, Professor of American Studies, Brandeis UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2247102024-03-06T13:23:25Z2024-03-06T13:23:25ZIsrael-Gaza protests have cost police at least £25 million so far – but can you put a price on free speech?<p>A recent <a href="https://committees.parliament.uk/publications/43477/documents/216201/default/">UK government report</a> has tallied the costs for policing demonstrations about the Gaza war since last October. The first two months alone <a href="https://www.thetimes.co.uk/article/israel-gaza-protests-have-cost-the-met-police-25m-so-far-t0n73qbjp">topped £25 million</a> nationally, and the protests have continued, attended by tens of thousands of marchers. </p>
<p>In a democracy, we expect clarity about public spending, but the costs arising from the scope and frequency of these recent marches have triggered doubts about the price of political protests – under a government that has already <a href="https://www.theguardian.com/world/2023/nov/29/high-court-challenge-to-constitutionally-unprecedented-uk-anti-protest-law">cracked down</a> on our rights to demonstrate, and with an already <a href="https://www.theguardian.com/uk-news/2024/jan/05/police-still-suffering-damage-uk-government-cuts-funding-crisis">severely stretched</a> police force. </p>
<p>We have always known that spending in one area reduces the cash available for another, and yet rarely have we heard calls to spend less on health care so we can spend more on free speech.</p>
<p>But Labour MP Dame Diana Johnson, chair of the parliamentary committee who published the report, <a href="https://www.thetimes.co.uk/article/israel-gaza-protests-have-cost-the-met-police-25m-so-far-t0n73qbjp">has suggested</a> that continued protests could divert resources away from fighting crime.</p>
<p>In publishing this report, the government is effectively asking the public: how much free speech are you willing to pay for?</p>
<h2>The cost of ‘free’ speech</h2>
<p>In the UK, indeed throughout the English-speaking world, we have long assumed that free speech should be, well, free. </p>
<p>Even among our greatest thinkers on the topic – John Stuart Mill leaps to mind – free speech was formulated as a so-called <a href="https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf">“negative” right</a>. This meant that for an individual to speak freely it sufficed for government to stay out of our lives: to do nothing. And surely it would cost nothing for the government to do nothing.</p>
<p>Yet even in Mill’s 19th century, that belief was inaccurate since policing cost money back then too. Today, even at non-political events like carnivals or concerts, citizens expect enough of a police presence to ensure things like public safety and the free flow of pedestrian and street traffic. For large and regularly repeated events like mass protests, the bill swiftly skyrockets.</p>
<p>And while some may think that social media activism has replaced street demos, the opposite is true. Electronic speech means that in-person events can be announced instantaneously to users far and wide, allowing unprecedented speed and levels of mobilisation. </p>
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Read more:
<a href="https://theconversation.com/decade-of-dissent-how-protest-is-shaking-the-uk-and-why-its-likely-to-continue-125843">Decade of dissent: how protest is shaking the UK and why it's likely to continue</a>
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<h2>The role of police at protests</h2>
<p>The policing of public speech serves two functions. The police must protect protesters, as well as onlookers and passersby, from dangers or excessive disruption.</p>
<p>They must also ensure that no one is speaking or acting in ways prohibited by law. In Britain as in most democracies, certain forms of expression identified as hateful are illegal, though the law around what counts as “hateful” <a href="https://theconversation.com/palestine-protest-arrests-why-even-police-are-confused-about-hate-crime-law-216759">is complex</a>. Other actions, like rock throwing and defacing property, are also forbidden.</p>
<p>Met Police commissioner Mark Rowley has <a href="https://www.theguardian.com/politics/live/2024/mar/05/labour-jonathan-ashworth-bet-general-election-may-conservatives-rishi-sunak-uk-politics-latest-updates#top-of-blog">clashed</a> with prime minister Rishi Sunak over how police have handled the protests. Sunak suggested in a press conference that police are managing, not policing marches. In response, Rowley has said that police are being simultaneously criticised for being too heavy-handed, and too lenient – “woke and fascist” at once. Rowley said that 360 arrests have been made at protests. </p>
<p>Despite the Conservative party’s periodic nods to free speech, the last few years have seen crackdowns and restrictions on people’s rights to protest, including through a new <a href="https://theconversation.com/coronation-arrests-how-the-new-public-order-law-disrupted-protesters-once-in-a-lifetime-opportunity-205328">public order law</a>.</p>
<p>We find ourselves in a situation where half the budget seems to be spent on stopping us from speaking while the other half is spent on enabling us to speak. </p>
<p>The government report concludes that if protests continue at their current scale and frequency, the Home Office should consider new guidelines for protest organisers. These might include requiring a notice period of more than the current six days, to allow police to prepare better.</p>
<p>Yet it is unclear how much cost-saving that kind of proposal can bring about. A notice period is just another limit on speech, given that protests often work best through their immediacy and spontaneity. What appears to be a proposal for efficient policing strays too close to being a limit on speech dressed up as a public interest. </p>
<p>The problem is that limits on our civil rights and liberties have always been dressed up as public safety and public order measures. Recent examples include the protesters <a href="https://theconversation.com/coronation-arrests-how-the-new-public-order-law-disrupted-protesters-once-in-a-lifetime-opportunity-205328">detained</a> during King Charles’s 2023 coronation parade before they had even begun any protest, on the suspicion that they might be planning to disturb the peace.</p>
<p>Or the arrests at vigils held for Sarah Everard, the young woman kidnapped, raped, and murdered in 2021 by a Met police officer. For this, the police were sharply criticised and later <a href="https://www.theguardian.com/uk-news/2023/sep/14/met-police-pays-damages-to-women-arrested-at-sarah-everard-vigil">forced to pay out damages</a> to some of those arrested at a peaceful vigil, policed with a heavy hand under existing lockdown rules. </p>
<p>Of course, when the police “pay out”, it is taxpayers who do the paying. Which brings us back to the question at hand: how much is our free speech worth? </p>
<p>If we are not willing to reduce spending in other sectors, or to raise taxes across the board to safeguard people’s rights to demonstrate, the alternative may mean accepting a society where opportunities for public protest become ever more rare.</p><img src="https://counter.theconversation.com/content/224710/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eric Heinze has stood as a candidate for the Liberal Democratic Party.</span></em></p>The police presence needed to ensure free expression costs taxpayers money.Eric Heinze, Professor of Law, Queen Mary University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2245202024-02-29T00:30:44Z2024-02-29T00:30:44ZAustralian writers festivals are engulfed in controversy over the war in Gaza. How can they uphold their duty to public debate?<p>A string of controversies are engulfing Melbourne Writers’ Festival, the Perth Festival’s Writers’ Weekend, the Sydney Opera House’s All About Women and Adelaide Writers Week. There’s a high-profile resignation, calls to cancel speakers and allegations of the spread of “historically untrue” facts and of normalising violence. </p>
<p>All, in one way or another, have been generated by divisions over the war in Gaza.</p>
<p>Writers’ festivals are in a fraught position. They navigate the frontier between social media’s echo chambers of outrage and the traditional public square’s conventions, where restraint, reason and tolerance in the face of opposing views are the basis for civilised debate.</p>
<p>How is it all playing out, and what are the consequences for the public exchange of ideas?</p>
<h2>‘Historically untrue’?</h2>
<p>At <a href="https://www.theage.com.au/national/gaza-conflict-engulfs-melbourne-writers-%20festival-as-leaders-quit-over-program-row-20240222-p5f757.html">Melbourne Writers Festival</a>, the deputy chair of the board, Dr Leslie Reti, has resigned over a poetry session that will involve Aboriginal and Palestinian poets reading their work.</p>
<p>The session is guest-curated by Koori-Lebanese writer Mykaela Saunders. It is based on the proposition Aboriginal and Palestinian people have a shared experience of having been colonised, becoming victims of atrocities by the colonising power. </p>
<p>Melbourne Writers Festival artistic director Michaela McGuire has confirmed the dispute is centred on <a href="https://www.theguardian.com/culture/2024/feb/27/melbourne-writers-festival-deputy-chair-resigns-aboriginal-palestinian-solidarity-poetry-event-gaza-conflict">a line of program copy that reads</a>:</p>
<blockquote>
<p>Aboriginal and Palestinian solidarity has a long history, a relationship that is more vital than ever in the movement to resist colonialism and speak out against atrocities.</p>
</blockquote>
<p>This is a historically contentious proposition. Dr Reti, a retired Jewish clinician, said he respected McGuire’s curatorial independence, but described the material in the draft program as “historically untrue and deeply offensive”.</p>
<p>Prominent Aboriginal scholar Professor Marcia Langton, of the University of Melbourne, has also rejected proposed similarity between the experience of Aboriginal and Palestinian people, <a href="https://www.theage.com.au/national/gaza-conflict-engulfs-melbourne-writers-festival-as-leaders-quit-over-program-row-20240222-p5f757.html">saying</a>, “there is very little comparable in our respective situations, other than our humanity”.</p>
<p>Saunders was one of 132 Indigenous activists, artists and intellectuals who signed <a href="https://therednation.org/statement-of-indigenous-solidarity-with-palestine/">a petition released on October 27 last year</a> that claimed: “The past two weeks of horrific violence in Gaza resulted from 75 years of Israeli settler colonial dispossession”. </p>
<p>McGuire has defended her decision not to change the copy for Saunders’ event, titled Let it Bring Hope, saying “I completely support the right to self-determined programming”. </p>
<p>She <a href="https://www.abc.net.au/listen/programs/melbourne-mornings/melbourne-writers-festival-split-over-war-in-gaza/103512224">told ABC Radio on Monday</a>: “This entire event is about Aboriginal and Palestinian solidarity. It’s not for or about anyone who doesn’t subscribe to that, and so it doesn’t make any sense to not mention that in the event copy.”</p>
<p><a href="https://www.theage.com.au/national/gaza-conflict-engulfs-melbourne-writers-festival-as-leaders-quit-over-program-row-20240222-p5f757.html">Last year</a>, the Melbourne Writers Festival board decided “while writers should be free to express their views, the festival should not take a public position on the war”.</p>
<p>The Age <a href="https://www.theage.com.au/national/gaza-conflict-engulfs-melbourne-writers-%20festival-as-leaders-quit-over-program-row-20240222-p5f757.html">reported on Monday</a> that Fiona Menzies, the festival’s interim chief executive, also resigned over the festival’s program. But Alice Hill, chair of the board, <a href="https://www.theguardian.com/culture/2024/feb/27/melbourne-writers-festival-deputy-chair-resigns-aboriginal-palestinian-solidarity-poetry-event-gaza-conflict">told the Guardian</a> that Menzies had resigned “for personal reasons, and would continue her relationship with the festival in a consultancy capacity”.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-palestinian-authors-award-ceremony-has-been-cancelled-at-frankfurt-book-fair-this-sends-the-wrong-signals-at-the-wrong-time-215712">A Palestinian author's award ceremony has been cancelled at Frankfurt Book Fair. This sends the wrong signals at the wrong time</a>
</strong>
</em>
</p>
<hr>
<h2>Normalising violence?</h2>
<p>In Perth, the argument was over the inclusion of Jewish singer-songwriter Deborah Conway in the opening night of the Perth Festival’s Writers’ Weekend last week. In <a href="https://www.abc.net.au/listen/programs/radionational-breakfast/israel-gaza-arts-protests-deborah-conway/103231158">an interview on ABC Radio National</a>, she had questioned whether Palestinian children killed by the Israeli Defence Forces were really children. (“It depends on what you really call kids.”)</p>
<p>Conway contextualised her remarks to me this week, saying: </p>
<blockquote>
<p>I was trying to tell listeners, in the cut and thrust of a live interview situation, that when Hamas put guns in the hands of their adolescent sons to point at the enemy, Hamas steals their childhood, turns them into fighters & then turns them into casualty figures. It’s unbearably cruel. I wasn’t talking about babies or little children, nor was I defining what I think to be a child, it goes without saying that the deaths of innocents are always tragic.</p>
</blockquote>
<p>In an <a href="https://docs.google.com/forms/d/e/1FAIpQLSfUvUWq0GLIbhstqVzFMsxguiWjawr__aTI-CeKuZQoZUfJng/viewform">open letter to the festival</a>, more than 500 writers and arts workers said that by including Conway, the festival was putting safety at risk and giving a platform to someone whose comments on the radio “seek to normalise the ongoing genocide enacted by the state of Israel against the Palestinian people”.</p>
<p>This provoked a response from Dr Nick Dyrenfurth, executive director of the John Curtin Research Centre, a left-of-centre think tank, in which he said Conway’s “crime of being Jewish” was the reason <a href="https://independentaustralia.net/politics/politics-display/festival-slammed-for-promoting-%20deborah-conway-after-palestine-comments,18359">this attempt was being made to “deplatform” her</a>.</p>
<p>In Sydney, a petition protesting against the appointment of the feminist author Clementine Ford as a co-curator of the Opera House’s <a href="https://www.sydneyoperahouse.com/all-about-women">All About Women</a> festival has garnered about 6,700 signatures since it was started on 6 February. Ford has programmed three events at the festival.</p>
<p>The <a href="https://www.australianjewishnews.com/petition-against-%20opera-house-appearance/">petition alleges</a> Ford’s public communications since the attacks by Hamas on Israel on 7 October 2023 have made “a direct and harmful” contribution to the “hateful climate” that has developed in Australia since those attacks, exemplified by a <a href="https://www.news.com.au/national/australian-jews-suffer-738-per-cent-spike-in-antisemitic-abuse/news-story/33ed1f60ff568d31ce399b325bbc03a2">738% increase</a> in anti-Semitic incidents, as recorded by the Executive Council of Australian Jewry.</p>
<p>Ford has not called for violence against Jewish people.</p>
<p>The MP for the Sydney seat of Vaucluse in the New South Wales Parliament, Kellie Sloane, and some Jewish community leaders have raised their concerns about Ford’s curatorship, following her involvement in <a href="https://theconversation.com/doxing-or-in-the-public-interest-free-speech-cancelling-and-the-ethics-of-the-jewish-creatives-whatsapp-group-leak-223323">the alleged “doxing”</a> of about 600 Jewish writers, artists and academics. This involved the social media sharing of personal details, including names and professions, leaked from a WhatsApp group, without their consent.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/doxing-or-in-the-public-interest-free-speech-cancelling-and-the-ethics-of-the-jewish-creatives-whatsapp-group-leak-223323">Doxing or in the public interest? Free speech, 'cancelling' and the ethics of the Jewish creatives' WhatsApp group leak</a>
</strong>
</em>
</p>
<hr>
<p>The president of the Executive Council of Australian Jewry, Daniel Aghion, <a href="https://www.theaustralian.com.au/nation/political-and-jewish-leaders-raise-clementine-ford-%20curatorship-red-flag-after-creatives-doxxing/news-story/aae6e8abdd09fb3393711c3c3c9bb544">was reported as saying</a> it was “baffling” someone who had caused this kind of harm should be appearing at one of Australia’s “most prestigious forums”.</p>
<p>Some Jewish leaders, including Anti-Defamation Commission chairman, Dr Dvir Abramovich, want Ford <a href="https://www.adelaidenow.com.au/news/south-australia/jewish-leaders-have-called-for-clementine-ford-to-be-banned-%20from-adelaide-writers-week/news-story/8252b039c71c87c80afae3fe012d03f9%20So%20far,%20none%20of%20the%20protests%20have%20resulted%20in%20any%20of%20these%20people%20being%20banned.">banned from the Adelaide Festival’s Writers’ Week</a>, which starts this weekend, on 2 March.</p>
<p>Louise Adler, director of Adelaide Writers Week, <a href="https://www.adelaidenow.com.au/entertainment/adelaide-festival/adelaide-writers-week-2024-festival-hit-with-new-backlash-as-organisers-strongly-defend-program/news-story/c56fcae109190ffa206c55119d756b59">resisted calls to remove Ford</a> from the program, saying “I chose Clementine Ford because of her writing on contemporary Australian sexual politics and about her current book about marriage, which I thought was interesting.” She called her views on “other issues” on social media “immaterial”.</p>
<p>South Australian Premier Peter Malinauskas <a href="https://www.adelaidenow.com.au/news/south-australia/jewish-leaders-have-called-for-clementine-ford-to-be-banned-from-adelaide-writers-week/news-story/8252b039c71c87c80afae3fe012d03f9">declined to get involved</a>, saying he would not be a “premier that engages in censorship at arts festivals”.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/are-calls-to-cancel-two-palestinian-writers-from-adelaide-writers-week-justified-200165">Are calls to cancel two Palestinian writers from Adelaide Writers' Week justified?</a>
</strong>
</em>
</p>
<hr>
<h2>Freedom of speech challenged</h2>
<p>Each of these cases presents a challenge to freedom of speech, for different reasons and in different ways.</p>
<p>Writers’ festivals are opportunities for the public to see and hear from people who are presumed to have thought deeply about complex issues, and who have written about them. They are also forums for the writers themselves to challenge and be challenged on their points of view.</p>
<p>In a world conditioned by the emotive views and intolerant habits of social media, where those who hold opposing views are often seen as irredeemable and even illegitimate, it requires a demanding intellectual effort to adjust to the world of the public square.</p>
<p>There, by convention, opposing views are tolerated, even respected, and questions are decided by reasoned argument based on evidence – rather than emotive, sometimes insulting, rhetoric.</p>
<p>The current debates around these festivals show our society is a fair way from making this adjustment.</p>
<p>In the Melbourne case, the problem arises because of a contestable claim in the draft program that “Aboriginal and Palestinian solidarity has a long history, a relationship that is more vital than ever in the movement to resist colonialism and speak out against atrocities”.</p>
<p>Whether or not there is a long history of solidarity between Aboriginal and Palestinian people – which Professor Langton, for one, rejects – might be debated. But the wording of the draft program presents the debate as already decided in the affirmative. That might represent the view of curator Mykaela Saunders and some other First Nations people, but clearly not all of them.</p>
<p>In the Perth case, Conway’s statement questioning whether the children killed by the Israel Defence Forces are really children is, for the most part, demonstrably false, as we see nightly on the television news. This does harm. A falsehood pollutes the community’s information pool. </p>
<p>In the Sydney and Adelaide cases, Ford’s participation in the Whatsapp leak is likewise harmful. The leak violated people’s privacy and put people’s safety at risk. The harm principle sets the boundary at which the individual’s right of free speech gives way to the larger public interest in harm prevention.</p>
<p>The case in principle against Ford is particularly strong because of the obvious harm caused by the public dissemination of people’s private information. The fact that she is not programmed to speak about the war in Gaza at her events – she is speaking about her anti-marriage book in both <a href="https://www.sydneyoperahouse.com/all-about-women/play-the-girl">Sydney</a> and <a href="https://www.adelaidefestival.com.au/events/2024-writers-week/i-do-i-don-t/">Adelaide</a> – makes no difference to this point of principle. In practice, however, banning her would risk making her into a martyr. </p>
<p>None of these festivals have responded to public pressure to change their programs, speakers or even the wording of their copy. Better still, rather than banning speakers or changing programs, festivals could arrange to include challenges on these controversial actions and words. For example, someone in Ford’s position could be invited to make the case for the WhatsApp leak and be challenged on its violation of privacy principles.</p>
<p>That way, the festivals would do their job of promoting debate. A festival where the outcome is a foregone conclusion, or where the openmindedness of the organisers is in question, is just another echo chamber.</p>
<p>Against that, there is the question of public safety, which has been raised by those who wanted Conway banned in Perth and Ford in Adelaide. The exact threat to public safety is not spelt out, but the debate shows we urgently need to learn to better negotiate this frontier between social media and the world of flesh and blood.</p>
<hr>
<p><em>This article has been amended to clarify the context of Deborah Conway’s remarks during her earlier radio interview.</em></p><img src="https://counter.theconversation.com/content/224520/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Denis Muller does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Writers festivals navigate the fraught frontier between social media’s echo chambers of outrage and the civilised public debate of the public square. What’s the way forward in this heated atmosphere?Denis Muller, Senior Research Fellow, Centre for Advancing Journalism, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2233232024-02-14T00:53:07Z2024-02-14T00:53:07ZDoxing or in the public interest? Free speech, ‘cancelling’ and the ethics of the Jewish creatives’ WhatsApp group leak<figure><img src="https://images.theconversation.com/files/575250/original/file-20240213-20-7r8ddf.jpg?ixlib=rb-1.1.0&rect=69%2C23%2C5106%2C3414&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Nap1/Shutterstock</span></span></figcaption></figure><p>The recent release of a leaked transcript of a private WhatsApp group for Jewish writers, artists, musicians and academics has stirred a controversy that has led to <a href="https://www.theage.com.au/national/hundreds-of-jewish-creatives-have-names-details-taken-in-leak-published-online-20240208-p5f3if.html">threats of violence</a>, <a href="https://www.theguardian.com/australia-news/2024/feb/09/josh-burns-jewish-whatsapp-group-channel-publication-israel-palestine-clementine-ford#:%7E:text=The%20publishing%20of%20a%20Jewish,MP%20Josh%20Burns%20has%20said">a family in hiding</a>, and the <a href="https://www.abc.net.au/news/2024-02-13/federal-government-to-criminalise-doxxing/103458052">fast-tracking</a> of new federal legislation to criminalise doxing. </p>
<p>The WhatsApp group in question, administered by writer Lee Kofman, was formed to give Jewish creative people a private and supportive space to connect, in the wake of the October 7 Hamas attacks and Israel’s war in Gaza. Not all members knew they had been added to the group at first, and many didn’t participate in the conversations that resulted in the leak.</p>
<p>Last week, a transcript from the group chat was leaked and uploaded onto social media by pro-Palestinians, including the writer Clementine Ford. <a href="https://www.theage.com.au/national/hundreds-of-jewish-creatives-have-names-details-taken-in-leak-published-online-20240208-p5f3if.html">The leak included</a> a spreadsheet with links to social media accounts and “a separate file with a photo gallery of more than 100 Jewish people”.</p>
<p>This week, a joint statement from “First Nations, Palestinian, Lebanese and anti-Zionist Jewish activist collectives, community leaders, artists” and those who said they had been “targeted” by particular chat members <a href="https://www.instagram.com/p/C3MIOyySAfM/?hl=en&img_index=1">argued</a> the WhatsApp transcript</p>
<blockquote>
<p>clearly demonstrates collective actions taken by zionists to contact employers, funding bodies, publishers and journalists to censure anyone deemed to be a threat to the zionist narrative.</p>
</blockquote>
<p>The leak gives rise to a complex tangle of contemporary ethical issues, including concerns with privacy, doxing, free speech and “cancelling”.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/575254/original/file-20240213-18-jhf7np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/575254/original/file-20240213-18-jhf7np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/575254/original/file-20240213-18-jhf7np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/575254/original/file-20240213-18-jhf7np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/575254/original/file-20240213-18-jhf7np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/575254/original/file-20240213-18-jhf7np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/575254/original/file-20240213-18-jhf7np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/575254/original/file-20240213-18-jhf7np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Writer and feminist Clementine Ford was targeted by some group members for her pro-Palestinian views.</span>
<span class="attribution"><span class="source">Allen & Unwin</span></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/israel-hamas-war-what-is-zionism-a-history-of-the-political-movement-that-created-israel-as-we-know-it-217788">Israel-Hamas war: What is Zionism? A history of the political movement that created Israel as we know it</a>
</strong>
</em>
</p>
<hr>
<h2>Privacy and public interest</h2>
<p>The WhatsApp group was a private one, where group members would have had a reasonable expectation their conversation would not be made public.</p>
<p>Everyone needs a <a href="https://www.theage.com.au/national/this-isn-t-advocacy-social-posts-on-distant-conflict-tear-at-close-community-20240208-p5f3h6.html">place</a> to let off steam, to make conjectures and speculations, and to speak in an unguarded way among trusted people. <a href="https://www.un.org/en/about-us/universal-declaration-of-human-rights">Violating people’s privacy</a> (especially through leaking information onto the forever-searchable internet) is always a moral cost. </p>
<p>But sometimes that cost must be paid, particularly if the exposure is in the public interest. Whistleblowers, for example, often justifiably release confidential information.</p>
<p>It could be argued that revealing the WhatsApp group’s activities <em>was</em> in the public interest. Pro-Palestinian writers and editors worried they were being targeted for their public statements in a way that imperilled their livelihoods, or were concerned about a similar risk to others. There is evidence this threat was real.</p>
<p>One of the <a href="https://www.theage.com.au/national/hundreds-of-jewish-creatives-have-names-details-taken-in-leak-published-online-20240208-p5f3if.html">targeted</a> pro-Palestinian figures was the broadcaster Antoinette Lattouf, who was fired, and has filed an <a href="https://www.theguardian.com/media/2023/dec/22/antoinette-lattouf-files-unlawful-termination-claim-over-losing-abc-radio-role-after-israel-gaza-social-media-posts">unlawful termination claim</a> against the ABC. </p>
<p>There was also <a href="https://independentaustralia.net/business/business-display/pro-palestinian-supporters-under-attack-in-australia,18296">a collective effort to target</a> vocally <a href="https://overland.org.au/2023/11/to-let-suffering-speak-a-response-to-our-critics/">pro-Palestinian</a> literary journal Overland, and its co-editors Jonathan Dunk and <a href="https://twitter.com/evelynaraluen/status/1753977179346776211">Evelyn Araluen</a>. Some within the Whatsapp group called for complaints to be made to Deakin University, where Araluen and Dunk are employed as academics, and also to Creative Victoria, which funds Overland.</p>
<p>And <a href="https://www.theguardian.com/australia-news/2024/feb/09/josh-burns-jewish-whatsapp-group-channel-publication-israel-palestine-clementine-ford">the Guardian reported</a> that others in the group encouraged members to contact the publisher of Ford, a vocal pro-Palestinian, and target others in the media, over their coverage of Israel and Palestine.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/friday-essay-what-else-should-i-lose-to-survive-the-young-writers-living-and-dying-in-gaza-219806">Friday essay: 'what else should I lose to survive?' The young writers living – and dying – in Gaza</a>
</strong>
</em>
</p>
<hr>
<h2>The ethics of doxing</h2>
<p>“<a href="https://theconversation.com/what-is-doxing-and-how-can-you-protect-yourself-223428">Doxing</a>” refers to the public release (usually onto the internet) of identifiable information about a person. It is usually done without the person’s consent, and aims to expose or punish them in some way. </p>
<p>A <a href="https://www.instagram.com/p/C3MIOyySAfM/?hl=en&img_index=1">statement</a> from those behind the release asserted no links had been made to members’ addresses, phone numbers or emails, which were all deliberately redacted. This is important. </p>
<p>“<a href="https://doi.org/https:/doi.org/10.1007/s10676-016-9406-0.">Targeted doxing</a>” – where information on a person’s physical location or address is released – is particularly sinister. However, the release of people’s identities is still <a href="https://doi.org/10.1007/s10676-016-9406-0">a form of doxing</a> and a serious moral concern. Evidence of the group’s activities that were in the public interest could arguably have been provided without naming names. The public gained little from knowing exactly who was in the almost 600-strong group. </p>
<p>Worse still, only some in the group were active in the actions against pro-Palestinians that prompted the leak, but this made no difference to whose identities were shared. This creates additional ethical concerns, with the risk innocent parties are being inappropriately punished or harassed for the actions committed by other group members. </p>
<p>Identifying individuals came at a real cost. Predictably, some parties <a href="https://www.theage.com.au/national/this-isn-t-advocacy-social-posts-on-distant-conflict-tear-at-close-community-20240208-p5f3h6.html">did attach</a> information about names, occupations, social media profiles, and even pictures to the leaked transcript. </p>
<p>Tragically, threats of violence were later made, even to people’s <a href="https://www.theage.com.au/national/this-isn-t-advocacy-social-posts-on-distant-conflict-tear-at-close-community-20240208-p5f3h6.html">children</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-is-doxing-and-how-can-you-protect-yourself-223428">What is doxing, and how can you protect yourself?</a>
</strong>
</em>
</p>
<hr>
<h2>What was the WhatsApp group doing?</h2>
<p>The WhatsApp group conversations were wide-ranging, and some members made <a href="https://www.theage.com.au/national/this-isn-t-advocacy-social-posts-on-distant-conflict-tear-at-close-community-20240208-p5f3h6.html">statements</a> many might find offensive or upsetting.</p>
<p>One part of the group’s activities involved organised <a href="https://www.theguardian.com/australia-news/2024/feb/09/josh-burns-jewish-whatsapp-group-channel-publication-israel-palestine-clementine-ford#:%7E:text=The%20publishing%20of%20a%20Jewish,MP%20Josh%20Burns%20has%20said">letter-writing</a>, including to the employers or publishers of writers or journalists they felt crossed the line into anti-Semitism.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/575246/original/file-20240213-24-wlrtzf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/575246/original/file-20240213-24-wlrtzf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/575246/original/file-20240213-24-wlrtzf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/575246/original/file-20240213-24-wlrtzf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/575246/original/file-20240213-24-wlrtzf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/575246/original/file-20240213-24-wlrtzf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/575246/original/file-20240213-24-wlrtzf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/575246/original/file-20240213-24-wlrtzf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One aspect of the WhatsApp group’s activities was letter-writing.</span>
<span class="attribution"><span class="source">BigTunaOnline/Shutterstock</span></span>
</figcaption>
</figure>
<p>On its face, such communications are clearly legitimate, and a part of democratic life. Letters can be used to raise awareness of ethical concerns, to share information and ideas, and to persuade.</p>
<p>But letters can also do other things, and an innocuous practice can sometimes gradually progress into more fraught territory. Rather than persuading, letters can pressure others, perhaps threatening their organisations with public shaming. They can also try to get people to act in ways that are morally concerning — such as having someone sacked for their political views.</p>
<p>One member <a href="https://www.theage.com.au/national/this-isn-t-advocacy-social-posts-on-distant-conflict-tear-at-close-community-20240208-p5f3h6.html">had offered in the group chat</a> to “do a deep dive” into the social media posts of Nadine Chemali, a freelance writer and occasional SBS contributor who describes herself as avidly pro-Jew but anti-Israel, to see if there was anything there that might breach her contract with SBS. (This deep dive wasn’t done.)</p>
<p>While certainly legal, such practices are ethically concerning because they deliberately and systematically create workplace challenges for individuals and organisations that put forward controversial views.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/10-books-to-help-you-understand-israel-and-palestine-recommended-by-experts-217783">10 books to help you understand Israel and Palestine, recommended by experts</a>
</strong>
</em>
</p>
<hr>
<h2>Should artists be protected?</h2>
<p>Before the story broke in the media, but after extracts from the group chat began circulating on social media, the Australian Society of Authors Board published a <a href="https://www.asauthors.org.au/news/asa-board-letter-to-members/">letter</a> noting its “growing concern” that artists and authors in Australia were facing repercussions for expressing their political positions publicly or in their work. </p>
<p>The society stated its commitment to freedom of speech (within the limits set by law) and its opposition to attempts to silence or intimidate authors.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/575247/original/file-20240213-28-jhf7np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/575247/original/file-20240213-28-jhf7np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/575247/original/file-20240213-28-jhf7np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/575247/original/file-20240213-28-jhf7np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/575247/original/file-20240213-28-jhf7np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/575247/original/file-20240213-28-jhf7np.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/575247/original/file-20240213-28-jhf7np.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/575247/original/file-20240213-28-jhf7np.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Australian Society of Authors stated its commitment to free speech.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/red-pen-taped-x-on-wooden-2274678701">Pla2na/Shutterstock</a></span>
</figcaption>
</figure>
<p>We might try to frame the underlying moral principle at work as a principle of political tolerance. People should not suffer workplace repercussions, discrimination or be pushed out of their livelihood on the basis of their political views (and still less on the basis of their religion or race).</p>
<p>Simple, right? Not quite.</p>
<p>The society also opposed attempts to intimidate or silence people through hate speech, explicitly noting antisemitism, and anti-Palestinian and anti-Arab rhetoric. </p>
<p>This hints at a different, also relevant, moral principle – preventing harm. Hate speech, racism and bigotry, and harmful disinformation or stereotyping, should be stopped, and speakers should face the consequences of their wrongdoing.</p>
<p>There are cases where these principles of tolerance and harm-prevention can be sensibly aligned. For example, many people would agree that no one should be pushed out of their job because they support a mainstream political party — but that people should face social and professional repercussions if they hurl around racist slurs. </p>
<p>However, it’s tempting to interpret harm prevention beyond this bare minimum. After all, surely it’s a good thing to prevent the spread of misinformation, harmful stereotypes and hateful speech — and to stand up against wrongdoing more generally. </p>
<p>This is where the two principles begin to directly conflict. What we perceive as dangerous misinformation or harmful speech (like antisemitism or Islamophobia) will inevitably be coloured by our cultural, political and moral worldviews. </p>
<p>In other words, many will agree in principle that we should tolerate those who think differently. But it is precisely those who think differently who will disagree with us about what counts as harmful or wrongful speech.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/friday-essay-rai-gaita-and-the-moral-power-of-conversation-217670">Friday essay: Rai Gaita and the moral power of conversation</a>
</strong>
</em>
</p>
<hr>
<h2>Ethical worries</h2>
<p>Punishing, undermining and silencing others on the basis of our political beliefs gives rise to two potential ethical worries (both arise with respect to the modern phenomenon of “<a href="https://theconversation.com/is-cancel-culture-silencing-open-debate-there-are-risks-to-shutting-down-opinions-we-disagree-with-142377">cancel culture</a>”).</p>
<p>The first is <a href="https://www.theage.com.au/national/this-isn-t-advocacy-social-posts-on-distant-conflict-tear-at-close-community-20240208-p5f3h6.html">hypocrisy</a>. Each side declares: “<em>We</em> are a support group nobly taking a stand against harmful bigotry and hate. <em>You</em> are a lynch mob maliciously plotting to silence others, dox them, and destroy their careers.”</p>
<p>If we think it’s okay for people like us to get others sacked for speech we find shocking and awful, we have to accept that it’s okay for <em>others</em> to get us (and those who think like us) sacked for speech they find shocking and awful. </p>
<p>But few are willing to accept that. This seems a <a href="https://www.jstor.org/stable/24220050">clear failure</a> of moral consistency.</p>
<p>The other problem is tit-for-tat conflict escalation. If you punish me (with public shaming or getting me fired) for saying something you think is harmful, (that I don’t see as harmful), I will inevitably see your act as a wrongful violation of the principle of political tolerance. Now, I have reason to push back against you – to no longer tolerate <em>your</em> speech.</p>
<p>We can see this escalation playing out in this case. One of the initial concerns behind forming the group was the worry about <a href="https://www.theage.com.au/national/this-isn-t-advocacy-social-posts-on-distant-conflict-tear-at-close-community-20240208-p5f3h6.html">rising intolerance</a> towards Jewish people – including unfairly having their careers jeopardised. </p>
<p>But their letter-writing campaigns made pro-Palestinian creatives fear <em>their</em> careers were unfairly jeopardised.</p>
<p>This could make some of them feel justified in revealing details of members of the WhatsApp group (not just those who participated in these conversations or activities) and sharing the group’s private messages. Tragically, some isolated individuals – not necessarily connected to the pro-Palestinians – felt justified in going further, even to threats of violence. </p>
<p>Ultimately, tolerance is not easy — especially with respect to others with different political and moral worldviews. </p>
<p>But it’s hard to see a viable solution to conflicts like these, other than all sides accepting others must be broadly entitled to speak, write and create in ways that seem right to them – without threats of cancellation, firing, privacy-breaches, or doxing.</p><img src="https://counter.theconversation.com/content/223323/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Breakey does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A private group chat of Jewish creatives was leaked because some were organising against pro-Palestinians. Was it ethical to do so?Hugh Breakey, Deputy Director, Institute for Ethics, Governance & Law. President, Australian Association for Professional & Applied Ethics., Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2233292024-02-13T03:06:14Z2024-02-13T03:06:14ZAs the war in Gaza continues, Germany’s unstinting defence of Israel has unleashed a culture war that has just reached Australia<figure><img src="https://images.theconversation.com/files/574913/original/file-20240212-24-s96z2v.jpg?ixlib=rb-1.1.0&rect=8%2C26%2C5982%2C3763&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Ghassan Hage</span> <span class="attribution"><span class="source">Sweatshop Literary Movement</span></span></figcaption></figure><p>Globally renowned Australian intellectual Ghassan Hage has devoted his career to unpicking the nature of racism in multicultural Australia and elsewhere – with the kind of bravura and theoretical flair that either attracts or repels readers, according to type. </p>
<p><a href="https://theconversation.com/ghassan-hage-is-one-of-australias-most-significant-intellectuals-hes-still-on-a-quest-for-a-multicultural-society-that-hopes-and-cares-206753">His work</a> led him to being offered a stint at Germany’s prestigious <a href="https://www.mpg.de/153644/social-anthropology">Max Planck Institute for Social Anthropology</a>. </p>
<p>On February 7 2024, however, after an article in the German newspaper <em>Welt am Sonntag</em> accused him of “<a href="https://www.welt.de/politik/deutschland/plus249881966/Max-Planck-Gesellschaft-Antisemitismus-Skandal-erschuettert-deutsche-Nobelpreis-Schmiede.html">hatred of Israel</a>”, the Max Planck Society issued a terse <a href="https://www.mpg.de/21510445/statement-ghassan-hage">statement</a> ending its “working relationship” with Hage. </p>
<p>This came less than two months after the Max Planck Foundation, with war in Gaza raging, had <a href="https://www.mpg.de/max-planck-israel-programme">announced</a> “additional funding for German-Israeli collaborations”.</p>
<p>The Melbourne-based academic was accused by the Institute of having “abused his civil liberties” and his “fundamental right to freedom of opinion”. The organisation insisted that “racism, Islamophobia, antisemitism, discrimination, hatred and agitation have no place in the Max Planck Society”. </p>
<p>The implication was clear – Hage’s trenchant criticism of Israel’s war, particularly on <a href="https://twitter.com/anthroprofhage">social media</a>, had seen him fired. As he wrote in his <a href="https://hageba2a.blogspot.com/2024/02/statement-regarding-my-sacking-from-max.html">statement</a>: </p>
<blockquote>
<p>What to me is a fair, intellectual critique of Israel, for them is “antisemitism according to the law in Germany”.</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/ghassan-hage-is-one-of-australias-most-significant-intellectuals-hes-still-on-a-quest-for-a-multicultural-society-that-hopes-and-cares-206753">Ghassan Hage is one of Australia's most significant intellectuals. He's still on a quest for a multicultural society that hopes and cares</a>
</strong>
</em>
</p>
<hr>
<h2>A political ideal</h2>
<p>So what is Hage’s position on Israel? As he succinctly writes: </p>
<blockquote>
<p>I have a political ideal that I have always struggled for regarding Israel/Palestine. It is the ideal of a multi-religious society made from
Christians, Muslims and Jews living together on that land.</p>
</blockquote>
<p>His criticism of current Israeli policy, he insists, stems from the Netanyahu government’s determination to “work against such a goal”. But it is also a critique he extends to Palestinian organisations that similarly rule out co-existence.</p>
<p>In this, Hage’s position is not unlike other anti-racist visions of a multicultural Israel/Palestine, either as a <a href="https://arabcenterdc.org/resource/shifting-the-paradigm-the-one-state-solution-as-a-path-to-peace/">single state</a> or as a <a href="https://www.analystnews.org/posts/genocide-scholar-omer-bartov-says-only-a-political-solution-can-bring-peace-to-israel-palestine-and-he-has-one-in-mind">confederation</a> of two states with freedom of movement between them. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-is-the-two-state-solution-to-the-israeli-palestinian-conflict-221872">Explainer: what is the two-state solution to the Israeli-Palestinian conflict?</a>
</strong>
</em>
</p>
<hr>
<p>This is not the first time a prestigious German organisation has severed ties with a respected intellectual for asking serious questions about Israel’s conduct in the war or its broader track record of relations with the Palestinians. </p>
<p>Masha Gessen’s evocative New Yorker essay <a href="https://www.newyorker.com/news/the-weekend-essay/in-the-shadow-of-the-holocaust">In the Shadow of the Holocaust</a> caused a newspaper scandal in Germany for comparing the war in Gaza to the Nazi liquidation of a Jewish ghetto. The Russian-American (and Jewish) writer was to be honoured at an award ceremony that was subsequently <a href="https://www.theguardian.com/world/2023/dec/14/award-ceremony-suspended-after-writer-masha-gessen-compares-gaza-to-nazi-era-jewish-ghettos">suspended</a>, after an initial withdrawal of support by the Green Party affiliated think tank that sponsors the prize.</p>
<p>The suspended award was, ironically, named after <a href="https://theconversation.com/the-book-that-changed-me-hannah-arendts-eichmann-in-jerusalem-and-the-problem-of-terrifying-moral-complacency-187600">Hannah Arendt</a>, whose caustic comments on Israel, <a href="https://www.theguardian.com/commentisfree/2023/dec/18/hannah-arendt-prize-masha-gessen-israel-gaza-essay">many appreciated</a>, would probably have seen her deemed ineligible too. </p>
<p>Elsewhere in Germany, the musician and artist <a href="https://www.theguardian.com/music/2024/feb/01/laurie-anderson-ends-german-professorship-pro-palestine-letter">Laurie Anderson</a> withdrew from a guest professorship in Essen after her signature on a 2021 “Letter Against Apartheid” targeting Israel’s treatment of the Palestinians was unearthed and the university “engaged in talks” with her as a result. </p>
<p>Before that, in the immediate aftermath of the Hamas attacks on October 7, the Frankfurt Book Fair <a href="https://www.timesofisrael.com/frankfurt-book-fair-hit-by-furor-after-postponing-prize-for-palestinian-author/">postponed the ceremony for its literary award</a> for Palestinian writer Adania Shibli. If this had been an attempt to avoid controversy, it failed. Not only did it cause an <a href="https://www.theguardian.com/commentisfree/2023/oct/20/germany-israel-palestinian-author-frankfurt-adania-shibli">international furore</a>, another of the book fair’s honoured guests, Slavoj Žižek, used the occasion to offer a <a href="https://www.dw.com/en/israel-hamas-war-impacts-frankfurt-book-fair/a-67126160">blistering assessment</a> of Israel’s treatment of the Palestinians. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-palestinian-authors-award-ceremony-has-been-cancelled-at-frankfurt-book-fair-this-sends-the-wrong-signals-at-the-wrong-time-215712">A Palestinian author's award ceremony has been cancelled at Frankfurt Book Fair. This sends the wrong signals at the wrong time</a>
</strong>
</em>
</p>
<hr>
<p>Perhaps most famously, well before the October 7 attacks, Germany’s first Commissioner for Jewish Life in Germany and the Fight against Anti-Semitism (a position created in 2018) demanded the African thinker <a href="https://www.dw.com/en/why-achille-mbembe-was-accused-of-anti-semitism/a-53293797">Achille Mbembe</a> be barred from giving the opening speech at a major cultural festival in Bochum in 2020 (ultimately cancelled due to COVID). Mbembe was accused of antisemitism and relativising the Holocaust for comparing the state of Israel with the apartheid system in South Africa. </p>
<p>These are just the most prominent examples. Other smaller incidents have slipped past the notice of many. Anti-Zionist Jews in Germany, such as <a href="https://www.theguardian.com/commentisfree/2023/nov/13/germany-jewish-criticise-israel-tv-debate">Deborah Feldman</a>, have faced condemnation for their refusal to fall into line.</p>
<p>There have been a number of <a href="https://www.aljazeera.com/news/2022/9/5/german-court-rules-palestinian-ex-dw-journalist-sacking-unlawful">unlawful dismissals</a> of Arab journalists, such as Maram Salem and Farah Maraqa, on false charges of antisemitism. Dismissals for criticism of Israel are <a href="https://www.business-humanrights.org/en/latest-news/germany-axel-springer-fires-employee-for-allegedly-questioning-pro-israel-stance-amid-concerns-of-alleged-intensified-german-suppression-of-palestinian-voices-incl-co-comment/">not isolated incidents</a>.</p>
<h2>Self-imposed red lines</h2>
<p>Why is this happening in Germany? </p>
<p>It is worth pointing out that it is not just happening in Germany. Versions of this are playing out elsewhere. Universities in the <a href="https://abcnews.go.com/US/department-education-investigates-6-schools-discrimination-amid-tensions/story?id=105494396">United States</a> are under siege from students and community groups variously accusing them of both antisemitism and Islamophobia. </p>
<p>Largely, however, what’s happening in Germany is a result of some self-imposed red lines the German press, the German courts and the German parliament have imposed on public debate. </p>
<p>Comparing Israel’s treatment of the Palestinians to South African <a href="https://www.dw.com/en/germany-rejects-amnestys-apartheid-label-for-israel/a-60637149">apartheid</a> will not be tolerated. Calling for <a href="https://www.reuters.com/article/idUSKCN1SN1Z2/">sanctions</a> against Israel will not be tolerated. (The German parliament officially condemned the international Boycott, Divestment, Sanctions, or BDS, movement as antisemitic in 2019.) Comparing Israel’s violence to <a href="https://www.thedailybeast.com/new-yorker-writer-masha-gessens-prize-in-jeopardy-after-comparing-palestinians-to-jews-under-nazi-occupation">Nazi violence</a> will not be tolerated. </p>
<p>Anti-Zionism will be <a href="https://www.opendemocracy.net/en/north-africa-west-asia/why-germany-gets-it-wrong-about-antisemitism-and-palestine/">interpreted as antisemitism</a>. Pro-Palestinian migrants may be <a href="https://www.aljazeera.com/opinions/2024/1/7/why-is-germany-so-viciously-anti-palestinian">rejected for citizenship</a>. (In the German state of Saxony-Anhalt, <a href="https://www.washingtonpost.com/world/2023/12/06/germany-israel-citizenship-requirement/">prospective citizens must commit in writing</a> to “the right of the State of Israel to exist”.)</p>
<p>Importantly, this is not necessarily an automatic result of Germany’s genocidal, antisemitic Nazi past. Rather, it is a result of Germany’s current belief that its genocidal, antisemitic Nazi past implies future unwavering support for Israel. </p>
<p>As <a href="https://www.dw.com/en/israel-and-germanys-reason-of-state-its-complicated/a-67094861">Chancellor Olaf Scholz</a> told the Bundestag:</p>
<blockquote>
<p>At this moment, there is only one place for Germany. That is the side of Israel. </p>
</blockquote>
<p>This is not merely moral support. German arms shipments to Israel have <a href="https://www.reuters.com/world/europe/german-military-exports-israel-up-nearly-10-fold-berlin-fast-tracks-permits-2023-11-08/">increased tenfold</a> to support the current war.</p>
<p>It is worth noting, however, that a different understanding of the moral burden of the Holocaust is possible. It might equally be said that Germany has a special responsibility to stridently oppose ethnic cleansing, war crimes and genocide wherever they occur.</p>
<p>Relatedly, when Germany supported the NATO war against Serbia in the late 1990s, the German Green leader <a href="https://www.washingtonpost.com/archive/politics/1999/04/11/pacifist-german-turns-hawkish-on-serbs/266dea1b-43fd-409d-ba09-d0aeab0ffe6b/">Joschka Fischer cited</a> his generation’s lessons from World War II to explain why it was important to stand against Milosevic’s willingness “to fight a war against the existence of a whole people”.</p>
<h2>Enough?</h2>
<p>If Germany continues to use the Gaza war as an opportunity for a domestic <a href="https://www.washingtonpost.com/world/2023/12/22/germany-antisemitism-israel-gaza-arts-censorship/">culture war</a> against academics and artists who cross the self-imposed red lines of German debate, unwarranted sackings like that of Ghassan Hage will continue. </p>
<p>If, however, Germany takes the view it is obliged to denounce ethnic cleansing and genocidal violence without fear or favour, it might find cause to listen and learn from <a href="https://taz.de/Genozidforscher-ueber-Gaza/!5984116/">those who have warned</a> Israel’s war against the Palestinians of Gaza bears the hallmarks of previous crimes against humanity.</p>
<p>Sharp words from German government officials about the renewed Israeli campaign in Rafah suggest this might be possible. The German Foreign Minister Annalena Baerbock <a href="https://twitter.com/GermanyDiplo/status/1756283599785988470">warned</a> recently “the people of Gaza cannot vanish into thin air”.</p>
<p>After, <a href="https://www.reuters.com/world/middle-east/gaza-death-toll-climbs-28064-palestinians-killed-67611-injured-since-oct-7-gaza-2024-02-10/">at last count</a>, “at least” 28,000 dead in the streets of Gaza, perhaps some in Germany might be starting to think enough is enough.</p><img src="https://counter.theconversation.com/content/223329/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matt Fitzpatrick receives funding from the Australian Research Council. </span></em></p>Ghassan Hage has been sacked by Germany’s prestigious Max Planck Foundation due to his trenchant criticism of Israel’s war. It’s just the latest in an ongoing culture war in Germany.Matt Fitzpatrick, Professor in International History, Flinders UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2213302024-01-18T16:48:52Z2024-01-18T16:48:52ZHow AI threatens free speech – and what must be done about it<figure><img src="https://images.theconversation.com/files/569817/original/file-20240117-21-c4rmno.jpg?ixlib=rb-1.1.0&rect=162%2C108%2C5835%2C3899&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/girl-pointing-finger-on-screen-smartphone-780955027">Dragana Gordic/Shutterstock</a></span></figcaption></figure><p>Headlines about the threats of artificial intelligence (AI) tend to be full of <a href="https://www.nytimes.com/2023/11/21/us/politics/ai-drones-war-law.html">killer robots</a>, or fears that when they’re not on killing sprees, these same robots will be <a href="https://www.forbes.com/sites/elijahclark/2023/08/18/unveiling-the-dark-side-of-artificial-intelligence-in-the-job-market/?sh=151014456652">hoovering up human jobs</a>. But a serious danger which gets surprisingly little media attention is the impact these new technologies are likely to have on freedom of expression. And, in particular, how they’re able to undermine some of the most foundational legal tenets that protect free speech.</p>
<p>Every time a new communications technology sweeps through society, it disrupts the balance that has previously been struck between social stability and <a href="https://www.hrw.org/news/2016/03/25/digital-disruption-human-rights">individual liberty</a>. </p>
<p>We’re currently living through this. Social media has made new forms of community networking, surveillance and public exposure possible, which have led to increased <a href="https://www.forumdisuguaglianzediversita.org/wp-content/uploads/2021/05/Social-Media-Political-Polarization-and-Political-Disinformation-Literature-Review.x28591.pdf">political polarisation</a>, the rise of global populism and an epidemic of <a href="https://www.sciencedirect.com/science/article/pii/S1054139X20301075">online harassment and bullying</a>. </p>
<p>Amid all this, free speech has become a totemic issue in <a href="https://www.jstor.org/stable/j.ctv199td7w">the culture wars</a>, with its status both boosted and threatened by the societal forces unleashed by social media platforms. </p>
<p>Yet free speech debates tend to be caught up with arguments about “cancel culture” and the “woke” mindset. This risks overlooking the impact technology is having on how freedom of expression laws actually work. </p>
<p>In particular, the way that AI gives governments and tech companies the ability to censor expression with increasing ease, and at great scale and speed. This is a serious issue that I explore in my new book, <a href="https://www.bloomsbury.com/uk/future-of-language-9781350278851/">The Future of Language</a>. </p>
<h2>The delicate balance of free speech</h2>
<p>Some of the most important protections for <a href="https://www.coe.int/en/web/human-rights-convention/expression">free speech in liberal democracies</a> such as the UK and the US rely on technicalities in how the law responds to the real-life actions of everyday citizens.</p>
<p>A key element of the current system relies on the fact that we, as autonomous individuals, have the unique ability to transform our ideas into words and communicate these to others. This may seem a rather unremarkable point. But the way the law currently works is based on this simple assumption about human social behaviour, and it’s something that AI threatens to undermine. </p>
<p>Free speech protections in many liberal societies rule against the use of <a href="https://dictionary.law.com/Default.aspx?selected=1606">“prior restraint”</a> – that is, blocking an utterance before it’s been expressed. </p>
<p>The government, for instance, should not be able to prevent a newspaper from publishing a particular story, although it can prosecute it for doing so after publication if it thinks the story is breaking any laws. The use of prior restraint is already widespread in countries such as <a href="https://www.cecc.gov/prior-restraints">China</a>, which have very different attitudes to the regulation of expression. </p>
<p>This is significant because, despite what tech libertarians such as <a href="https://www.theguardian.com/technology/2022/apr/14/how-free-speech-absolutist-elon-musk-would-transform-twitter">Elon Musk may assert</a>, no society in the world allows for absolute freedom of speech. There’s always a balance to be struck between protecting people from the real harm that language can cause (for example by defaming them), and safeguarding people’s right to express conflicting opinions and criticise those in power. Finding the right balance between these is one of the most challenging decisions a society is faced with. </p>
<h2>AI and prior restraint</h2>
<p>Given that so much of our communication today is mediated by technology, it is now extremely easy for AI assistance to be used to enact prior restraint, and to do so at great speed and massive scale. This would create circumstances in which that basic human ability to turn ideas into speech could be compromised, as and when a government (or social media exec) wishes it to be.</p>
<p>The UK’s recent <a href="https://www.legislation.gov.uk/ukpga/2023/50/enacted">Online Safety Act</a>, for instance, as well plans in the US and Europe to use <a href="https://www.liberties.eu/en/stories/uploa-filter-back-eu-2020/18938">“upload filtering”</a> (algorithmic tools for blocking certain content from being uploaded) as a way of screening for offensive or illegal posts, all encourage social media platforms to use AI to censor at source.</p>
<p>The rationale given for this is a practical one. With such a huge quantity of content being uploaded every minute of every day, it becomes extremely challenging for teams of humans to monitor everything. AI is a fast and far less expensive alternative. </p>
<p>But it’s also automated, unable to bring real-life experience to bear, and its decisions are rarely subject to public scrutiny. The consequences of this are that AI-driven filters can often lean towards censoring content which is neither illegal or offensive. </p>
<figure class="align-center ">
<img alt="Microphone on a desk in front of the classroom." src="https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/569819/original/file-20240117-25-y6yq8b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Technology and free speech have long clashed.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/microphone-on-desk-front-classroom-educational-1446870362">Mind Pro Studio/Shutterstock</a></span>
</figcaption>
</figure>
<p>Free speech as we understand it today relies on specific legal processes of protection that have developed over centuries. It’s not an abstract idea, but one grounded in very particular social and legal practices. </p>
<p>Legislation that encourages content regulation by automation effectively dismisses these processes as technicalities. In doing so, it risks jeopardising the entire institution of free speech.</p>
<p>Free speech will always be an idea sustained by ongoing debate. There’s never a settled formula for defining what should be outlawed and what not. This is why determining what counts as acceptable and unacceptable needs to take place in open society and be subject to appeal.</p>
<p>While there are indications that some governments are beginning to <a href="https://www.opensocietyfoundations.org/newsroom/open-society-and-other-funders-launch-new-initiative-to-ensure-ai-advances-the-public-interest">acknowledge this</a> in planning for the future of AI, it needs to be centre stage in all such plans. </p>
<p>Whatever role AI may play in helping to monitor online content, it mustn’t constrain our ability to argue among ourselves about what sort of society we’re trying to create.</p><img src="https://counter.theconversation.com/content/221330/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Philip Seargeant does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Content moderation by automated systems could be a form of prior restraint.Philip Seargeant, Senior Lecturer in Applied Linguistics, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2195662023-12-11T19:23:30Z2023-12-11T19:23:30ZWhy university presidents find it hard to punish advocating genocide − college free speech codes are both more and less protective than the First Amendment<figure><img src="https://images.theconversation.com/files/564911/original/file-20231211-30-y3c9sh.jpeg?ixlib=rb-1.1.0&rect=7%2C14%2C4727%2C3137&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Harvard President Claudine Gay, University of Pennsylvania then-President Elizabeth Magill and MIT President Sally Kornbluth testify before Congress on Dec. 5, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/dr-claudine-gay-president-of-harvard-university-liz-magill-news-photo/1833208996?adppopup=true">Kevin Dietsch/Getty Images</a></span></figcaption></figure><p>If a student were to walk off the Harvard campus and onto a street in the city of Cambridge, Massachusetts, and argue for the genocide of Jews, the U.S. Constitution would bar prosecuting her for hate speech.</p>
<p>If the same student left her perch on the sidewalk and returned to the Harvard campus to continue the rant, the student could be silenced by campus police and either suspended or expelled from the university under <a href="https://www.hsph.harvard.edu/student-handbook/">the school’s code of conduct</a>. </p>
<p>The same is true for many other campuses across the nation, including the University of Pennsylvania and MIT. Private colleges and universities have speech codes that allow them to punish certain speech. But in their Dec. 6, 2023, testimony before Congress <a href="https://www.nytimes.com/2023/12/10/opinion/college-presidents-antisemitism.html">about antisemitism on their campuses</a>, Presidents Elizabeth Magill of UPenn, Sally Kornbluth of MIT and Claudine Gay of Harvard failed to clearly state that, when pressed by U. S. Rep. Elise Stefanik to explain what would happen if someone on campus called for the genocide of Jews. Magill <a href="https://thehill.com/homenews/education/4352383-upenn-board-of-trustees-chairman-resigns-following-university-presidents-exit/">just resigned</a>, in large part over the furor that followed.</p>
<p>I taught undergraduates argumentation and First Amendment law for 15 years at Syracuse University and have written a user’s guide on the First Amendment: <a href="https://press.uchicago.edu/ucp/books/book/distributed/W/bo156864042.html">When Freedom Speaks</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/564929/original/file-20231211-26-x3hctl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large crowd of protestors, some holding signs." src="https://images.theconversation.com/files/564929/original/file-20231211-26-x3hctl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564929/original/file-20231211-26-x3hctl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564929/original/file-20231211-26-x3hctl.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564929/original/file-20231211-26-x3hctl.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564929/original/file-20231211-26-x3hctl.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564929/original/file-20231211-26-x3hctl.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564929/original/file-20231211-26-x3hctl.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Palestinian supporters gather for a protest at Columbia University on Oct. 12, 2023, in New York.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/IsraelPalestiniansProtestsExplainer/7fbba5a27e194932a0ab92fcb991ec80/photo?Query=university%20hamas%20%20palestinian&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=145&currentItemNo=17">AP Photo/Yuki Iwamura, File</a></span>
</figcaption>
</figure>
<p>I am surprised by the presidents’ failure <a href="https://www.youtube.com/watch?v=5VtAZBvmzcQ">to respond clearly</a> to Stefanik’s question. The primary purpose of schools is to educate. Private colleges and universities are governed by codes of conduct that support and carry out that objective. </p>
<p>Although private colleges and universities can and often do attempt to recreate the <a href="https://constitution.congress.gov/browse/amendment-1/">broad boundaries of protected speech provided by the First Amendment</a>, those boundaries can legally be narrowed by their educational mission. They do this because hatred can poison a healthy learning environment and impair the ability of targeted students to participate fully. </p>
<p>Public colleges generally must apply broader constitutional standards regarding speech on campus. But campus codes at private colleges and universities seek to resolve the conflict between the right to speak freely and the educational mission of the institution. The ham-handed and over-legalistic responses by the three university presidents show how this attempt to balance speech and safety can create confusion, conflict and the opportunity for selective enforcement decisions based on academic fashion, not values of free and open debate.</p>
<h2>Private restrictions; public free speech</h2>
<p>Words matter. As long as the words don’t include a realistic threat that sticks, stones and worse will soon follow, the <a href="https://constitution.congress.gov/browse/amendment-1/">First Amendment</a> protects them from repression by the government. </p>
<p>Constitutionally speaking, ideas – whether they be mainstream or scorned – <a href="https://firstamendment.mtsu.edu/article/incitement-to-imminent-lawless-action/">that do not incite violence</a> or <a href="https://constitution.congress.gov/browse/essay/amdt1-7-5-6/ALDE_00013807/">intentionally terrorize the target</a> are permissible speech. The First Amendment requires such ideas be available to the public to examine and criticize. Hyperbolic hate speech, even speech that endorses genocide or calls for <a href="https://www.americanprogress.org/article/white-supremacy-returned-mainstream-politics/">forced racial and ethnic division</a>, cannot be criminally prosecuted by states or the federal government. Those words might offend and frighten, but they are often part and parcel of emotionally charged political speech.</p>
<p>Harvard provides an example of how campus conduct codes restrict speech that would normally be allowed under the First Amendment. The <a href="https://www.hsph.harvard.edu/student-handbook/guidelines-for-open-debate-protest-and-dissent/">student handbook</a> states that the free exchange of ideas must proceed within the “bounds of reasoned dissent.” The First Amendment does not demand any such limitation on speech, and state and federal governments are constitutionally prohibited from establishing or enforcing any such commitments. </p>
<p><a href="https://catalog.upenn.edu/pennbook/code-of-student-conduct/">The code of conduct at the University of Pennsylvania</a> requires the members of its community to “respect the health and safety of others.” Under the First Amendment, though, state and federal governments are constitutionally prohibited from requiring such limits.</p>
<p><a href="https://policies.mit.edu/policies-procedures/90-relations-and-responsibilities-within-mit-community/95-harassment">MIT prohibits harassment</a>, defined as “public and personal tirades.” The First Amendment provides no such moral guidelines. It does not distinguish between truth or lies, myth or reality, virtue or villainy. It only creates a space to speak where the government has limited power to interfere.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/564932/original/file-20231211-27-iji2rm.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot of a letter announcing the resignation of UPenn President Liz Magill." src="https://images.theconversation.com/files/564932/original/file-20231211-27-iji2rm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/564932/original/file-20231211-27-iji2rm.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=301&fit=crop&dpr=1 600w, https://images.theconversation.com/files/564932/original/file-20231211-27-iji2rm.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=301&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/564932/original/file-20231211-27-iji2rm.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=301&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/564932/original/file-20231211-27-iji2rm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=378&fit=crop&dpr=1 754w, https://images.theconversation.com/files/564932/original/file-20231211-27-iji2rm.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=378&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/564932/original/file-20231211-27-iji2rm.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=378&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Dec. 9, 2023, announcement of President Elizabeth Magill’s resignation, by Scott L. Bok, chair of the Penn Board of Trustees.</span>
<span class="attribution"><a class="source" href="https://penntoday.upenn.edu/announcements/message-from-scott-bok">UPenn website</a></span>
</figcaption>
</figure>
<h2>Selective enforcement?</h2>
<p>Yet despite universities’ codes of conduct, there is a growing perception – supported by the highly technical and qualified answers given at the hearing by the college presidents – that they and other colleges and universities are <a href="https://www.nytimes.com/2023/12/08/opinion/antisemitism-college-free-speech.html">selective in their application of conduct codes</a> and use them to promote a <a href="https://www.cnn.com/2023/12/08/opinions/israel-palestine-antisemitism-american-universities-zakaria/index.html">political agenda</a>. </p>
<p>In situations involving race and gender, schools have been quick to warn against, rein in or punish speech that administrators find offensive. In 2017, <a href="https://www.thecrimson.com/article/2017/6/5/2021-offers-rescinded-memes/">Harvard rescinded admission offers to 10 students</a> who posted sexually explicit memes, some targeting minority groups. Stefanik, <a href="https://www.wsj.com/articles/harvard-bans-cisheterosexism-but-shrugs-at-antisemitism-95a2c5d7">in a Wall Street Journal op-ed</a>, wrote that in 2022, as part of mandatory anti-bias training, Harvard warned its undergraduate students that <a href="https://www.wsj.com/articles/harvard-bans-cisheterosexism-but-shrugs-at-antisemitism-95a2c5d7">cisheterosexism, fatphobia and using the wrong pronouns was abusive</a>. </p>
<p>In 2016, several colleges issued proposed guidelines regarding <a href="https://www.washingtonpost.com/news/grade-point/wp/2016/10/28/enjoy-the-holiday-without-being-extremely-offensive-some-colleges-advise-students-on-halloween-costumes/">offensive Halloween costumes</a>. In 2013, two students at Lewis & Clark College were charged with discrimination or harassment for <a href="https://www.thefire.org/cases/lewis-clark-college-two-students-guilty-harassment-racial-jokes-party">hosting a private, racially themed party</a>. In 2006, the University of Wisconsin-La Crosse attempted to <a href="https://www.thefire.org/cases/university-wisconsin-la-crosse-censorship-student-magazine">limit printing of a satirical article</a> deemed by the administration to threaten the recruitment and retention of students from underrepresented groups, although that decision was later reversed. </p>
<p>In contrast, <a href="https://www.theatlantic.com/ideas/archive/2023/12/harvard-mit-upenn-free-speech-congressional-hearings/676278/">Jewish students at the three universities</a> whose presidents testified in Congress accuse their schools of failing to <a href="https://news.yahoo.com/mit-faces-backlash-not-expelling-155058180.html">provide a clear response to alleged repeated harassment</a> of Jewish students and staff members. </p>
<h2>Advocates for campus free speech</h2>
<p>But rather than punishing certain speech, others call for colleges and universities <a href="https://www.thefire.org/news/fire-congress-university-presidents-dont-expand-censorship-end-it">to hold fast to the principle underlying First Amendment freedoms</a>: More speech, not less, leads to a healthy democracy. </p>
<p>Proponents of robust speech protections on campus argue that codes that confine speech to polite dialogue <a href="https://www.thefire.org/news/fire-congress-university-presidents-dont-expand-censorship-end-it">stifle the ability to learn</a> about <a href="https://www.thefire.org/news/blogs/eternally-radical-idea/coronavirus-and-failure-marketplace-ideas">different perspectives and truths</a>, which sometimes only find expression in heated diatribes. Instead, they propose that, in addition to clear condemnation, educational institutions should respond to hateful speech with <a href="https://campusfreespeechguide.pen.org/pen-principles/">countermessaging and dialogue as well as support for targeted individuals and groups</a>. </p>
<p>Many of today’s students have little understanding or respect for a campus – and by inference, a democracy – where all ideas are subject to scrutiny, particularly those that are loathsome to them. To me, <a href="https://buckleyinstitute.com/annual-surveys/">the data is alarming</a>: </p>
<ul>
<li>46% of students support shout-downs of speakers with whom they disagree.</li>
<li>51% of students believe some topics should be banned from being debated on campus.</li>
<li>45% of students believe that physical violence is justified in response to hate speech.</li>
</ul>
<p><a href="https://pen.org/about-us/">PEN America</a>, a 100-year-old organization dedicated to celebrating and protecting creative expression, urges colleges and universities to use caution when attempting to balance speech with safety. </p>
<p>Others warn that codes of conduct <a href="https://www.thefire.org/news/aclu-executive-director-delivers-blistering-critique-campus-speech-codes">offer a false sense of safety to targeted students</a>. Their point: Unless such codes are carefully crafted and applied only to speech that creates physical harm or terror, they will succeed mainly in <a href="https://www.cnet.com/tech/services-and-software/twitter-hate-speech-and-the-costs-of-keeping-quiet/">driving hatred underground into echo chambers</a>, where it tends to become more extreme and more dangerous.</p>
<p><em>This article was updated to clarify that the example from the University of Wisconsin occurred at the La Crosse campus.</em></p><img src="https://counter.theconversation.com/content/219566/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lynn Greenky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>University codes of conduct support their mission to educate. But it’s not easy to balance those codes with the values of free speech, as the resignation of a prominent university president shows.Lynn Greenky, Professor Emeritus of Communication and Rhetorical Studies, Syracuse UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2177602023-11-27T13:41:34Z2023-11-27T13:41:34ZSupreme Court to consider giving First Amendment protections to social media posts<figure><img src="https://images.theconversation.com/files/560784/original/file-20231121-4426-i5zrwh.jpg?ixlib=rb-1.1.0&rect=0%2C22%2C3706%2C3084&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Citizens have sometimes been surprised to find public officials blocking people from viewing their social media feeds.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/businessman-standing-in-front-of-a-big-smart-royalty-free-illustration/1025098142">alashi/DigitalVision Vectors via Getty Images</a></span></figcaption></figure><p>The First Amendment does not protect messages posted on social media platforms. </p>
<p>The companies that own the platforms can – and do – remove, promote or limit the distribution of any posts <a href="https://www.freedomforum.org/free-speech-on-social-media/">according to corporate policies</a>. But all that might soon change.</p>
<p>The Supreme Court has agreed to <a href="https://www.nytimes.com/2023/10/31/opinion/social-media-supreme-court-democracy.html">hear five cases</a> during this current term, which ends in June 2024, that collectively give the court the opportunity to reexamine the nature of content moderation – the rules governing discussions on social media platforms such as Facebook and X, formerly known as Twitter – and the constitutional limitations on the government to affect speech on the platforms.</p>
<p>Content moderation, whether done manually by company employees or automatically by a platform’s software and algorithms, affects what viewers can see on a digital media page. Messages that are promoted garner greater viewership and greater interaction; those that are deprioritized or removed will obviously receive less attention. Content moderation policies reflect decisions by digital platforms about the relative value of posted messages.</p>
<p>As an attorney, <a href="https://lynngreenky.com/">professor</a> and author of a book about the <a href="https://press.uchicago.edu/ucp/books/book/distributed/W/bo156864042.html">boundaries of the First Amendment</a>, I believe that the constitutional challenges presented by these cases will give the court the occasion to advise government, corporations and users of interactive technologies what their rights and responsibilities are as communications technologies continue to evolve.</p>
<h2>Public forums</h2>
<p>In late October 2023, the Supreme Court heard oral arguments on two related cases in which both sets of plaintiffs argued that elected officials who use their social media accounts either exclusively or partially to promote their politics and policies <a href="https://www.nytimes.com/2023/04/24/us/elected-officials-social-media-supreme-court.html">cannot constitutionally block constituents</a> from posting comments on the officials’ pages.</p>
<p>In one of those cases, <a href="https://www.oyez.org/cases/2023/22-324">O’Connor-Radcliff v. Garnier</a>, two school board members from the Poway Unified School District in California blocked a set of parents – who frequently posted repetitive and critical comments on the board members’ Facebook and Twitter accounts – from viewing the board members’ accounts. </p>
<p>In the other case heard in October, <a href="https://www.oyez.org/cases/2023/22-611">Lindke v. Freed</a>, the city manager of Port Huron, Michigan, apparently angered by critical comments about a posted picture, blocked a constituent from viewing or posting on the manager’s Facebook page. </p>
<p>Courts have long held that public spaces, like parks and sidewalks, are public forums, which must <a href="https://www.oyez.org/cases/1900-1940/307us496">remain open to free and robust conversation and debate</a>, subject only to neutral rules <a href="https://firstamendment.mtsu.edu/article/time-place-and-manner-restrictions/">unrelated to the content of the speech expressed</a>. The silenced constituents in the current cases insisted that in a world where a lot of public discussion is conducted in interactive social media, digital spaces used by government representatives for <a href="https://www.nytimes.com/2023/04/24/us/elected-officials-social-media-supreme-court.html">communicating with their constituents</a> are also public forums and should be subject to the same First Amendment rules as their physical counterparts.</p>
<p>If the Supreme Court rules that public forums can be both physical and virtual, government officials will not be able to arbitrarily block users from viewing and responding to their content or remove constituent comments with which they disagree. On the other hand, if the Supreme Court rejects the plaintiffs’ argument, the only recourse for frustrated constituents will be to create competing social media spaces where they can criticize and argue at will.</p>
<h2>Content moderation as editorial choices</h2>
<p>Two other cases – <a href="https://www.oyez.org/cases/2023/22-555">NetChoice LLC v. Paxton</a> and <a href="https://www.oyez.org/cases/2023/22-277">Moody v. NetChoice LLC</a> – also relate to the question of how the government should regulate online discussions. <a href="https://perma.cc/YHK2-WVWS">Florida</a> and <a href="https://perma.cc/B2WU-M3CK">Texas</a> have both passed laws that modify the internal policies and algorithms of large social media platforms by regulating how the platforms can promote, demote or remove posts.</p>
<p>NetChoice, a tech industry trade group representing a <a href="https://netchoice.org/about/#association-members">wide range of social media platforms</a> and online businesses, including Meta, Amazon, Airbnb and TikTok, contends that the platforms are not public forums. The group says that the Florida and Texas legislation unconstitutionally restricts the social media companies’ First Amendment right to make their own <a href="https://www.oyez.org/cases/1973/73-797">editorial choices</a> about what appears on their sites.</p>
<p>In addition, NetChoice alleges that by limiting Facebook’s or X’s ability to rank, repress or even remove speech – whether manually or with algorithms – the Texas and Florida laws amount to government requirements that the <a href="https://www.oyez.org/cases/1994/94-749">platforms host speech they didn’t want to</a>, which is also unconstitutional. </p>
<p>NetChoice is asking the Supreme Court to rule the laws unconstitutional so that the platforms remain free to make their own independent choices regarding when, how and whether posts will remain available for view and comment.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a military uniform stands at a lectern looking out at a group of people sitting in chairs." src="https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/560786/original/file-20231121-15-1e40j1.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">In 2021, U.S. Surgeon General Vivek Murthy declared misinformation on social media, especially about COVID-19 and vaccines, to be a public health threat.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/surgeon-general-vivek-murthy-and-white-house-press-news-photo/1328901388">Chip Somodevilla/Getty Images</a></span>
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<h2>Censorship</h2>
<p>In an effort to reduce harmful speech that proliferates across the internet – speech that supports criminal and terrorist activity as well as misinformation and disinformation – the federal government has engaged in wide-ranging discussions with internet companies about their <a href="https://www.nytimes.com/2023/07/04/business/federal-judge-biden-social-media.html">content moderation policies</a>.</p>
<p>To that end, the Biden administration has regularly advised – <a href="https://www.nytimes.com/2023/07/04/business/federal-judge-biden-social-media.html">some say strong-armed</a> – social media platforms to deprioritize or remove posts the government had flagged as misleading, false or harmful. Some of the posts <a href="https://www.nytimes.com/2023/07/04/business/federal-judge-biden-social-media.html">related to misinformation</a> about COVID-19 vaccines or promoted human trafficking. On several occasions, the officials would suggest that platform companies ban a user who posted the material from making further posts. Sometimes, the corporate representatives themselves would ask the government what to do with a particular post.</p>
<p>While the public might be generally aware that content moderation policies exist, people are not always aware of how those policies affect the information to which they are exposed. Specifically, audiences have no way to measure how content moderation policies affect the marketplace of ideas or influence debate and discussion about public issues.</p>
<p>In <a href="https://www.scotusblog.com/case-files/cases/missouri-v-biden/">Missouri v. Biden</a>, the plaintiffs argue that government efforts to persuade social media platforms to publish or remove posts were so relentless and invasive that the moderation policies no longer reflected the companies’ own editorial choices. Rather, they argue, the policies were in reality government directives that effectively silenced – <a href="https://www.oyez.org/cases/1970/1873">and unconstitutionally censored</a> – speakers with whom the government disagreed. </p>
<p>The court’s decision in this case could have wide-ranging effects on the manner and methods of government efforts to influence the information that guides the public’s debates and decisions.</p><img src="https://counter.theconversation.com/content/217760/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lynn Greenky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court will hear five cases this term that will examine the nature of online discussion spaces run by social media platforms.Lynn Greenky, Professor Emeritus of Communication and Rhetorical Studies, Syracuse UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2170852023-11-15T19:04:35Z2023-11-15T19:04:35ZHow a new identity-focused ideology has trapped the left and undermined social justice<figure><img src="https://images.theconversation.com/files/559473/original/file-20231114-19-zpi3vf.jpg?ixlib=rb-1.1.0&rect=4%2C0%2C2986%2C1500&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Fizkes/Shutterstock</span></span></figcaption></figure><p>Yascha Mounk’s new book, <a href="https://www.penguinrandomhouse.com/books/712961/the-identity-trap-by-yascha-mounk/">The Identity Trap: A Story of Ideas and Power in Our Time</a>, explores a radical progressive ideology that has been taking the world by storm. From its unlikely beginnings in esoteric scholarly theories and niche online communities, this new worldview is reshaping our lives, from the highest echelons of political power to the local school classroom. </p>
<p>Mounk argues that the new identity-focused ideology is not simply an extension of prior social justice philosophies and civil rights movements; on the contrary, it rejects both. He contends that those committed to social justice must resist this new ideology’s powerful temptations – its <em>trap</em>. </p>
<hr>
<p><em>Review: The Identity Trap: A Story of Ideas and Power in Our Time – Yascha Mounk (Allen Lane)</em></p>
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<p>While The Identity Trap focuses on the political left, Mounk’s two previous books – <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674237681">The People vs. Democracy</a> (2018) and <a href="https://www.penguinrandomhouse.com/books/665275/the-great-experiment-by-yascha-mounk/">The Great Experiment</a> (2022) – considered the dangers of the illiberal right. </p>
<p>His critique of identity-focused progressivism thus comes from a place that shares many of its values. He aims to persuade readers who are naturally sympathetic to social justice causes that those causes demand a rejection, not an embrace, of identity-focused politics.</p>
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<a href="https://images.theconversation.com/files/558992/original/file-20231113-19-49j46h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/558992/original/file-20231113-19-49j46h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/558992/original/file-20231113-19-49j46h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=923&fit=crop&dpr=1 600w, https://images.theconversation.com/files/558992/original/file-20231113-19-49j46h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=923&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/558992/original/file-20231113-19-49j46h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=923&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/558992/original/file-20231113-19-49j46h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1160&fit=crop&dpr=1 754w, https://images.theconversation.com/files/558992/original/file-20231113-19-49j46h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1160&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/558992/original/file-20231113-19-49j46h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1160&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>A <em>tour de force</em> of intelligent argument, The Identity Trap covers a lot of ground. Mounk explores the intellectual history of the scholarly theories that support this new worldview. He interrogates its plausibility, explains the shifts in social media and news media that have amplified it, clarifies its key commitments and raises the alarm on its likely consequences.</p>
<p>To critique this perspective, Mounk must first name it. He settles on “identity synthesis”, in an attempt to avoid the more common but contentious term “identity politics”. His term refers to its synthesis of a range of intellectual traditions, including <a href="https://plato.stanford.edu/entries/postmodernism/">postmodernism</a>, <a href="https://www.rep.routledge.com/articles/thematic/postcolonialism/v-1">postcolonialism</a> and <a href="https://www.britannica.com/topic/critical-race-theory">critical race theory</a>. These theories focus on ascriptive categories such as race, gender and sexual orientation. </p>
<p>One question that immediately arises is why the identity synthesis focuses heavily on some types of marginalised identities and not others. The lack of focus on <em>class</em> – that is, hierarchies built on wealth, income, education and closeness to elite institutions – is particularly surprising. After all, economic marginalisation has baked-in inequalities and power differentials. </p>
<p>As Mounk tells it, the Soviet Union’s moral and political collapse saw the concept of class struggle fall out of fashion on the scholarly left, empowering cultural concerns to take centre stage.</p>
<p>There is also a curiosity here that Mounk doesn’t dwell on, which is why this worldview requires naming at all. Most political ideologies – liberalism, socialism, libertarianism, conservatism – are reasonably well defined and understood. This is less true of the worldview that concerns Mounk. The vague term “<a href="https://en.wikipedia.org/wiki/Woke">woke</a>”, which has its origins in African American vernacular, was once used to refer to those who had woken up to their world’s systemic inequalities. But the term is now mainly used in a <a href="https://www.merriam-webster.com/dictionary/woke">pejorative sense</a>.</p>
<p>This has given rise to the perplexing phenomenon of an ideology that dares not speak its name. Perhaps those who think of contemporary progressivism as simply <em>the truth</em> are reluctant to name it as a specific position and turn it into an “ism”.</p>
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Read more:
<a href="https://theconversation.com/where-woke-came-from-and-why-marketers-should-think-twice-before-jumping-on-the-social-activism-bandwagon-122713">Where 'woke' came from and why marketers should think twice before jumping on the social activism bandwagon</a>
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<h2>Core themes</h2>
<p>Capturing a nestled group of moral commitments, political views, theoretical bases, activist strategies and online practices, Mounk distils the identity synthesis into seven core themes.</p>
<ol>
<li><p><em>Scepticism about objective truth</em>: a postmodern wariness about “grand narratives” that extends to scepticism about scientific claims and universal values.</p></li>
<li><p><em>Discourse analysis for political ends</em>: a critique of speech and language to overcome oppressive structures.</p></li>
<li><p><em>Doubling down on identity</em>: a strategy of embracing rather than dismantling identities.</p></li>
<li><p><em>Proud pessimism</em>: the view that no genuine civil rights progress has been made, and that oppressive structures will always exist.</p></li>
<li><p><em>Identity-sensitive legislation</em>: the failure of “equal treatment” requires policies that explicitly favour marginalised groups.</p></li>
<li><p><em>The imperative of intersectionality</em>: effectively acting against one form of oppression requires responding to all its forms.</p></li>
<li><p><em>Standpoint theory</em>: marginalised groups have access to truths that cannot be communicated to outsiders.</p></li>
</ol>
<p>There is always a worry when commentators take it upon themselves to outline an opposing view. There are dangers of misunderstanding and simplification, and of caricature and straw-man arguments. But Mounk does his best to document the prevalence of these themes. </p>
<p>Setting out core concepts might also prove useful in allowing progressives to clarify where they depart from his characterisation.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/do-universal-values-exist-a-philosopher-says-yes-and-takes-aim-at-identity-politics-but-not-all-of-his-arguments-are-convincing-208014">Do universal values exist? A philosopher says yes, and takes aim at identity politics – but not all of his arguments are convincing</a>
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<h2>The ‘Black’ classroom</h2>
<p>Many people are committed to the identity synthesis. Many of them wield considerable power. How did this happen?</p>
<p>Mounk explains how the identity synthesis grew out of scholarly theories taught at many US universities. Graduates of these elite institutions have carried their social justice commitments – and the determination to stand up for them – into the corporations, media, NGOs and public service organisations that hired them. The result has been the spread of a wide array of identity-focused practices and policies. </p>
<p>Mounk details many of these practices. His opening anecdote tells the story of a shocked Black mother in Atlanta being told her son must be placed in the “Black” classroom. He sees the incident as part of a wider trend, whereby “educators who believe themselves to be fighting for racial justice are separating children from each other on the basis of their skin color”. Universalism, he argues, is being rejected in the name of “progressive separatism”.</p>
<p>As an ethicist, to me the most shocking of Mounk’s stories was the <a href="https://www.vox.com/future-perfect/22193679/who-should-get-covid-19-vaccine-first-debate-explained">decision-making</a> at the US Advisory Committee on Immunization Practices (ACIP). A public health expert from the <a href="https://www.usa.gov/agencies/centers-for-disease-control-and-prevention">Centers for Disease Control</a> (CDC) argued <em>against</em> the life-saving policy of giving the elderly priority access to COVID vaccines. In the US, the aged are more likely to be white, meaning such prioritisation would disproportionately benefit whites.</p>
<p>The “ethics” of the policy protecting the elderly was therefore given the lowest score. This was despite the fact that the alternative (and initially selected) policy would not only cost more lives overall, but more <em>Black</em> lives. As the CDC knew, elderly Black people were vastly more likely to die from COVID than young Black essential workers.</p>
<p>These accounts provoke in the reader (or in this reader, at least) a sense that <em>this can’t be right. How could things possibly have come to this</em>?</p>
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<h2>Genuine insights</h2>
<p>Mounk provides a detailed and powerful critique of the identity synthesis. Yet his analysis is not entirely unsympathetic. A recurring theme is the way the identity synthesis stemmed from scholarly research that has delivered genuine insights. </p>
<p>For example, Harvard law professor <a href="https://www.newyorker.com/magazine/2021/09/20/the-man-behind-critical-race-theory">Derrick Bell</a> was right to realise that legally enforced school integration had done little to improve Black educational outcomes. And he was insightful in drawing attention to structural racism. Institutions could continue and even exacerbate the effects of historical injustice, despite people’s good intentions. </p>
<p>Similarly, the legal scholar <a href="https://www.law.columbia.edu/faculty/kimberle-w-crenshaw">Kimberlé Crenshaw</a>, who coined the term “critical race theory”, was correct to observe that Black women could be subject to discrimination that neither white women or Black men endured. She termed this phenomenon “<a href="https://en.wikipedia.org/wiki/Intersectionality">intersectionality</a>”.</p>
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<a href="https://images.theconversation.com/files/559215/original/file-20231114-17-sdwidj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/559215/original/file-20231114-17-sdwidj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/559215/original/file-20231114-17-sdwidj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/559215/original/file-20231114-17-sdwidj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/559215/original/file-20231114-17-sdwidj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/559215/original/file-20231114-17-sdwidj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/559215/original/file-20231114-17-sdwidj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/559215/original/file-20231114-17-sdwidj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Black Lives Matter protest, Washington DC, June 2020.</span>
<span class="attribution"><span class="source">Clay Banks/Unsplash</span></span>
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<p>These important findings were, however, taken in worrying directions. Rather than concluding there were two types of racism – direct, intentional racism and structural racism – the latter became understood as the <em>only</em> type of racism. This implausibly tied racism exclusively to oppressive structures, making it impossible to make sense of (for example) hate crimes performed on one marginalised minority by another marginalised minority.</p>
<p>Rather than acknowledging that the law is a necessary but insufficient tool for social change, the conclusion drawn was that laws preferentially treating certain identity groups were necessary. Likewise, the concept of “intersectionality” has been used to justify many questionable claims, far removed from its initial meaning.</p>
<h2>Division and difference</h2>
<p>Mounk argues the identity synthesis is a “trap” because telling people to continually focus on their ascriptive identities prioritises difference, and unequal treatment only exacerbates divisions. </p>
<p>This is especially so when dominant groups, such as white people in the US, are encouraged to see themselves <em>as</em> white. Well established <a href="https://www.bloomsbury.com/au/great-experiment-9781526630155/">social science</a> <a href="https://www.penguin.com.au/books/the-righteous-mind-9780141039169">findings</a> suggest humans are powerfully motivated to favour their own in-group, and there is a chilling capacity for cruelty against designated out-groups.</p>
<p>Recent controversies in parts of the US – especially in elite universities – in the wake of the Hamas attack of October 7 seem to back up Mounk’s concern. </p>
<p>Many people harbour grave and longstanding moral concerns about <a href="https://www.nytimes.com/interactive/2023/10/07/world/middleeast/israel-gaza-maps.html">Israel’s treatment of the Palestinians</a>. There is clear reason to fear the <a href="https://theconversation.com/the-un-is-calling-the-israel-hamas-war-a-graveyard-of-children-in-an-adult-conflict-the-young-are-suffering-most-216633">harrowing civilian cost</a> of the Israeli response. </p>
<p>Basic ethics says there can never be an excuse to <a href="https://www.msn.com/en-us/news/world/pro-palestinian-protester-in-nyc-seen-brandishing-swastika-crowds-chant-f-the-jews-outside-sydney-opera-house/ar-AA1hVKDo">celebrate</a> an atrocity, to <a href="https://nypost.com/2023/10/10/blm-chicago-under-fire-for-pro-palestine-post-featuring-paragliding-terrorist/">applaud</a> the deliberate brutal murder of women and children, or to <a href="https://www.thefp.com/p/why-my-generation-hates-jews">blame</a> an entire ethnic or religious group for a government’s policy. Yet university students and professors have done all these things, invoking the language of postcolonialism and oppression. </p>
<p>Many Jewish progressives were shocked at universities’ reactions to the atrocity. University officials <a href="https://www.thefp.com/p/the-day-the-delusions-died-konstantin-kisin">failed to strongly condemn</a> the Hamas attack. An open letter from a coalition of student groups <a href="https://www.nytimes.com/2023/10/18/us/harvard-students-israel-hamas-doxxing.html">claimed Israel was entirely responsible</a> for the violence, while other student organisations used a <a href="https://nypost.com/2023/10/10/california-student-groups-face-backlash-over-pro-palestine-rally-poster-featuring-paraglider/">picture of the Hamas paraglider</a> on their posters. One entry on the Sidechat app for Harvard read “<a href="https://www.newyorker.com/news/dispatch/the-anguished-fallout-from-a-pro-palestinian-letter-at-harvard">LET EM COOK</a>” next to a Palestinian flag emoji.</p>
<p>Mounk’s analysis suggests these outcomes are all too predictable. According to the identity synthesis, everything must be viewed through the lens of oppressive structures. Once it is decided that Palestinian people are the <a href="https://www.thefp.com/p/john-mcwhorter-barbarism-recast-as-progress">oppressed party</a>, and Israelis the oppressors, even the deliberate murder of Jewish children can seem legitimate. Here, as elsewhere, ideology and in-group dynamics can so easily trump humanity.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/friday-essay-joanna-bourke-the-nsw-arts-minister-and-the-unruly-contradictions-of-cancel-culture-189377">Friday essay: Joanna Bourke, the NSW arts minister, and the unruly contradictions of cancel culture</a>
</strong>
</em>
</p>
<hr>
<h2>Insight without ideology?</h2>
<p>Mounk does not explore the possibility of an identity-focused progressivism that is detached from scholarly theories and the ideological commitments underpinning them. </p>
<p>This detachment would not be an odd phenomenon. After all, most classical liberals would, like Mounk, endorse John Stuart Mill’s arguments for free speech in <a href="https://socialsciences.mcmaster.ca/econ/ugcm/3ll3/mill/liberty.pdf">On Liberty</a>, but would not necessarily subscribe to Mill’s <a href="https://plato.stanford.edu/entries/mill-moral-political/#PerEle">particular version</a> of <a href="https://www.utilitarianism.com/mill1.htm">utilitarianism</a>, which focuses on maximising “higher” forms of happiness. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/559495/original/file-20231115-23-v1p09a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/559495/original/file-20231115-23-v1p09a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/559495/original/file-20231115-23-v1p09a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=781&fit=crop&dpr=1 600w, https://images.theconversation.com/files/559495/original/file-20231115-23-v1p09a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=781&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/559495/original/file-20231115-23-v1p09a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=781&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/559495/original/file-20231115-23-v1p09a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=982&fit=crop&dpr=1 754w, https://images.theconversation.com/files/559495/original/file-20231115-23-v1p09a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=982&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/559495/original/file-20231115-23-v1p09a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=982&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">John Stuart Mill (1806-1873).</span>
<span class="attribution"><span class="source">Public Domain</span></span>
</figcaption>
</figure>
<p>In a similar way, a progressive reader of Mounk’s work might be alarmed at some of the stated themes of the identity synthesis. For example, they might accept scientific facts regarding climate change and vaccine efficacy. They might retain their commitments to universal values such as human rights. They might care about democracy and the rule of law. </p>
<p>Yet they might still harbour enough concern for marginalised groups to support some identity-based practices, such as censoring offensive speech, calling out “white privilege” and cultural appropriation, and demanding race-sensitive policies.</p>
<p>Mounk does not explicitly address this possibility. But his arguments suggest the progressive view sketched above – which wants to be both humanist and identity-focused – is incoherent. He shows that, without the rationales of the identity synthesis, cancellation, censorship, moral intolerance and cynicism about liberal-democratic institutions are far harder to justify ethically. </p>
<p>It is inconsistent to have science when it suits and to decry it as oppressive when it doesn’t. It is hypocritical to uphold democracy, free speech and the rule of law against right-wing authoritarianism and simultaneously believe these principles are merely tools of white supremacy. </p>
<p>Worse still, it is self-defeating to embrace the divisiveness of identity separatism and to somehow expect the age-old problems of in-group tribalism not to emerge – with predictably devastating impacts on vulnerable minorities.</p>
<p>Mounk builds a powerful case that the identity synthesis is indeed a trap. Genuine insights, important realisations and progressive values lure the sympathetic. But too often those insights are developed in extreme and implausible ways, ultimately betraying the very goals they claim to value.</p><img src="https://counter.theconversation.com/content/217085/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Breakey does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Is social justice advanced by focusing on people’s different identities? Or is this worldview ultimately a trap?Hugh Breakey, Deputy Director, Institute for Ethics, Governance & Law. President, Australian Association for Professional & Applied Ethics., Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2168582023-11-03T12:45:03Z2023-11-03T12:45:03ZDefending space for free discussion, empathy and tolerance on campus is a challenge during Israel-Hamas war<figure><img src="https://images.theconversation.com/files/557322/original/file-20231102-21-j4pkfx.jpeg?ixlib=rb-1.1.0&rect=29%2C0%2C3964%2C2638&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Students at UMass Amherst march across campus following a walkout and rally protesting the university's "ties with war profiteers," while also calling for "a ceasefire and end of the blockade on Gaza." </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/amherst-ma-a-student-in-a-classroom-watches-as-umass-news-photo/1745625977?adppopup=true">Jessica Rinaldi/The Boston Globe via Getty Images</a></span></figcaption></figure><p><em>College and university campuses across the U.S. have <a href="https://www.npr.org/2023/10/14/1205809697/israel-gaza-college-campus-protests-statements">seen polarization and unrest</a> since the <a href="https://www.bbc.com/news/world-middle-east-67039975">Israel-Hamas war began</a> with the Hamas attack on Israeli civilians on Oct. 7, 2023. Students and faculty have held protests and rallies, argued on social media and signed statements, some of which have increased mistrust and turmoil on campus. <a href="https://www.washingtonpost.com/education/2023/10/21/dc-colleges-universities-israel-hamas-statements/">Some college leaders have weighed in</a> on the war, which has not necessarily calmed their campuses. At the flagship campus of the University of Massachusetts Amherst, <a href="https://www.umass.edu/jne/member/david-mednicoff">scholar David Mednicoff chairs</a> the Department of Judaic and Near Eastern Studies. He spoke with The Conversation’s senior politics and democracy editor, Naomi Schalit, about how he and his colleagues and university leadership have tried to deal – as an educational institution and a community – with a highly charged situation on campus in which there is pain, anger and anguish on both sides. Mednicoff aims to contribute to an approach he believes central for his community: respectful discussion, listening and seeking understanding, and the chance for open minds and hearts in the middle of conflict.</em> </p>
<p><strong>What has been going on at UMass Amherst during this crisis?</strong></p>
<p>Immediately after the Oct. 7 attack, many Jewish students and community members with ties to Israel felt shocked, scared, confused and worried, and sought support from the university.</p>
<p>Soon after the attack, an active UMass student chapter of Students for Justice in Palestine began demonstrations and other events. With war looming, its members were also feeling upset, scared, confused and worried – very parallel feelings. </p>
<p>Our graduate student union quickly issued <a href="https://www.geouaw.org/solidarity-statement-with-palestine/">a statement, since toned down</a>, that blamed the attacks on Israel’s past policies, and appeared not to acknowledge Israel as a nation. <a href="https://www.nepm.org/regional-news/2023-10-13/disagreement-over-israel-hamas-war-stirred-at-umass-amherst">That statement upset</a> many Israeli and other members of the campus community, some of whom lost people they know on Oct. 7. </p>
<p><a href="https://www.nepm.org/regional-news/2023-10-13/disagreement-over-israel-hamas-war-stirred-at-umass-amherst">We’ve seen public activism from several groups</a> in the university community that decry the unequal power between Israel and the Palestinians, and feel solidarity with Palestinians. On the other side, organizations with connections to Israel held vigils and discussion groups. Some Jews at UMass found pro-Palestinian rallies and specific chants frightening, and possibly antisemitic. Some pro-Palestinian activists were doxxed online, threatened or smeared by right-wing news organizations. Many students in my department expressed feeling unsafe.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/557330/original/file-20231102-25-hva0jc.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A screenshot showing a portion of a statement from UMASS Amherst Chancellor Javier Reyes on the war." src="https://images.theconversation.com/files/557330/original/file-20231102-25-hva0jc.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/557330/original/file-20231102-25-hva0jc.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=454&fit=crop&dpr=1 600w, https://images.theconversation.com/files/557330/original/file-20231102-25-hva0jc.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=454&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/557330/original/file-20231102-25-hva0jc.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=454&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/557330/original/file-20231102-25-hva0jc.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=571&fit=crop&dpr=1 754w, https://images.theconversation.com/files/557330/original/file-20231102-25-hva0jc.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=571&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/557330/original/file-20231102-25-hva0jc.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=571&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">On Oct. 10, UMass Amherst Chancellor Javier Reyes released a statement on the war.</span>
<span class="attribution"><a class="source" href="https://www.umass.edu/news/article/statement-war-middle-east-umass-amherst-chancellor-javier-reyes">Screenshot, UMass Amherst official website</a></span>
</figcaption>
</figure>
<p><strong>That sounds representative of what’s been going on at colleges and universities around the country. At a certain point, the university’s leadership felt like it should speak?</strong></p>
<p>The chancellor, Javier Reyes, <a href="https://www.umass.edu/news/article/statement-war-middle-east-umass-amherst-chancellor-javier-reyes">issued a statement very quickly after the attacks</a>. That statement attempted to empathize with all students, staff and faculty who felt concerned and scared after the Hamas attack and who anticipated a full-scale Israeli war on the Gaza Strip as a result. </p>
<p><a href="https://www.umass.edu/news/article/statement-war-middle-east-umass-amherst-chancellor-javier-reyes">The chancellor’s initial statement</a> demonstrated the university’s broad concern for the impact of Oct. 7 on campus. It was clear in recognizing Hamas’ responsibility for its brutal and murderous attack on Israel. It also recognized that many people who cared about Palestinians would be grieving. </p>
<p>Many campus stakeholders saw the statement as appearing not to take sides in a conflict that provokes contentious reactions. I think the statement also spoke to the many UMass community members who felt deep concern for people suffering unfathomable loss on both sides in this new wave of conflict.</p>
<p>The UMass administration may not wish to weigh in on the Israeli-Palestinian conflict because they see no campus communal consensus, or it is unclear that UMass can affect the issue directly. I am sure university officials care about this conflict. But they also may fear that taking a position on a genuinely contested global issue will make some members of our community feel unrepresented or discouraged from taking part in the robust education and contentious conversation on hard issues that help define the univerity’s mission.</p>
<p><strong>Those are really values, not politics, that you’re talking about, aren’t they?</strong></p>
<p>American universities face major challenges from external political groups, <a href="https://www.nytimes.com/interactive/2022/05/02/magazine/wendy-brown-interview.html">particularly on the right</a>. The idea that open, well-informed, reasoned discussion can be central in the U.S. or any society that calls itself democratic has itself become contested. Not only is what universities do challenged politically, but I fear we are losing ground. Whether we call it politics or values, defending and creating space for open, evidence-driven education, free discussion, empathy and tolerance is central in the struggle here and now to maintain democracy against authoritarianism.</p>
<p><strong>Do you mean it’s a political statement to say “We value respectful discussion of different points of view”?</strong></p>
<p>Right. It’s clear that there are a lot of folks who <a href="https://apnews.com/article/israel-hamas-war-college-free-speech-543aff623d5f54ad6529fe598ae48271">want to see universities like mine take a specific stance</a> on something like Middle Eastern politics. For people who care about Palestinian rights and the current onslaught of deaths from Israel’s military, this can seem more urgent now than anything else. I understand colleagues who think that UMass’ institutional potential to have a material impact on Palestinian lives is worth the risk to our harmony or community members’ security. Yet I also understand that a university might center the struggle to maintain our institutional autonomy, community members’ trust and diverse speech as a primary set of political responses. </p>
<p><strong>What has your department done during this period?</strong></p>
<p>I sent out a statement to our constituents that echoed the chancellor’s statement prioritizing concern for members of the community. It underscored the tragedy and sadness of death and disruption on both sides of this conflict. I was careful not to suggest a specific political posture because my position requires me not to shut down members of my community who may have different viewpoints. My colleagues and I have tried to be open to hearing our students’ concerns, even when some are angry at us for not taking a clearer political stand.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/557329/original/file-20231102-21-f0ny00.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two people, one holding a Palestinian flag and the other an Israeli flag, with a third person holding a sign in front of the Israeli flag." src="https://images.theconversation.com/files/557329/original/file-20231102-21-f0ny00.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/557329/original/file-20231102-21-f0ny00.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=435&fit=crop&dpr=1 600w, https://images.theconversation.com/files/557329/original/file-20231102-21-f0ny00.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=435&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/557329/original/file-20231102-21-f0ny00.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=435&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/557329/original/file-20231102-21-f0ny00.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=547&fit=crop&dpr=1 754w, https://images.theconversation.com/files/557329/original/file-20231102-21-f0ny00.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=547&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/557329/original/file-20231102-21-f0ny00.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=547&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Pro-Palestinian protesters held out signs to block a pro-Israeli protester as they peacefully disagreed on the campus of UMass Amherst on Oct. 25, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/amherst-ma-pro-palestinian-protesters-held-out-signs-to-news-photo/1745588498?adppopup=true">Jessica Rinaldi/The Boston Globe via Getty Images</a></span>
</figcaption>
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<p>Then my department convened two public talks by experts who live in our area. First, <a href="https://dailycollegian.com/2023/10/dr-ahmad-samih-khalidi-discusses-the-israel-gaza-conflict/">Dr. Ahmad Khalidi, a Palestinian academic and policy activist</a> with decades of relevant experience, provided one perspective. Dr. Khalidi spoke eloquently on current and ongoing conditions Palestinians face to the several hundred attendees and 70 or 80 people on Zoom. </p>
<p>More recently, we featured the perspectives of a local Israeli, <a href="https://en.idi.org.il/experts/1360">Dr. Jesse Ferris, who helps run a leading Israeli think tank, the Israel Democracy Institute</a>. This event also had very strong attendance. </p>
<p>Both events were civil and thoughtful and ended with a set of questions from the audience that indicated divergent perspectives in the room. After the second talk, several students initiated a discussion – indeed, a respectful argument – on whether or not Israel’s current military operations could be justified.</p>
<p>From my vantage point, as someone who sees many people on campus in pain and many more not knowing what to think, bringing in expertise that can encourage people to engage with one another, potentially across divides, seems needed. So that’s what we did. </p>
<p><strong>The group Students for Justice for Palestine, or SJP, held a large rally that ended up in a <a href="https://www.bostonglobe.com/2023/10/25/metro/pro-palestinian-rallies-planned-for-mass-colleges-wednesday/">sit-in at the university’s administration building. Over 50 arrests</a> were made when the students didn’t leave as the building was officially closed. What did that mean for efforts to foster constructive discussions?</strong></p>
<p>I appreciate that the chancellor and his team met personally with students from SJP right after the rally and later with a group of Jewish students. The statement that the <a href="https://www.umass.edu/chancellor/news/chancellors-message-campus-activism-umass-amherst">chancellor issued a day after the SJP rally</a> seeks to balance concern for the campus community with aligning the university strongly with free speech, even when such speech is upsetting, as the rally felt to some. </p>
<p>The statement once more did not take a specific position on the Middle East or on the perspectives advanced by campus groups. The chancellor focused on defending the right of protesters, and everyone, to speak. </p>
<p>His statement did not make everyone here happy. Yet opening himself and UMass Amherst to criticism by championing vigorous debate on a far-flung, divisive conflict affirms what our university stands for. We are a place for discussion, diversity of opinion and sometimes difficult conversations about hard, hard problems.</p><img src="https://counter.theconversation.com/content/216858/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Mednicoff does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A scholar of the Mideast at a large public university says that caring and a commitment to free speech have been central to his campus’s response to students upset and angry over the Israel-Hamas war.David Mednicoff, Chair, Department of Judaic and Near Eastern Studies, and Associate Professor of Middle Eastern Studies and Public Policy, UMass AmherstLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2157122023-10-18T02:23:12Z2023-10-18T02:23:12ZA Palestinian author’s award ceremony has been cancelled at Frankfurt Book Fair. This sends the wrong signals at the wrong time<figure><img src="https://images.theconversation.com/files/554419/original/file-20231017-17-s8a0bs.png?ixlib=rb-1.1.0&rect=5%2C5%2C3988%2C1988&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Adania Shibli</span> </figcaption></figure><p>A ceremony scheduled for the Frankfurt Book Fair, at which a Palestinian author, Adania Shibli, was to receive a prestigious award, has been cancelled in the wake of <a href="https://theconversation.com/a-crisis-of-legitimacy-whats-at-stake-for-israel-and-the-palestinians-215341">the Hamas attacks on Israel</a>.</p>
<p>A jury had awarded Shibli the 2023 <a href="https://de.wikipedia.org/wiki/LiBeraturpreis">LiBeraturpreis</a> award for her novel, <a href="https://www.textpublishing.com.au/books/minor-detail">Minor Detail</a>. It juxtaposes the true story of the rape and murder of a Bedouin girl by an Israel army unit in 1949 with the fictional story of a female journalist investigating the crime in the Palestinian city of Ramallah, decades later.</p>
<p>The award, <a href="https://www.theguardian.com/world/2023/oct/15/palestinian-voices-shut-down-at-frankfurt-book-fair-say-authors">which was to be given</a> at a ceremony on 20 October, is hosted by Litprom, a not-for-profit organisation funded in part by the German government, and the Frankfurt Book Fair. Its objective is to promote women’s literature from African, Asian, Arab and Latin American countries. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/are-calls-to-cancel-two-palestinian-writers-from-adelaide-writers-week-justified-200165">Are calls to cancel two Palestinian writers from Adelaide Writers' Week justified?</a>
</strong>
</em>
</p>
<hr>
<h2>Nuanced writing on genocidal histories</h2>
<p>Ulrich Noller, a journalist, left the LiBeraturpreis jury in protest at the award, denouncing Shibli’s book as portraying “the State of Israel as a murder machine”. And a review in the widely read, left-leaning German newspaper, Die Tageszeitung (The Daily Newspaper), <a href="https://www.theguardian.com/world/2023/oct/15/palestinian-voices-shut-down-at-frankfurt-book-fair-say-authors">alleged that the novel used</a> anti-Israel and anti-Semitic narratives, adding:</p>
<blockquote>
<p>In this short novel, all Israelis are rapists and murderers, while the Palestinians are victims of trigger-happy occupiers.</p>
</blockquote>
<p>These perspectives were not shared by other members of the Litprom jury, nor by many other critics. The book has been nominated in the US for the National Book Awards and the International Book Awards. Its admirers include J.M. Coetzee and Australian writer <a href="https://twitter.com/MireilleJuchau/status/1713689208400089362">Mireille Juchau, who wrote this week</a>:</p>
<blockquote>
<p>More than ever we need nuanced writing on the irrefutable ways violent and genocidal histories exert their power on the present. Adania Shibli’s Minor Detail is one of the finest recent examples.</p>
</blockquote>
<p>Neither Litprom nor the director of the book fair, Juergen Boos, invoked anti-Semitism as a reason for cancelling the award ceremony. In fact, they said the ceremony would go ahead at a future time and place, yet to be fixed.</p>
<p><a href="https://www.litprom.de/bests-bucher/liberaturpreis/preistragerin-2023/">Litprom said</a>:</p>
<blockquote>
<p>Due to the war started by Hamas, under which millions of people in Israel and Palestine are suffering, the organizer Litprom decided not to hold the award ceremony of the LiBeraturpreis at the Frankfurt Book Fair. Litprom is looking for a suitable format and setting for the event at a later point.</p>
</blockquote>
<p>Boos, <a href="https://www.buchmesse.de/en/news/israel#:%7E:text=Israel%20Statement%20EN-,%22We%20want%20to%20make%20Jewish%20and%20Israeli%20voices%20especially%20visible,Boos%2C%20Director%20of%20Frankfurter%20Buchmesse">in his statement announcing the cancellation</a>, said:</p>
<blockquote>
<p>We strongly condemn Hamas’s barbaric terror war against Israel […] Frankfurter Buchmesse has always been about humanity, its focus has always been on peaceful and democratic discourse […] Frankfurter Buchmesse stands with complete solidarity on the side of Israel.</p>
</blockquote>
<p>He went on to say that Israeli and Jewish voices would be given additional time on the book fair’s stages and that an event called “Out of Concern for Israel” would be staged in the fair’s cultural and political pavilion.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/deadliest-day-for-jews-since-the-holocaust-spurs-a-crisis-of-confidence-in-the-idea-of-israel-and-its-possible-renewal-215507">Deadliest day for Jews since the Holocaust spurs a crisis of confidence in the idea of Israel – and its possible renewal</a>
</strong>
</em>
</p>
<hr>
<h2>Treated as a ‘symbol’?</h2>
<p>This is consistent with the widespread reaction to the atrocities committed by Hamas in southern Israel. They are on a scale of savagery seldom brought into public view.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/554141/original/file-20231017-15-n54zoq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/554141/original/file-20231017-15-n54zoq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/554141/original/file-20231017-15-n54zoq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=918&fit=crop&dpr=1 600w, https://images.theconversation.com/files/554141/original/file-20231017-15-n54zoq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=918&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/554141/original/file-20231017-15-n54zoq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=918&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/554141/original/file-20231017-15-n54zoq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1153&fit=crop&dpr=1 754w, https://images.theconversation.com/files/554141/original/file-20231017-15-n54zoq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1153&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/554141/original/file-20231017-15-n54zoq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1153&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>Yet it is not alleged that Shibli has any sympathy for Hamas or its atrocities. And it is clear from the statements of both Litprom and Boos that their reasons for cancelling the award ceremony has nothing to do with either the merits of Shibli’s novel or her conduct as a person.</p>
<p>So the question arises: what is the connection between Shibli and the Hamas atrocities? This is the ground on which the ceremony is being cancelled. When asked to clarify the connection they perceived between Shibli and Hamas, Litprom told The Conversation:</p>
<blockquote>
<p>Against the background of the polarized situation in Germany, in which parts of the media tried to scandalize the celebration of the award, we thought it right to hold the award ceremony at a different time in a less politically charged atmosphere.</p>
</blockquote>
<p>Litprom <a href="https://taz.de/Debatte-um-Autorin-Adania-Shibli/!5965811/">cited the Die Tageszeitung article</a>, which read in part: “After the mass murders of the Hamas terrorists, the awarding of the prize would be almost unbearable.”</p>
<p>Is Shibli being treated as a symbol because she is Palestinian, and her book is from the perspective of a Palestinian? If so, that would put her ethnicity at the centre of the decision-making, which would be an appalling injustice to her as an individual and a violation of principles stated in Article 2 of the <a href="https://www.un.org/en/about-us/universal-declaration-of-human-rights">Universal Declaration of Human Rights</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/terrorist-vs-militant-the-complicated-language-of-reporting-atrocities-in-israel-hamas-war-215626">Terrorist vs. militant: The complicated language of reporting atrocities in Israel-Hamas war</a>
</strong>
</em>
</p>
<hr>
<h2>Against free speech</h2>
<p>The second objection to the Frankfurt decision is that it is an unjustified and counterproductive abridgement of free speech. This argument has been taken up by <a href="https://www.latimes.com/entertainment-arts/books/story/2023-10-16/adania-shinli-book-prize-cancellation">more than 1,000 literary figures</a> globally, including Irish novelist Colm Tóibín, Pulitzer Prize-winning author Hisham Matar, Man Booker Prize finalist Rachel Kushner and Women’s Prize winner Kamila Shamsie.</p>
<p>In an open letter to the Frankfurt Book Fair, <a href="https://www.theguardian.com/world/2023/oct/15/palestinian-voices-shut-down-at-frankfurt-book-fair-say-authors">they make the important point</a> that this is the very time Palestinian writers should be given space to share their thoughts, feelings and reflections. Doing so would seem to be consistent with Jurgen Boos’ assertion that the book fair has always been focused on peaceful and democratic discourse.</p>
<p>If dialogue has any part in peaceful and democratic discourse, shutting down Palestinian literary voices at this time seems to work against this objective. The protesting authors go further and call it irresponsible.</p>
<p>There seems to be no reason why the book fair should not give Israeli and Jewish voices the additional time and visibility that is undoubtedly justified, while continuing with the LiBeraturpreis award ceremony. Doing so would be a powerful symbol of its own, a demonstration that the book fair is indeed a place for peaceful and democratic discourse.</p>
<p>Of course there are always security considerations to be taken into account, especially at a time of such heightened emotions. But these, too, have not been invoked by the organisers as a reason for the cancellation.</p>
<p>I believe this cancellation was an ethically indefensible decision – sending exactly the wrong signals at exactly the wrong time.</p><img src="https://counter.theconversation.com/content/215712/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Denis Muller does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>More than 1,000 literary figures so far have signed an open letter protesting the cancellation of an award ceremony to honour Palestinian writer Adania Shibli.Denis Muller, Senior Research Fellow, Centre for Advancing Journalism, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2155242023-10-13T03:33:39Z2023-10-13T03:33:39ZCelebrated novelist Arundhati Roy faces prosecution in India – for a speech she gave in 2010<p>Booker Prize-winning writer Arundhati Roy, author of <a href="https://www.harpercollins.com.au/9780006550686/the-god-of-small-things/">The God of Small Things</a>, has been charged, along with retired law professor <a href="https://en.wikipedia.org/wiki/Sheikh_Showkat_Hussain">Sheikh Showkat Hussain</a>, for allegedly seditious comments supporting the separation of Kashmir from India. </p>
<p>They were speaking at a 2010 Delhi conference, the same year right-wing activist Sushil Pandit <a href="https://thewire.in/rights/why-is-the-indian-state-reigniting-a-13-year-old-case-against-arundhati-roy">filed the complaint</a> on which these latest charges draw.</p>
<p>Nearly 13 years later, on October 10, Delhi’s lieutenant governor V.K. Saxena, with the approval of <a href="https://theconversation.com/the-man-who-dines-alone-26758">Narendra Modi’s government</a>, sanctioned the <a href="https://www.thehindu.com/news/national/delhi-lg-approves-prosecution-of-arundhati-roy-kashmir-professor-in-2010-provocative-speeches-case/article67403942.ece">prosecution</a>. Roy and Hussain are accused of making statements promoting social enmity, prejudicing national integration and inciting offences against the state and public tranquillity.</p>
<p>It’s the latest in a series of prosecutions and arrests using India’s <a href="https://en.wikipedia.org/wiki/Unlawful_Activities_(Prevention)_Act">Unlawful Activities (Prevention) Act</a>, which was amended in 2019 to allow the government to designate individuals as terrorists, without following any formal judicial process.</p>
<p>Roy and Hussain are not being prosecuted under sedition law, though. (In May 2022, the Indian Supreme Court <a href="https://www.livelaw.in/top-stories/breaking-supreme-court-urges-centre-states-to-refrain-from-registering-firs-invoking-section-124a-ipc-198810">ordered</a> a hold on prosecuting such cases, while the Indian government reviews the colonial-era sedition law.)</p>
<p>As India hurtles toward the 2024 national election, liberal-left civil society and independent media have become prime targets of the Modi government.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/novelist-arundhati-roy-and-her-mission-to-inspire-in-the-ministry-of-utmost-happiness-80344">Novelist Arundhati Roy and her mission to inspire in the Ministry of Utmost Happiness</a>
</strong>
</em>
</p>
<hr>
<h2>A ‘dangerous time’ for minorities</h2>
<p>A strident critic of Modi’s ruling <a href="https://en.wikipedia.org/wiki/Bharatiya_Janata_Party">Bharatiya Janata Party</a>, Roy used her September <a href="https://scroll.in/article/1055943/arundhati-roy-the-dismantling-of-democracy-in-india-will-affect-the-whole-world">acceptance speech</a> for the European Essay Prize to further condemn his government. </p>
<p>She criticised its normalisation of Hindu supremacism in public life and institutions, its crony capitalism, and India’s burgeoning economic inequality. She noted: </p>
<blockquote>
<p>elections are a season of murder, lynching and dog-whistling – the most dangerous time for India’s minorities, Muslims and Christians in particular. </p>
</blockquote>
<h2>The ‘Maoist conspiracy’ case</h2>
<p>On October 2, India’s National Investigative Authority conducted <a href="https://thewire.in/rights/nia-raids-62-andhra-pradesh-telangana-maoist">coordinated raids</a> against human rights activists in the states of Telangana and Andhra Pradesh, related to the “Maoist conspiracy” case in the village of Munchingiputtu. </p>
<p>TV journalist Pangi Nagannna <a href="https://menafn.com/1107181625/NIA-Arrests-Andhra-Pradesh-Resident-In-Connection-With-Munchingiputtu-Maoist-Conspiracy">had been arrested</a> by Munchingiputtu police in November 2020 for allegedly acting as a Maoist “courier”.</p>
<p>He was charged under the Unlawful Activities (Prevention) Act (and various sections of the Indian Penal Code), along with 63 others. He then reportedly named several activists associated with organisations linked to the outlawed <a href="https://en.wikipedia.org/wiki/Communist_Party_of_India_(Maoist)">Communist Party of India (Maoist) </a> – thus revealing a conspiracy to aid a Maoist insurgency.</p>
<p>These raids involve the confiscation of electronic devices vital to activists’ work. They are designed to intimidate and suppress advocacy.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/india-elections-who-are-narendra-modis-main-rivals-and-can-they-beat-him-114525">India elections: who are Narendra Modi's main rivals – and can they beat him?</a>
</strong>
</em>
</p>
<hr>
<h2>Newsclick raids</h2>
<p>On October 3, Prabir Purkayastha and Amit Chakravarty, of the news organisation <a href="https://www.newsclick.in/">Newsclick</a>, were subjected to <a href="https://thewire.in/media/delhi-police-conducts-early-morning-raids-at-houses-of-journalists-satirists">police raids</a>. So were 50 other journalists and contributors – including historians, activists and satirists.</p>
<p>Purkayastha and Chakravarty were charged under the the Unlawful Activities (Prevention) Act, as well as with criminal conspiracy and promoting social enmity.</p>
<p>The basis appeared to be a two-month-old <a href="https://www.nytimes.com/2023/08/05/world/europe/neville-roy-singham-china-propaganda.html">New York Times report</a> that alleged, with <a href="https://scroll.in/article/1057147/nyts-report-has-been-weaponised-against-indian-journalists-i-had-warned-the-paper-about-it">weak evidence</a>, that Newsclick had received funds from an American, Neville Roy Singham, to “sprinkle” its coverage with “Chinese government talking points”. </p>
<p>Since 2010, <a href="https://thewire.in/media/16-indian-journalists-have-been-charged-under-uapa-7-are-currently-behind-bars">16 journalists</a> have been charged under the Unlawful Activities (Prevention) Act. Most of these arrests have been in the Modi era. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/divided-indian-diaspora-in-australia-tops-concerns-for-narendra-modi-visit-205993">Divided Indian diaspora in Australia tops concerns for Narendra Modi visit</a>
</strong>
</em>
</p>
<hr>
<h2>An alleged conspiracy and a ‘puppet’</h2>
<p>In August, Bharatiya Janata Party politicians and ministers Nishikant Dubey, Anuraj Thakur and Rajeev Chandrasekhar used the New York Times report to <a href="https://thewire.in/politics/bjp-mp-nishikant-dubey-rahul-gandhi-newsclick-independent-journalists-chinese-links-nyt-report">allege a conspiracy</a> between the opposition Congress Party and Rahul Gandhi, Newsclick and the Chinese government, to “break India” and prevent “India’s rise”. </p>
<p>The Bharatiya Janata Party has also claimed Rahul Gandhi is a <a href="https://twitter.com/BJP4India/status/1709819569450471817?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1709819569450471817%7Ctwgr%5E5c6f952b45acfff22946e46aab6e999906ebc58d%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.businesstoday.in%2Flatest%2Fpolitics%2Fstory%2Frahul-gandhi-as-new-age-ravan-pm-modi-as-adani-puppet-poster-war-erupts-between-bjp-congress-401027-2023-10-06">puppet</a> of billionaire investor George Soros.</p>
<p>In March, Gandhi had been convicted over his comments that “all thieves have Modi as [their] common surname”, which were deemed insulting to the prime minister. He was sentenced to two years’ jail, meaning he lost his parliamentary seat. An appeal to the Supreme Court saw his <a href="https://www.theguardian.com/world/2023/aug/04/rahul-gandhi-wins-supreme-court-appeal-against-defamation-conviction">conviction suspended</a> on August 4 (the day before the New York Times report), allowing him to return to parliament and contest next year’s national elections.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-modis-india-has-become-a-dangerous-place-for-muslims-132591">Why Modi's India has become a dangerous place for Muslims</a>
</strong>
</em>
</p>
<hr>
<h2>Dissent shrinking under ‘flawed democracy’</h2>
<p>As Roy has long pointed out, India has always been a <a href="https://www.penguin.co.in/book/broken-republic-2/">flawed democracy</a> with overly centralised <a href="https://journalofdemocracy.org/articles/the-authoritarian-roots-of-indias-democracy/">governance</a> structures that breed discontent, a <a href="https://scroll.in/article/951661/is-there-a-hindu-bias-in-indias-secular-constitution-a-2005-academic-paper-suggests-as-much">constitution</a> with elements favouring the Hindu majority, and laws that stifle free speech. </p>
<p>However, the space for dissent has dramatically shrunk in the past decade under Modi’s authoritarian populist leadership. </p>
<p>The government’s new information technology <a href="https://www.thehindu.com/news/national/global-net-freedom-on-the-decline-indias-censorship-regime-creating-uneven-playing-field-freedom-house-report/article67384799.ece">rules</a> require social media companies to use AI moderation to identify and remove fake, false or misleading news related to the government. In 2020, the government issued more than 9,800 take-down orders.</p>
<p>The subjects of these <a href="https://www.hindustantimes.com/india-news/6k-social-media-content-takedown-orders-this-year-101623014539309.html">orders</a> have included a <a href="https://www.bbc.co.uk/programmes/p0dkb144">BBC documentary that was critical of Modi</a>, criticism of the government’s COVID policies, and support of farmer protests against India’s agricultural policies. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/Mxrl-ovDz3Y?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">The Indian government’s social media take-down orders included a BBC documentary critival of Modi.</span></figcaption>
</figure>
<p>The government has used <a href="https://scroll.in/article/897932/income-tax-raids-on-raghav-bahl-quint-and-news-minute-raise-questions-of-media-intimidation">tax investigations</a>, <a href="https://theintercept.com/2023/08/06/umar-khalid-india-modi/">accusations of terrorism</a> and <a href="https://www.aljazeera.com/news/2023/8/4/indias-supreme-court-suspends-rahul-gandhis-defamation-conviction">criminal defamation cases</a> against its critics and opponents. </p>
<p>Courts often <a href="https://www.hrw.org/report/2016/05/25/stifling-dissent/criminalization-peaceful-expression-india">dismiss cases</a> (like Rahul Gandhi’s) based on laws that criminalise peaceful expression. But their record is patchy, and the drawn-out legal process imposes heavy financial and personal penalties on the accused. This leads many to withdraw comments – with chilling effects on free speech. </p>
<p>Hailed as the world’s largest democracy, India risks becoming the world’s largest autocracy, with consequences for the whole world.</p><img src="https://counter.theconversation.com/content/215524/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Priya Chacko receives funding from the Australian Research Council.</span></em></p>Arundhati Roy’s prosecution is just one of a series of actions by Narendra Modi’s government against its opponents – including journalists, activists, students and opposing politicians.Priya Chacko, Senior Lecturer in International Politics, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2125552023-09-27T09:08:19Z2023-09-27T09:08:19ZDoes AI have a right to free speech? Only if it supports our right to free thought<figure><img src="https://images.theconversation.com/files/546682/original/file-20230906-29-kbyfn8.jpg?ixlib=rb-1.1.0&rect=40%2C0%2C8905%2C6143&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/artificial-intelligence-entity-using-voice-communicate-2106291758">ArtemisDiana / Shutterstock</a></span></figcaption></figure><p>The world has witnessed breathtaking advances in generative artificial intelligence (AI), with ChatGPT being one of the best known examples. To prevent harm and misuse of the technology, politicians are now considering <a href="https://www.gov.uk/government/publications/ai-regulation-a-pro-innovation-approach">regulating AI</a>. Yet they face an overlooked barrier: AI may have a right to free speech.</p>
<p>Under international law, humans possess <a href="https://digitallibrary.un.org/record/182777?ln=en">an inviolable right to freedom of thought</a>. As part of this, governments <a href="https://www.ohchr.org/en/documents/thematic-reports/a76380-interim-report-special-rapporteur-freedom-religion-or-belief">have a duty</a> to create an environment where people can think freely.</p>
<p>As we’ve seen with ChatGPT, AI can support our thinking, providing information and offering answers to our questions. This has led some to argue that our right to think freely may require giving AI a right to speak freely.</p>
<h2>Free thought needs free speech</h2>
<p>Recent <a href="https://time.com/6278220/protecting-ai-generated-speech-first-amendment/">articles</a>, <a href="https://www.journaloffreespeechlaw.org/volokhlemleyhenderson.pdf">papers</a> and <a href="https://www.cambridge.org/ie/universitypress/subjects/law/constitutional-and-administrative-law/robotica-speech-rights-and-artificial-intelligence?format=HB&isbn=9781108428064">books</a> from the US have made the case that AI has a right to free speech. </p>
<p>Corporations, like AI systems, are not people. Yet the <a href="https://supreme.justia.com/cases/federal/us/558/310/">US supreme court</a> has ruled that government should not suppress corporations’ political speech. This is because the <a href="https://constitution.congress.gov/constitution/amendment-1/">first amendment</a> protects Americans’ <a href="https://supreme.justia.com/cases/federal/us/558/310/">freedom to think for themselves</a>.</p>
<p>Free thought, says the US supreme court, requires us to hear from “<a href="https://supreme.justia.com/cases/federal/us/326/1/">diverse and antagonistic sources</a>”. The US government telling people where to get their information would be an unlawful use of “<a href="https://supreme.justia.com/cases/federal/us/558/310/">censorship to control thought</a>”. So corporations’ free speech is believed to create an environment where individuals are free to think.</p>
<p>The same principle could extend to AI. The US supreme court says that protecting speech “<a href="https://supreme.justia.com/cases/federal/us/435/765/">does not depend upon the identity of its source</a>”. Instead, the key criterion for protecting speech is that the speaker, whether an individual, corporation or AI, contributes to the marketplace of ideas. </p>
<h2>AI and misinformation</h2>
<p>Yet, an unthinking application of <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3922565">free speech law to AI</a> could be damaging. Giving AI free speech rights could actually harm our ability to think freely. We have a term, sophist, for those who use language to persuade us of falsehoods. While AI super-soldiers would be dangerous, AI super-sophists could be much worse.</p>
<figure class="align-center ">
<img alt="Woman looking at her smartphone." src="https://images.theconversation.com/files/547024/original/file-20230907-23101-m1kr8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/547024/original/file-20230907-23101-m1kr8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/547024/original/file-20230907-23101-m1kr8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/547024/original/file-20230907-23101-m1kr8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/547024/original/file-20230907-23101-m1kr8l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/547024/original/file-20230907-23101-m1kr8l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/547024/original/file-20230907-23101-m1kr8l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">AI could, in theory, flood the internet with misinformation, making it difficult to tell fact from fiction.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/upset-confused-african-woman-holding-cellphone-1361068583">fizkes / Shutterstock</a></span>
</figcaption>
</figure>
<p>An unconstrained AI might pollute the information landscape with misinformation, flooding us with “<a href="https://futureoflife.org/open-letter/pause-giant-ai-experiments/">propaganda and untruth</a>”. But punishing falsehoods could easily <a href="https://global.oup.com/academic/product/liars-9780197545119">stray into censorship</a>. The best antidote to AI’s <a href="https://supreme.justia.com/cases/federal/us/274/357/">falsehoods and fallacies</a> could be more AI speech that <a href="https://time.com/6278220/protecting-ai-generated-speech-first-amendment/">counters misinformation</a>. </p>
<p>AI could also use its knowledge of human thinking to systematically attack <a href="https://www.simonandschuster.com/books/Freethinking/Simon-McCarthy-Jones/9780861544578">what makes our thought free</a>. It could control our attention, discourage pause for reflection, pervert our reasoning, and intimidate us into silence. Our minds could therefore become moulded by machines.</p>
<p>This could be the wake-up call we need to spur a renaissance in human thinking. Humans have been described as “<a href="https://www.taylorfrancis.com/chapters/edit/10.4324/9781315658353-13/humans-cognitive-misers-means-great-rationality-debate-keith-stanovich">cognitive misers</a>”, which means we only really think when we need to. A free-speaking AI could force us to think more deeply and deliberately about what is true.</p>
<p>However, the huge quantities of speech that AI can produce could give it an oversized influence on society. Currently, the US supreme court views silencing some speakers to hear others better as “<a href="https://supreme.justia.com/cases/federal/us/424/1/">wholly foreign to the first amendment</a>”. But restricting the speech of machines might be necessary to allow human speech and thought to flourish.</p>
<h2>Proposed regulation of AI</h2>
<p>Both <a href="https://www.cambridge.org/core/books/abs/cambridge-handbook-of-the-law-of-algorithms/artificial-minds-in-first-amendment-borderlands/C60AF9211B5E72991DB73D6BD2D5155B">free speech law</a> and AI regulation must consider their impact on free thought. Take the <a href="https://www.europarl.europa.eu/news/en/headlines/society/20230601STO93804/eu-ai-act-first-regulation-on-artificial-intelligence">European Union’s draft AI act</a> and its proposed regulation of generative AI such as ChatGPT.</p>
<p>Firstly, this act requires AI-generated content to be disclosed. Knowing content comes from an AI, rather than a person, might help us evaluate it more clearly – promoting free thought.</p>
<p>But permitting some anonymous AI speech could help our thinking. AI’s owners may experience less public pressure to censor legal but controversial AI speech if such speech was anonymous. AI anonymity could also have the effect of making us judge AI speech on its merits rather than <a href="https://www.cambridge.org/core/books/abs/cambridge-handbook-of-the-law-of-algorithms/artificial-minds-in-first-amendment-borderlands/C60AF9211B5E72991DB73D6BD2D5155B">reflexively dismissing it as “bot speech”</a>. </p>
<p>Secondly, the EU act requires companies to design their AI models to avoid generating illegal content, which in those countries includes hate speech. But this could prevent both legal and illegal speech being generated. European hate speech laws already cause both legal and illegal online comments to be deleted, <a href="http://justitia-int.org/en/new-report-digital-freedom-of-speech-and-social-media/">according to a think tank report</a>.</p>
<p>Holding companies liable for what their AI produces could also incentivise them to unnecessarily restrict what it says. The US’s section 230 law shields social media companies from much legal liability for their users’ speech, but <a href="https://www.journaloffreespeechlaw.org/perault.pdf">may not protect AI’s speech</a>. We may need new laws to insulate corporations from such pressures.</p>
<p>Finally, the act requires companies to publish summaries of copyrighted data used to train (improve) AI. The EU wants AI to share its library record. This could help us evaluate AI’s likely biases.</p>
<p>Yet humans’ reading records are protected for good reason. If we thought others could know what we read, we might be likely to shy away from controversial but potentially useful texts. Similarly, revealing AI’s reading list might pressurise tech companies not to train AI with legal but controversial material. This could limit AI’s speech and our free thought.</p>
<h2>Thinking with technology</h2>
<p>As Aza Raskin from the Center for Humane Technology <a href="https://www.humanetech.com/podcast/the-ai-dilemma">points out</a>, threats from new technologies can require us to develop new rights. <a href="https://www.humanetech.com/podcast/the-ai-dilemma">Raskin explains how</a> the ability of computers to preserve our words led to a new <a href="https://gdpr.eu/right-to-be-forgotten/">right to be forgotten</a>. AI may force us to <a href="https://www.simonandschuster.com/books/Freethinking/Simon-McCarthy-Jones/9780861544578">elaborate and reinvent our right to freedom of thought</a>.</p>
<p>Moving forward, we need what the legal scholar Marc Blitz terms “<a href="https://www.cambridge.org/core/books/abs/cambridge-handbook-of-the-law-of-algorithms/artificial-minds-in-first-amendment-borderlands/C60AF9211B5E72991DB73D6BD2D5155B">a right to think with technology</a>” – freedom to interact with AI and computers, using them to inform our thinking. Yet such thinking may not be free if AI is compelled to be “<a href="https://futureoflife.org/open-letter/pause-giant-ai-experiments/">safe … aligned … and loyal</a>”, as tech experts recently demanded in a petition to pause AI development. </p>
<p>Granting AI free speech rights would both support and undermine our freedom of thought. This points to the need for AI regulation. Yet such regulatory action must clearly show how it complies with our inviolable right to freedom of thought, if we are to remain in control of our lives.</p><img src="https://counter.theconversation.com/content/212555/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon McCarthy-Jones receives funding from the European Union’s Horizon 2020 program via a Marie Skłodowska-Curie Actions Innovative Training Network.</span></em></p>If we decide that AI helps us think freely, we may need to give it rights too.Simon McCarthy-Jones, Associate Professor in Clinical Psychology and Neuropsychology, Trinity College DublinLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2132412023-09-12T02:15:14Z2023-09-12T02:15:14ZYes, Labor’s misinformation bill could jeopardise free speech online<figure><img src="https://images.theconversation.com/files/547721/original/file-20230912-17-axeb80.jpg?ixlib=rb-1.1.0&rect=12%2C74%2C8231%2C5413&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>In January this year, the federal government proposed legislation that seeks to curb the online spread of false and misleading information. </p>
<p>Since then, a range of experts and groups have accused the draft Communications Legislation Amendment (Combating Misinformation and Disinformation) Bill of being vaguely worded and encouraging censorship.</p>
<p>Is this bill really an affront to free speech and, therefore, to democracy itself? And if so, how might it be strengthened to protect online expression? </p>
<h2>An overview of the bill</h2>
<p>The bill aims to amend the Broadcasting Services Act 1992 to <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">grant</a> the Australian Communications and Media Authority (ACMA) “powers to combat online misinformation and disinformation”. </p>
<p>Specifically, ACMA would be given the power to make platforms report back on the measures they are taking to combat what is sometimes called “<a href="https://www.emerald.com/insight/publication/doi/10.1108/9781801178761">fake news</a>”. Should ACMA <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">determine</a> that “stronger protections for Australians are required”, it can then alter the existing media codes of practice and introduce new codes.</p>
<p>ACMA will also <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">have the power</a> “to make an enforceable standard for all digital services providers in the relevant section[s] of the industry”. </p>
<p>The federal government has emphasised ACMA will not remove content from platforms. </p>
<p>The government has also stated the bill “seek[s] to strike a balance between the public interest in combating the serious harms that arise from the propagation of misinformation and disinformation, with freedom of speech”.</p>
<p>But some critics – including constitutional law expert <a href="https://www.theaustralian.com.au/nation/constitutional-lawyer-anne-twomey-warns-of-bills-free-speech-risk/news-story/9ff68cffc5aca09a93b30a45eb983242">Anne Twomey</a> and the <a href="https://humanrights.gov.au/about/news/opinions/why-misinformation-bill-risks-freedoms-it-aims-protect">Australian Human Rights Commission</a> (AHRC) – have argued the bill doesn’t successfully strike this balance, and may have a chilling impact on online expression. </p>
<h2>Combating fake news, or silencing expression?</h2>
<p>The bill’s problems stem largely from the definitions it uses. Both misinformation and disinformation are <a href="https://lawcouncil.au/publicassets/5b25938f-d346-ee11-948a-005056be13b5/4410%20-%20S%20-%20Combatting%20Misinformation%20and%20Disinformation.pdf">defined</a> as “information that is false, misleading or deceptive” and that “is reasonably likely to cause or contribute to serious harm”.</p>
<p>But there is a key difference between these two terms: disinformation is information that is distributed with the express purpose of deceiving others, whereas misinformation isn’t necessarily spread with deceptive intent. </p>
<p>The Law Council of Australia <a href="https://lawcouncil.au/publicassets/5b25938f-d346-ee11-948a-005056be13b5/4410%20-%20S%20-%20Combatting%20Misinformation%20and%20Disinformation.pdf">warns</a> the broadness and imprecision of key terminology in the bill may result in confusion in its application. Similarly, the AHRC <a href="https://humanrights.gov.au/about/news/opinions/why-misinformation-bill-risks-freedoms-it-aims-protect">has said</a>:</p>
<blockquote>
<p>The broad definitions used here risk enabling unpopular or controversial opinions or beliefs to be subjectively labelled as misinformation or disinformation, and censored as a result.</p>
</blockquote>
<p>Put simply, the bill could threaten freedom of speech: the ability to speak one’s mind in a public forum without the unreasonable threat of being silenced (such as via lawsuits or incarceration).</p>
<p>Freedom of speech has been <a href="https://www.tandfonline.com/doi/full/10.1080/10361146.2020.1799938?casa_token=lLy8Dh0BdWcAAAAA%3Ar8fJK3TfvgKrFQw2Uhtp3jNbjNJ-ix2Ir7tvaI8Ss88sOA576ULPWB0EBSHdhGxzST_ZoMa56-xYCw">heralded</a> as a bulwark of any robust democracy; for a democracy to function, citizens must have the right to have their say on the issues of the day.</p>
<p>In the United States, free speech is protected by the First Amendment. No such formal protection exists in Australia. Nevertheless, the AHRC <a href="https://humanrights.gov.au/our-work/rights-and-freedoms/freedom-information-opinion-and-expression">notes</a>:</p>
<blockquote>
<p>the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution.</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-twitter-is-not-censoring-donald-trump-free-speech-is-not-guaranteed-if-it-harms-others-153092">No, Twitter is not censoring Donald Trump. Free speech is not guaranteed if it harms others</a>
</strong>
</em>
</p>
<hr>
<h2>Risk of ‘double standards’</h2>
<p>The risk to free speech is further heightened by the bill’s interpretation of what constitutes harm. Historically, the potential of speech to cause <a href="https://journals.sagepub.com/doi/full/10.1177/1329878X21992890?casa_token=eR4jwoaHAt8AAAAA%3A_SU7VNDFPXucu3gCHuBzhfpFO63wVn8WE_QOnkW5LGQRqgtk0RghkokhrYn74HyhYL5T81TSjzot-w">harm</a> (either physical or psychological) has been understood as one of the few reasons that speech should ever be censored. </p>
<p>The bill <a href="https://www.infrastructure.gov.au/sites/default/files/documents/communications-legislation-amendment-combatting-misinformation-and-disinformation-bill-2023-guidance-note-june2023_2.pdf">identifies</a> one harm as being the “disruption of public order or society in Australia” – but does not clarify what such a disruption would actually entail. </p>
<p>The Media, Entertainment and Arts Alliance argues this concept of “harm” is especially vulnerable to misuse. It <a href="https://www.meaa.org/download/meaa-submission-on-misinformation-and-disinformation/">notes</a> “there is a long history of important social movements being considered ‘disruptive’ by governments and powerful interests”.</p>
<p>It’s easy to imagine online campaigns opposing Australian refugee policy, taxation laws or institutionalised racism being labelled as “misinformation” – even if they have a factual basis.</p>
<p>The bill does feature a list of exemptions, including authorised government content. This could include press releases and social media posts. </p>
<p>The Victorian Bar <a href="https://www.vicbar.com.au/sites/default/files/2023.07.28%20VB%20Submission%20-%20Communications%20Legislation%20Amendment%20Bill.pdf">posits</a> this exemption creates a “double standard” that “disadvantages critics of government in comparison with a government’s supporters”.</p>
<p>There is also the patently false implication that government information can’t be incorrect.</p>
<h2>What happens now?</h2>
<p>Despite its faults, the bill is well intentioned. As Minister for Communications Michelle Rowland <a href="https://lsj.com.au/articles/new-legislation-to-combat-online-misinformation/">rightly</a> says: </p>
<blockquote>
<p>Mis- and disinformation sows divisions within the community, undermines trust and can threaten public health and safety.</p>
</blockquote>
<p>The bill is yet to be debated in parliament, which means there’s still time for amendments to be made. In particular, the imprecision of key terminology is ripe for amendment. </p>
<p>Should the bill pass into law as it is, it could lead to censorship – endangering the very democracy it purports to defend.</p><img src="https://counter.theconversation.com/content/213241/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jay Daniel Thompson receives funding from the Australian Research Council for a collaborative study entitled 'Addressing online hostility in Australian Digital Cultures' (DP230100870). Dr. Thompson is also the recipient of a 2023 Herbert & Valmae Freilich Project ECR Small Grant for a project entitled ‘Digital citizenship and ethical journalistic representations of online hostility directed at women and girls’.</span></em></p>The bill, yet to be debated in parliament, is ripe for amendment.Jay Daniel Thompson, Lecturer and Program Manager, Professional Communication program, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2122422023-08-31T12:23:04Z2023-08-31T12:23:04ZMichael Oher, Mike Tyson and the question of whether you own your life story<figure><img src="https://images.theconversation.com/files/545972/original/file-20230901-21-zovk4b.jpg?ixlib=rb-1.1.0&rect=17%2C26%2C2977%2C1985&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Michael Oher and his family celebrate his selection by the Baltimore Ravens at the 2009 NFL Draft. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/baltimore-ravens-draft-pick-michael-oher-poses-for-a-news-photo/86217296?adppopup=true">Jeff Zelevansky/Getty Images</a></span></figcaption></figure><p>What if you overcame a serious illness to go on to win an Olympic medal? Could a writer or filmmaker decide to tell your inspiring story without consulting you? Or do you “own” that story and control how it gets retold?</p>
<p>Michael Oher, the former NFL player portrayed in the 2009 blockbuster “<a href="https://www.imdb.com/title/tt0878804/">The Blind Side</a>,” has sued Michael and Anne Leigh Tuohy, the suburban couple who took him into their home as a disadvantaged youth.</p>
<p>In his official complaint, Oher claims that through forgery, trickery or sheer incompetence, the Tuohys enabled 20th Century Fox to acquire the exclusive rights to his life story. </p>
<p>The Tuohys, Oher continues, received millions of dollars for a “story that would not have existed without him,” while he claims that he received nothing.</p>
<p>Just a year earlier, former heavyweight champion Mike Tyson was <a href="https://www.cnn.com/2022/08/08/media/mike-tyson-hulu-series/index.html">similarly incensed</a> when he learned that Hulu had created <a href="https://www.imdb.com/title/tt14181914/">a miniseries dramatizing his career</a> without seeking his permission. </p>
<p>“They stole my life story and didn’t pay me,” Tyson charged <a href="https://www.instagram.com/p/Cg7JRAeLY9B/?utm_source=ig_embed&ig_rid=8c5ce5bc-6faf-4c49-b355-4b25d72418b8">in an Instagram post</a>.</p>
<p>Oher and Tyson – not to mention countless influencers and wannabe celebs – share the conviction that they own, and can monetize, their life stories. And given regular <a href="https://www.ibtimes.com/kurt-warner-movie-20th-century-fox-acquires-rights-former-qbs-life-story-plans-film-adaptation">news stories about studios buying</a> “life story rights,” it’s not surprising to see why. </p>
<p>As law professors, we’ve studied this issue; <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4480628">our research shows</a> that there is no recognized property right under U.S. law – or the laws of any other country of which we are aware – to the facts and events that occur during someone’s life.</p>
<p>So why are Oher, Tyson and others complaining? And why do publishers and studios routinely pay large sums to acquire rights that don’t exist?</p>
<h2>No monopoly on the truth</h2>
<p>In most states, the commercial use of an individual’s name, image and likeness is protected by the so-called “<a href="https://rightofpublicityroadmap.com/">right of publicity</a>.” But that right generally applies to merchandise, apparel and product endorsements, not facts and actual events. So you can’t sell a T-shirt with Mike Tyson’s face on it without his permission, but writing a book about his rise to fame is fair game.</p>
<p>In the U.S., the freedom to describe historical events is rooted in <a href="https://constitution.congress.gov/browse/essay/amdt1-7-1/ALDE_00013537/">the free speech clause</a> of the First Amendment, and it’s a fundamental principle that no one – whether it’s a news agency, political party or celebrity – holds a monopoly on the truth.</p>
<p><a href="https://www.nytimes.com/2016/03/19/business/media/gawker-hulk-hogan-verdict.html">The law doesn’t sanction the invasion of privacy</a>, so an investigative journalist who uncovers some unsavory detail of your past can’t publish it unless there is a legitimate public interest in doing so. Nor does it condone the dissemination of false information, <a href="https://www.nytimes.com/live/2023/04/18/business/fox-news-dominion-trial-settlement">which can lead to defamation lawsuits</a>. </p>
<p>The First Amendment, however, does allow authors and film producers to truthfully depict factual events that they have legitimately learned about. They are not required to receive authorization from or pay the people involved.</p>
<h2>The origin of life story ‘rights’</h2>
<p>Film producers, however, are accustomed to paying for the right to repackage or use existing content. </p>
<p>Copyright licenses are required to commission a script based on a book, to depict a comic book character in a film and to include a hit song on a movie soundtrack. Even showing an architecturally distinctive building often requires the consent of a copyright owner, which is why the video game “Spider-Man: Miles Morales” <a href="https://www.ign.com/articles/spider-man-miles-morales-doesnt-have-the-chrysler-building-due-to-copyright-issues">had to remove the Chrysler Building</a>.</p>
<figure class="align-center ">
<img alt="Manhattan skyline with art deco skyscraper in the foreground." src="https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Studios hoping to include a shot of the Chrysler Building in their films might have to pony up.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-chrysler-building-stands-in-midtown-manhattan-january-9-news-photo/1079651514?adppopup=true">Drew Angerer/Getty Images</a></span>
</figcaption>
</figure>
<p>Along with these other rights and permissions, Hollywood studios have paid individuals for their life stories for at least a century. </p>
<p>Yet, unlike copyright clearances, life story deals do not involve the acquisition of known intellectual property rights. Life story “rights” are not rights at all. Instead, they bundle together a set of contractual commitments: the subject’s agreement to cooperate with the studio, not to work on a similar project, and to release the studio from claims of defamation and invasion of privacy. </p>
<p>By packaging these commitments under the umbrella of “life story rights,” studios can signal to the market that they have acquired a particularly juicy story. </p>
<p>For example, Netflix’s quick deal with convicted fraudster <a href="https://theconversation.com/how-scammers-like-anna-delvey-and-the-tinder-swindler-exploit-a-core-feature-of-human-nature-177289">Anna Sorokin</a>, the subject of the popular streaming series “<a href="https://www.imdb.com/title/tt8740976/">Inventing Anna</a>,” seems to have <a href="https://www.bbc.com/news/world-us-canada-56113478">deterred competing adaptations</a> of Sorokin’s story.</p>
<p>What’s more, the acquisition of life story rights has become so common that it is viewed, in many cases, as a de facto requirement for film financing and insurance coverage and thus part of the standard clearance procedure for many projects.</p>
<h2>Exceptions don’t make the rule</h2>
<p>As always with the law, though, there are exceptions. </p>
<p>Notably, the producers of the 2010 film “The Social Network” <a href="https://perma.cc/SN4H-UXAP">did not obtain the permission</a> of Facebook founder Mark Zuckerberg before dramatizing the origin story of his company. In moving forward with the project, they risked a defamation or publicity suit by Zuckerberg and others depicted in the film. But their gamble paid off: Zuckerberg, while <a href="https://perma.cc/SN4H-UXAP">critical of his depiction</a>, didn’t sue.</p>
<p>Nevertheless, other subjects who have been depicted in dramatic features without their authorization have sued to recover a share of the profits. </p>
<p>Silver screen legend Olivia de Havilland, for example, <a href="https://casetext.com/case/de-havilland-v-fx-networks-llc-1">sued FX Studios</a> for briefly depicting her in a miniseries about Hollywood rivals Bette Davis and Joan Crawford. She won at trial, though an appeals court reversed her victory, citing the producers’ First Amendment rights. </p>
<p>Lawsuits can even be brought when the characters’ names and story details have been changed. U.S. Army Sgt. Jeffrey Sarver, the bomb-defusing expert who inspired the Oscar-winning film “<a href="https://www.imdb.com/title/tt0887912/?ref_=nv_sr_srsg_0_tt_8_nm_0_q_the%2520hurt%2520locker">The Hurt Locker</a>,” <a href="https://casetext.com/case/sarver-v-chartier">sued the film’s producers</a> for violating his right of publicity. He lost.</p>
<p>Lawsuits like these are not the norm. But many producers hope to get ahead of a flimsy lawsuit and bad publicity by acquiring nonexistent rights.</p>
<h2>History is in the public domain</h2>
<p>Ultimately, there is nothing wrong – and much that is right – with paying individuals to cooperate with the production of features about themselves. Doing so can convey respect toward the subject and make the production go more smoothly. </p>
<p>But the fact that life story acquisitions have entered the popular consciousness has spurred the widespread belief that any portrayal of a factual series of events entitles those depicted to a lucrative payday. This expectation increases production costs and the risk of litigation, thereby deterring otherwise worthwhile projects and depriving the public of meaningful content that is based on true stories.</p>
<p>What could be done about this situation?</p>
<p>One idea <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4480628">that we’ve written about</a> would prevent right of publicity laws – the basis for many life story lawsuits – from being used against works that convey ideas and tell a story, such as books, films and TV shows.</p>
<p>Perhaps the most important thing that can be done, though, is educating people that they don’t have a right to cash in on every description of the events of their lives. </p>
<p>Collective history, in our view, belongs in the public domain.</p><img src="https://counter.theconversation.com/content/212242/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Publishers and studios routinely pay large sums to acquire ‘life story rights.’ Two law scholars explain why the phrase is misleading.Jorge L. Contreras, James T. Jensen Endowed Professor for Transactional Law and Director, Program on Intellectual Property and Technology Law, University of UtahDave Fagundes, Baker Botts LLP Professor of Law and Research Dean, University of Houston Law CenterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2123212023-08-28T12:02:05Z2023-08-28T12:02:05ZJack Smith’s requested gag order, like judicial orders restricting Trump’s speech, seeks to balance constitutional rights<figure><img src="https://images.theconversation.com/files/544796/original/file-20230825-21-k4cmur.jpg?ixlib=rb-1.1.0&rect=29%2C9%2C6531%2C4357&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Donald Trump continues to have − and to exercise − his free speech rights, even while under court orders.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpGeorgiaElectionIndictment/9e8e6926e871488ba5e629b9ff43291e/photo">AP Photo/Alex Brandon</a></span></figcaption></figure><p>In each of former President Donald Trump’s four indictments, he has been allowed to stay out of jail before his trial so long as he abides by certain conditions commonly applied to most people accused of crimes in the U.S.</p>
<p>In the federal case in Washington, D.C., that concerns Trump’s alleged efforts to overturn the 2020 election, Trump is under a protective order <a href="https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.28.0_5.pdf">barring him from speaking to people</a> involved in the case except through or with his lawyers. In a document unsealed on Sept. 15, 2023, special counsel Jack Smith has also asked the judge in that case to issue a <a href="https://www.npr.org/2023/09/15/1199932826/trump-election-case-gag-order-jack-smith">“narrow, well-defined” gag order</a> against Trump to protect witnesses and the jury pool. In the New York state case regarding alleged falsification of business records, Trump has been ordered “<a href="https://www.npr.org/2023/08/03/1191901829/trump-indictment-arraignment-news">not [to] communicate about facts of the case</a> with any individual known to be a witness, except with counsel or the presence of counsel.” In the federal case in Florida, about his handling of classified documents, he is <a href="https://www.documentcloud.org/documents/23846283-trump-bond-conditions">under a similar order</a>. </p>
<p>In the Georgia racketeering case about the alleged attempt to overturn the results of the 2020 presidential election, Trump’s bond agreement imposes limits like those imposed by the other judges and also says he <a href="https://www.cnn.com/2023/08/21/politics/read-trump-bond-agreement/index.html">may not intimidate or threaten anyone</a> involved in the case, including by posting on social media.</p>
<p><a href="https://www.nbcnews.com/politics/donald-trump/trump-says-protective-order-violates-first-amendment-rights-will-talk-rcna98881">Trump has objected</a> to all of these restraints, saying they <a href="https://www.usnews.com/news/politics/articles/2023-08-07/trumps-fine-legal-line-speaking-for-the-courtroom-and-the-campaign-trail">limit his First Amendment rights</a> to free speech – and in particular his right to discuss the cases while campaigning for the presidency.</p>
<p>As an attorney, professor and author of a <a href="https://press.uchicago.edu/ucp/books/book/distributed/W/bo156864042.html">book about the boundaries of the First Amendment</a>, I see all of those orders as efforts to, in fact, protect both Trump’s <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> speech rights and his rights under another part of the Constitution – the <a href="https://constitution.congress.gov/constitution/amendment-6/">Sixth Amendment</a>, which guarantees the right to a fair trial.</p>
<h2>Protecting Trump’s rights</h2>
<p>Key to a fair trial is the idea that the defendant is <a href="https://www.law.cornell.edu/wex/presumption_of_innocence">innocent until proven guilty</a>. That means the jury must be free of bias against either the defendant or the prosecution and open-minded to assessing guilt or innocence based on the evidence presented in court without regard to any outside influences. </p>
<p>All the orders Trump is subject to are designed to protect that presumption. To do so, they limit his ability to speak publicly about the cases against him, but they do so within the limits of the Constitution.</p>
<p>The federal protective order imposed by D.C. District Court Judge Tanya Chutkan ostensibly limits Trump’s ability to share evidence collected by the Department of Justice in its investigation of the conspiracy and obstruction crimes with which he is charged. However, in an Aug. 11, 2023, hearing, the judge made clear that she intends to safeguard the integrity of the proceedings both inside her courtroom and in the court of public opinion. To that end, she warned that all parties take “<a href="https://thehill.com/blogs/blog-briefing-room/news/4151513-trump-criticizes-judge-after-hes-warned-against-inflammatory-statements/">special care to avoid prejudicing the jury pool or intimidating witnesses</a>.”</p>
<p>The Georgia bond order adds specificity to that warning and bars Trump from making any direct or indirect threats by any manner, including posts and reposts to social media, against his co-defendants, unindicted co-conspirators, witnesses or victims of his alleged crimes.</p>
<p>These limits without doubt restrict Trump’s ability to speak freely – but they’ve been imposed because <a href="https://theconversation.com/trumps-free-speech-faces-court-ordered-limits-like-any-other-defendants-2-law-professors-explain-why-and-how-trumps-lawyers-need-to-watch-themselves-too-211459">his own actions led to criminal charges</a>. And the courts are bound to protect his constitutional right to defend himself before an unbiased jury, even if he prefers to speak more freely.</p>
<p>In any event, First Amendment rights have often been <a href="https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions">subject to restrictions</a> based on when, where and how a person speaks, for the purpose of balancing free speech with other competing social purposes. For instance, the reason someone may not yell “fire” in a crowded theater if there is not an actual fire is the resulting threat to everyone else’s safety. </p>
<p>Both the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment right to freedom of speech</a> and <a href="https://www.law.cornell.edu/constitution/sixth_amendment">the Sixth Amendment right to a fair trial</a> serve individual interests, but also the interests of society at large.</p>
<p>In Trump’s cases, the restrictions on his speech are to protect his right to a fair and impartial jury pool, as well as society’s right to hear testimony from witnesses who are not afraid to tell the truth. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/544798/original/file-20230825-29838-lh5qvo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a coat and tie stands in front of a microphone." src="https://images.theconversation.com/files/544798/original/file-20230825-29838-lh5qvo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/544798/original/file-20230825-29838-lh5qvo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/544798/original/file-20230825-29838-lh5qvo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/544798/original/file-20230825-29838-lh5qvo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/544798/original/file-20230825-29838-lh5qvo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/544798/original/file-20230825-29838-lh5qvo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/544798/original/file-20230825-29838-lh5qvo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former President Donald Trump says his free speech rights to campaign should overrule courts’ pretrial restrictions.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionInvestigationProsecutor/1ef8aca36a2544d08eb6c3cc36fb188f/photo">AP Photo/Butch Dill</a></span>
</figcaption>
</figure>
<h2>The courts of law and public opinion</h2>
<p>Trump has a right to speak – and the public has a right to be allowed to listen if they wish. In fact, the <a href="https://www.oyez.org/cases/1970/1873">audience’s rights</a> are often one key protection against censorship of a speaker. A criminal defendant’s First Amendment right to publicize his theory of the case protects not only his interests, but also the interests of the public, by serving as a check on overreaching by the prosecution or the judge.</p>
<p>However, the court of public opinion – in legal terms, <a href="https://www.law.cornell.edu/wex/forums">the public forum</a> – remains a relatively ungoverned space. A speaker can generally make all manner of statements, whether true or false, as long the statements do not incite lawless action or terror in the audience. </p>
<p>But the same is not true of the courtroom. Speech there is constrained by rules of evidence, which are designed to protect the principles and standards of the criminal justice system; “<a href="https://supreme.justia.com/cases/federal/us/314/252/">[l]egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper</a>,” as Supreme Court Justice Hugo Black put it in a 1941 ruling. In other words, a defendant’s Sixth Amendment right to be judged by an unbiased jury of their peers combines with the right of the public <a href="https://supreme.justia.com/cases/federal/us/501/1030/">to justice and fairness in court proceedings</a>.</p>
<p>Threats and intimidation targeted at participants in a criminal trial jeopardize the judicial system. Unfiltered evidence published outside of the courtroom <a href="https://www.nytimes.com/2023/08/07/us/politics/trump-indictment-protective-order.html">can hamper the abilities of all parties to move the case forward quickly</a>, affect testimony of witnesses at trial and infect the jury pool – making it difficult to find a group that will judge the case only upon evidence introduced at trial.</p>
<p>Trump has not been silenced. Even in the face of all four orders in place, and any gag order that might be issued, he still retains his First Amendment right to assert that the federal and state charges against him <a href="https://www.theguardian.com/us-news/2023/jun/13/trump-new-jersey-speech-after-arraignment">represent a miscarriage of justice</a>. He can demand scrutiny of the motivations behind his prosecutions. However, he may not use that right to subvert society’s constitutionally protected right to the integrity of the criminal justice system. First Amendment protections are not absolute; simply because someone <a href="https://www.oyez.org/cases/1967/232">seeks to communicate does not guarantee its full protection</a>. It is not his thoughts and opinions that are being restricted by the protective order or the bond order – it is the manner in which he expresses them.</p>
<p>At the conclusion of the proceedings, of course, many of the speech restrictions will be lifted, and Trump can speak his piece with the megaphone that the press is sure to provide.</p>
<p><em>This is an updated version of an article originally published Aug. 28, 2023.</em></p><img src="https://counter.theconversation.com/content/212321/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lynn Greenky does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trump has not been silenced. The limits on his speech protect fundamental rights − including his right to a fair trial by an unbiased jury and the public’s right to a working justice system.Lynn Greenky, Professor Emeritus of Communication and Rhetorical Studies, Syracuse UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2116892023-08-16T14:14:02Z2023-08-16T14:14:02ZUnderstanding why burning the Qur’an isn’t illegal in Sweden means looking at the country’s long-held commitment to freedom of expression<p>To people outside Sweden it may seem surprising that police have, on several recent occasions, granted people express permission to burn copies of the Qur’an in public. The incidents have caused upset and triggered a significant debate about the far right co-opting the right to free speech to spread hate for political gain. </p>
<p>But the fact that permits have been granted for these acts does not mean that Swedish authorities celebrate the message or even endorse it. Rather, it reflects the central role freedom of expression plays in the national constitution. </p>
<p>To fully understand this debate, one needs to look back at the history of Sweden’s commitment to freedom of expression.</p>
<h2>A pioneering law</h2>
<p>Starting in school, Swedish students learn about a period of parliamentary history between 1719 and 1772 called “the age of liberty”. This marked the end of autocratic monarchy and the beginning of an era of parliamentary power – a shift triggered by the death of the great warrior king, Karl XII (Charles XII), who had, despite a history of successful warfare, been defeated by Russia in Poltava 1709 and thereafter killed in combat in Norway, 1718.</p>
<p>This was a period of large-scale legislative projects and freedom of speech became central to the idea of freedom from tyranny. The most important piece of legislation was the <a href="https://www.riksdagen.se/sv/dokument-och-lagar/dokument/svensk-forfattningssamling/tryckfrihetsforordning-1949105_sfs-1949-105/">Freedom of the Press Act of 1766</a>, a law that aimed to protect freedom of information as a means of promoting democracy. </p>
<p>It has been amended since but its tenets remain the same. These tenets include a principle of “responsible publisher” (which means that the whole responsibility for a publication such as a newspaper lies on one single person – often the editor in chief), and a far-reaching protection for whistle blowers.</p>
<p>In 1990, the Freedom of the Press Act was followed by a <a href="https://www.government.se/articles/2023/01/freedom-of-expression-and-freedom-to-demonstrate-in-sweden/#:%7E:text=Freedom%20of%20expression%20in%20Sweden,without%20interference%20by%20the%20authorities.">Freedom of Expression Act</a>. This extended the protection of freedom of expression from the printed press to more modern forms of expression – radio, TV and some digital media (although not many forms of the latter from a contemporary perspective). </p>
<p>These constitutional statutes provide the world’s most far-reaching protection for media. It not only covered criminal responsibility but also private law. <a href="https://www.bbc.co.uk/news/world-us-canada-61673676">Johnny Depp</a> would not have had a case in Sweden against Amber Heard for her article in a newspaper, to use a current example. She would have been free to write her views about him without being sued.</p>
<p>In addition to the two freedom of expression statutes, Sweden has two other basic laws, the government code and the Act on Succession. These four basic laws together form the <a href="https://www.riksdagen.se/en/how-the-riksdag-works/democracy/the-constitution/">Swedish constitution</a>. The most important act is the government code. It includes a chapter on basic human rights and freedoms, in many aspects similar to human rights catalogues in international law (such as the UN charter and the European convention) and different national laws.</p>
<p>An important difference between the Swedish human rights catalogue and those in other jurisdictions is that the first rule is on the protection of freedom of expression. This is broadly defined and includes freedom of speech, freedom of information, freedom of assembly, freedom of demonstration, freedom of association and freedom of religion. It is notable that this rule comes before rules protecting the right to life, privacy or ownership.</p>
<p>In Swedish legal culture, freedom of expression thus has a peculiar role as a superior human right. In legal cases, there is often a presumption in favour of protecting freedom of expression over other interests or values – such as privacy or honour.</p>
<p>This is also reflected in general criminal law. There are, as in all jurisdictions, many restrictions on freedom of expression in criminal law. It is unlawful to threaten, defame or harass. It is also unlawful to distribute child pornography, show sexual violence in public or to provoke a mob to attack someone. But the restrictions are often limited in scope.</p>
<h2>How the law deals with hate speech</h2>
<p>Sweden does not have a specific rule on hate speech. Instead there are three provisions that are considered as hate speech legislation. A provision in the criminal code states that when someone commits a crime with a hate motive, the punishment may be harsher. If someone tries to burn down a mosque because it is a mosque the punishment is more severe than if someone tries to burn down her school because it is her school, for example.</p>
<p>A second, infrequently used, provision in the same code prohibits unlawful discrimination. This is not to say that discrimination is not penalised, but it is more often handled within the civil law system rather than criminal law. The third provision that belongs to the hate speech category is named “incitement against an ethnic group”.</p>
<p>Incitement against an ethnic group has been central in the discussion of Qur’an burning in Sweden. It is the only criminal law rule that provides an opening for bringing charges against the people involved in these actions.</p>
<p>“Incitement against an ethnic group” has a misleading name because the rule does not, in fact, focus on “incitement” but on derogatory or defamatory comments against a group. It also protects not only ethnic groups but also religious groups. </p>
<p>Describing Muslims, to allude to the situation of the Qur’an burnings, as criminals would be criminal. But to burn the Qur’an is in itself not, according to the current formulation of the law, an attack on Muslims. It is rather seen as an attack on the religion of Islam. Such attacks are not illegal because the aim of the attack is not directed against a protected group of people but against a belief – an idea. That is not illegal.</p>
<p>In one of the most secular countries in the world, with a more than 250-year-old tradition of giving freedom of expression priority before all other interests, the presumption is that every expression is allowed. Even expressions that offend people. The current situation is not a bug of the Swedish legal system. It’s a feature.</p><img src="https://counter.theconversation.com/content/211689/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mårten Schultz is affiliated with The Swedish Law and Internet Institute, a non-profit, non-political organization that works with freedom of speech issues on the Internet. He has several assignments for Government agencies, including The National Media Council (Statens Medieråd), The Crime Victim Authority (Brottsoffermyndigheten) and The Equality Ombudsman (Diskrimineringsombudsmannen). </span></em></p>The legal context behind a political controversy.Mårten Schultz, Professor of Civil Law, Stockholm UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2074652023-07-27T12:25:41Z2023-07-27T12:25:41ZProgressives’ embrace of Disney in battle with DeSantis over LGBTQ rights comes with risks<figure><img src="https://images.theconversation.com/files/537918/original/file-20230717-248134-k6gf9e.jpg?ixlib=rb-1.1.0&rect=198%2C34%2C5550%2C3792&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Is Disney really a 'woke' corporation? </span> <span class="attribution"><span class="source">AP Photo/Phelan M. Ebenhack</span></span></figcaption></figure><p>The battle between The Walt Disney Co. and Florida Gov. Ron DeSantis over LGBTQ rights and whether those rights should be acknowledged – let alone taught – in schools has spurred an unlikely alliance between progressives and one of the world’s biggest entertainment companies.</p>
<p>Progressive groups such as <a href="https://www.hrc.org/press-releases/human-rights-campaign-responds-to-governor-desantis-revoking-disneys-tax-exempt-status">The Human Rights Campaign</a> have welcomed Disney to their cause, while progressive columnists at <a href="https://www.thedailybeast.com/disneys-going-to-school-ron-desantis-about-free-speech">The Daily Beast</a> and <a href="https://www.msnbc.com/opinion/msnbc-opinion/desantis-disney-first-amendment-rights-unconstitutional-rcna81974">MSNBC</a> have cheered Disney’s recent lawsuit against DeSantis. The suit, <a href="https://apnews.com/article/desantis-disney-president-theme-park-takeover-99615be881a55d559f7543b2dc2e9dea">filed in April 2023</a>, alleges that DeSantis <a href="https://www.washingtonpost.com/business/2023/04/26/desantis-disney-lawsuit/">violated the company’s free speech rights</a> by retaliating against Disney for <a href="https://apnews.com/article/bob-chapek-ron-desantis-china-florida-arts-and-entertainment-26579ee78b3d48fb997ddfba025cf822">opposing a Florida education law</a> that would prevent teachers from instructing early grades on LGBTQ issues.</p>
<p>DeSantis <a href="https://www.usatoday.com/story/opinion/2023/05/05/desantis-disney-fight-woke-corporations-political-pr-stunt/70178803007/">has decried Disney</a> as a “woke” company and sought to punish the media conglomerate by <a href="https://www.politico.com/news/2022/04/22/desantis-disney-special-status-dont-say-gay-00027302">stripping the company of its powers</a> to control development in and around Disney World in Orlando.</p>
<p>While joining forces with corporations to achieve political ends can be advantageous, given their tremendous resources, it also poses risks for progressives, who may suffer setbacks when their principles no longer align with corporate profits. Just look at how quickly <a href="https://www.nytimes.com/2023/04/25/business/bud-light-dylan-mulvaney.html">Bud Light backed away</a> from a transgender social media influencer promoting the beer when conservatives threatened boycotts and sales slipped. Before the backlash, a top marketing executive had said the brand <a href="https://www.nytimes.com/article/bud-light-boycott.html">needed to become more inclusive</a>; afterward Bud Light said it would focus marketing on sports and music.</p>
<p>I am a <a href="https://clas.iusb.edu/political-science/faculty/steven.html">professor of political science</a> who studies corporate political rights and <a href="https://scholar.google.com/citations?hl=en&user=0RflZR8AAAAJ&view_op=list_works&sortby=pubdate">the role corporations play in the public square</a>. Disney v. DeSantis raises questions of how advocates of free speech and democracy should approach a situation when a corporation joins their side.</p>
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<h2>Power to persuade</h2>
<p>Business interests have long tried to influence public policy, even before the landmark Supreme Court decision <a href="https://www.fec.gov/legal-resources/court-cases/citizens-united-v-fec/">Citizens United v. FEC</a> lifted restrictions on corporate spending on elections. Corporations spend <a href="https://www.opensecrets.org/news/2023/01/federal-lobbying-spending-reaches-4-1-billion-in-2022-the-highest-since-2010/#:%7E:text=Federal%20lobbying%20spending%20reaches%20%244.1%20billion%20in%202022%20%E2%80%94%20the%20highest%20since%202010,-By%20Taylor%20Giorno">billions of dollars each year</a> to lobby Congress and <a href="https://www.opensecrets.org/news/reports/layers-of-lobbying">billions more lobbying state legislators</a>. They <a href="https://www.nytimes.com/2016/08/08/us/politics/think-tanks-research-and-corporate-lobbying.html">finance think tanks and foundations</a> that promote their views and interests. They place “advertorials” in local newspapers’ op-ed pages.</p>
<p>Citizens United, decided in 2010, cemented corporations’ right to participate in politics. The high court ruled that <a href="https://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/">political spending amounts to protected speech</a>, and governments cannot infringe on corporations’ right to free speech by limiting the money companies can spend to influence voters through advertising and other means.</p>
<p>Progressives have <a href="https://www.brennancenter.org/issues/reform-money-politics/campaign-finance-courts/citizens-united">blasted the decision</a> for unleashing torrents of corporate cash that they say is corrupting the political system.</p>
<p>Ironically – at least for progressives – Disney’s lawsuit against DeSantis is based in part on the <a href="https://www.brennancenter.org/our-work/research-reports/citizens-united-explained">Citizens United Supreme Court ruling</a> and the free speech rights it established for corporations. In the statement that caused trouble with DeSantis, Disney <a href="https://www.cnbc.com/2022/03/28/disney-vows-to-help-repeal-dont-say-gay-law.html">showed itself a reasonable partner</a> for advocates of LGBTQ rights.</p>
<p>The statement went beyond just criticizing the legislation. Disney vowed to help overturn the law, which critics derided as “Don’t say gay.”</p>
<p>“Our goal as a company is for this law to be repealed by the legislature or struck down in the courts,” the company <a href="https://thewaltdisneycompany.com/statement-from-the-walt-disney-company-on-signing-of-florida-legislation/">said in the statement</a>. “We remain committed to supporting the national and state organizations working to achieve that.”</p>
<p>Disney has since demonstrated its willingness to use its resources and power to take on DeSantis over the issue of LGBTQ rights, including filing the lawsuit, which centers on Disney’s advocacy against the Florida law. In May, Disney <a href="https://www.nytimes.com/2023/05/18/business/disney-ron-desantis-florida.html">canceled a US$1 billion office project</a> in Orlando that would have brought an estimated 2,000 jobs to Florida.</p>
<p>These actions show the extraordinary resources that corporations can bring to bear in support of political causes, and progressives have welcomed these resources in advancing their issues. For example, many progressives supported Major League Baseball when it moved <a href="https://www.reuters.com/article/us-usa-georgia-voting-companies-idUSKBN2BN1M9">its 2021 All-Star Game from Atlanta</a> to protest Georgia’s restrictive voting laws and lauded two Atlanta-based companies, Coca-Cola and Delta Air Lines, for their support of MLB.</p>
<figure class="align-center ">
<img alt="a man wearing a rainbow flag cape holds a pro-trans sign in front of a mickey logo" src="https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/537914/original/file-20230717-27-6cqk0m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Before coming out against DeSantis’ bill, Disney stayed quiet, which prompted some employees to stage a protest in early 2022.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/APTOPIXDisneyWalkout/3ca1bc6c33c243f5aca44e293bd324c4/photo?Query=disney%20lgbtq&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=16&currentItemNo=6">AP Photo/Phelan M. Ebenhack</a></span>
</figcaption>
</figure>
<h2>Politics and profits</h2>
<p>But progressives’ efforts to harness the powers of global companies come with risks. </p>
<p>Corporations’ loyalties tend to <a href="https://www.marketplace.org/2022/04/25/how-shareholders-jumped-to-first-in-line-for-profits-rerun/">lie with profits and shareholders</a>, and the political principles that companies embrace may get quickly discarded when profits are threatened. The <a href="https://www.reuters.com/business/sustainable-business/vanguard-quits-net-zero-climate-alliance-2022-12-07/">Vanguard Group’s retreat from the Net Zero Asset Managers initiative</a> to reduce carbon emissions when it felt pressure from investors reveals this vulnerability.</p>
<p>Political alliances, of course, can shift as circumstances change. Sen. Lindsey Graham, Republican of South Carolina, branded candidate Donald Trump as a <a href="https://www.youtube.com/watch?v=2bkDykGhM8c">“race-baiting, xenophobic, religious bigot”</a> in 2015 but became one of the former president’s <a href="https://www.nytimes.com/2019/02/25/magazine/lindsey-graham-what-happened-trump.html">staunchest supporters following Trump’s election</a> in 2016.</p>
<p>Corporations are not unlike other players in the political sphere. As the previous examples show, most groups or people – whether businesses, advocates or political leaders – will pursue their own interests and adjust their positions to achieve them.</p>
<p>But because corporations are market-oriented, they can be even more inconsistent allies than is usually the case with politicians, parties and interest groups. </p>
<p>Target Corp., for example, <a href="https://www.nytimes.com/2023/05/25/business/target-pride-lgbtq-companies-backlash.html">altered some displays and merchandise</a> promoting Pride month – the annual celebration of the LGBTQ community – after a backlash from some customers. </p>
<p>The graver danger comes if corporations take actions or positions inimical to those of their allies and turn corporate power and resources to positions contrary to the groups with which they are momentarily aligned. Thus, conservatives were staggered to learn that Chick-fil-A, a reliable supporter of conservative causes, <a href="https://thehill.com/homenews/4026001-chick-fil-a-dei-hire-sparks-calls-for-boycott/">hired a vice president of diversity, equity and inclusion</a>. They even threatened to boycott the fast-food restaurant chain. </p>
<p>Progressives would be naive to reject the power and influence of corporations when their interests intersect, as they have in Disney v. DeSantis. They would be just as naive to assume that corporations would consistently support a cause or treat employees, customers or the communities in which they operate with fairness because of laudable positions on public policies.</p>
<p>Corporate interests – including profits, share prices, customer bases and employee relations – are the primary drivers of business decisions, not a commitment to the range of progressive issues from racial diversity to LGBTQ rights to climate change that critics deride as “<a href="https://www.nytimes.com/2023/03/24/upshot/woke-meaning-democrats-republicans.html">wokeness</a>.” So, while DeSantis and other conservatives may sound alarms about Disney and <a href="https://www.nbcnews.com/politics/2022-election/disney-desantis-finds-corporate-foil-rcna22545">the rise of the “woke” corporation</a>, in reality there may be no such thing.</p><img src="https://counter.theconversation.com/content/207465/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Steven Gerencser does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Progressives have cheered Disney in its battle with Florida Gov. Ron DeSantis over LGBTQ rights. But joining forces with corporations poses risks when principles no longer align with profits.Steven Gerencser, Professor of Political Science, Indiana UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2093072023-07-11T12:31:02Z2023-07-11T12:31:02ZAnti-LGBTQ laws in the US are getting struck down for limiting free speech of drag queens and doctors<figure><img src="https://images.theconversation.com/files/536643/original/file-20230710-19-wlbok3.jpeg?ixlib=rb-1.1.0&rect=14%2C14%2C4656%2C3032&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anti-LGBTQ laws passed in 2023 included measures to deny gender-affirming care to trans children.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/participant-carries-sign-reading-end-the-attacks-on-trans-news-photo/1497769172?adppopup=true">Mario Tama/Getty Images</a></span></figcaption></figure><p>Nearly 500 anti-LGBTQ bills have been introduced in state <a href="https://www.aclu.org/legislative-attacks-on-lgbtq-rights">legislatures in the U.S. in 2023</a>. Many of those bills seek to <a href="https://time.com/6265755/gender-affirm-care-bans-u-s">reduce or eliminate gender-affirming care</a> for transgender minors or to <a href="https://people.com/politics/anti-drag-legislation-united-states/">ban drag performances</a> in places where minors could view them.</p>
<p>Most of those bills have not become law. But many of those that have did not survive legal scrutiny when challenged in court. </p>
<p>Anti-LGBTQ laws that federal judges have concluded do not pass constitutional scrutiny include <a href="https://apnews.com/us-news/arkansas-gender-general-news-2a0d032f4e4f3195c180d879239e6521">anti-trans legislation in Arkansas</a> and <a href="https://theconversation.com/why-a-federal-judge-found-tennessees-anti-drag-law-unconstitutional-207102">anti-drag legislation in Tennessee</a>. </p>
<p>A notable feature of these rulings for me - a <a href="https://clasprofiles.wayne.edu/profile/hf1190">First Amendment scholar</a> – is how many rely on the First Amendment’s protection of free speech. In several of the decisions, judges <a href="https://www.aclu.org/cases/southern-utah-drag-stars-llc-v-city-of-st-george?document=Decision-%26-Order-Granting-Preliminary-Injunction#legal-documents">used harsh language</a> to describe what they deemed to be assaults on a fundamental American right.</p>
<p>Here’s a summary of some of the most notable legal outcomes: </p>
<h2>Drag performances</h2>
<p><a href="https://www.yahoo.com/entertainment/montana-just-taken-tennessee-florida-202300729.html">Several states</a> passed laws aimed at restricting drag performances. These laws were quickly challenged in court. So far, judges have sided with those challenging these laws.</p>
<p>On June 2, 2023, a federal judge <a href="https://www.govinfo.gov/content/pkg/USCOURTS-tnwd-2_23-cv-02163/pdf/USCOURTS-tnwd-2_23-cv-02163-0.pdf">permanently enjoined</a> <a href="https://theconversation.com/why-a-federal-judge-found-tennessees-anti-drag-law-unconstitutional-207102">Tennessee’s attempt to limit drag performances</a> by restricting “adult entertainment” featuring “male or female impersonators.” When a law is permanently enjoined, it can no longer be enforced unless an appeals court reverses the decision.</p>
<p>The judge ruled on broad grounds that Tennessee’s law violated freedom of speech, writing that it “reeks with constitutional maladies of vagueness and overbreadth fatal to statutes that regulate First Amendment rights.” He also ruled that the law was passed for the “impermissible purpose of chilling constitutionally-protected speech” and that it engaged in viewpoint discrimination, which occurs when a law regulates speech from a disfavored perspective.</p>
<p>Three weeks later, a federal judge granted a <a href="https://www.politico.com/f/?id=00000188-e989-d144-a5bc-ebfdfb4f0000">temporary injunction</a> against Florida’s anti-drag law on similar broad grounds. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/536645/original/file-20230710-15-yb9weh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A billboard advertising Florida as the 'Sunshine State,' but with 'on't say gay or trans' superimposed on the word 'sunshine.'" src="https://images.theconversation.com/files/536645/original/file-20230710-15-yb9weh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/536645/original/file-20230710-15-yb9weh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536645/original/file-20230710-15-yb9weh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536645/original/file-20230710-15-yb9weh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536645/original/file-20230710-15-yb9weh.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536645/original/file-20230710-15-yb9weh.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536645/original/file-20230710-15-yb9weh.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">In June 2023, a federal judge temporarily stopped a Florida anti-drag law from being enforced.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AntiLGBTQBillsMissouri/f447497fd63245cb908d159090d2cbdf/photo?Query=anti%20trans%20%20florida&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=2&currentItemNo=1">AP Photo/John Raoux, File</a></span>
</figcaption>
</figure>
<p>And in Utah, a federal judge required the city of St. George <a href="https://www.aclu.org/cases/southern-utah-drag-stars-llc-v-city-of-st-george?document=Decision-%26-Order-Granting-Preliminary-Injunction#legal-documents">to grant a permit for a drag show</a>, ruling that the city had applied an ordinance in a discriminatory manner in order to prevent the family-friendly drag show from happening. As in the other cases, the judge’s ruling was based on First Amendment precedent. </p>
<h2>Gender-affirming care</h2>
<p>On June 20, 2023, a federal judge <a href="https://www.washingtonpost.com/documents/bba3e597-4f39-4420-bd43-b974466a98a4.pdf?itid=lk_inline_manual_15">permanently enjoined an Arkansas law</a>, passed in 2021 over the veto of then-Gov. Asa Hutchinson, preventing transgender minors from receiving various kinds of gender-affirming medical care, including puberty blockers and hormone therapy.</p>
<p>The judge held that Arkansas’ law violated the Fourteenth Amendment’s equal protection clause – which ensures laws are applied equally regardless of social characteristics like race or gender – because the law discriminated on the basis of sex.</p>
<p>Arkansas claimed its law was passed in order to protect children and to safeguard medical ethics. The judge agreed that these were legitimate state interests, but rejected Arkansas’ claim that its law furthered those ends.</p>
<p>The judge also held that Arkansas’ law violated the First Amendment free speech rights of medical care providers because the law would have prevented them from providing referrals for gender transition medical treatment.</p>
<p>During June 2023, federal judges in <a href="https://apnews.com/article/transgender-health-desantis-florida-033556c6a4c301d9ad342c74a6410800">Florida</a> and <a href="https://apnews.com/article/transgender-care-ban-indiana-lawsuit-3d9a3a456d7c0a06941f02e8998a6f56">Indiana</a> granted temporary injunctions against enforcement of similar state laws. This means that these laws cannot be enforced until a full trial is conducted – and only if that trial results in a ruling that these laws are constitutional.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/536672/original/file-20230710-29-8auxbt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A protester inside the Indiana Statehouse advocating against passage of a bill banning gender transition procedures for minors." src="https://images.theconversation.com/files/536672/original/file-20230710-29-8auxbt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/536672/original/file-20230710-29-8auxbt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/536672/original/file-20230710-29-8auxbt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/536672/original/file-20230710-29-8auxbt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/536672/original/file-20230710-29-8auxbt.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/536672/original/file-20230710-29-8auxbt.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/536672/original/file-20230710-29-8auxbt.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A protester inside the Indiana Statehouse advocating against passage of a bill banning gender transition procedures for minors.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/protester-holds-a-placard-that-says-trans-medicine-saves-news-photo/1247430227?adppopup=true">Jeremy Hogan/SOPA Images/LightRocket via Getty Images</a></span>
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<h2>Free speech for the LGBTQ community</h2>
<p>In striking down these unconstitutional state laws on First Amendment grounds, many judges went out of their way to reinforce the point that freedom of speech protects views about sexual orientation and gender identity that may be unpopular in conservative areas. </p>
<p>In his ruling on the St. George, Utah case, U.S. District Judge <a href="https://www.aclu.org/cases/southern-utah-drag-stars-llc-v-city-of-st-george?document=Decision-%26-Order-Granting-Preliminary-Injunction#legal-documents">David Nuffer stressed that</a> “Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.”</p>
<p>Nuffer also noted that “Public officials and the city governments in which they serve are trustees of constitutional rights for all citizens.” Protecting the constitutional rights of all citizens includes protecting the constitutional rights of members of the LGBTQ community and of other gender-nonconforming people.</p>
<p>Free speech rights also extend to those who want to use speech in order to help promote the well-being of LGBTQ people. In ruling that <a href="https://www.washingtonpost.com/documents/bba3e597-4f39-4420-bd43-b974466a98a4.pdf?itid=lk_inline_manual_15">Arkansas’ law violated the First Amendment</a>, Judge Jay Moody stated that the state law “prevents doctors from informing their patients where gender transition treatment may be available” and that it “effectively bans their ability to speak to patients about these treatments because the physician is not allowed to tell their patient where it is available.” For this reason, he held that the law violated the First Amendment.</p>
<p>As additional anti-LGBTQ state laws are challenged in court, judges are likely to continue to use the First Amendment to show how such laws fail to respect Americans’ fundamental free speech rights.</p><img src="https://counter.theconversation.com/content/209307/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Satta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A number of judges who considered challenges to anti-LGBTQ legislation passed by state lawmakers in 2023 had strong words for how the laws violated the First Amendment.Mark Satta, Assistant Professor of Philosophy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2070732023-07-01T00:03:38Z2023-07-01T00:03:38ZA business can decline service based on its beliefs, Supreme Court rules – but what will this look like in practice?<figure><img src="https://images.theconversation.com/files/535089/original/file-20230630-15-48437j.jpg?ixlib=rb-1.1.0&rect=9%2C15%2C2108%2C1393&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Designing for all couples -- or declining?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/cyber-love-royalty-free-image/522854467?phrase=wedding+rings+computer&adppopup=true">DawidMarkiewicz/iStock via Getty Images Plus</a></span></figcaption></figure><p>At issue in one of this year’s most highly anticipated Supreme Court cases, <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">303 Creative v. Elenis</a>, was what happens when someone’s free speech or beliefs conflict with others’ rights. Specifically, 303 Creative addressed whether a Colorado anti-discrimination law can require a designer who believes marriage is only between a man and a woman to create a wedding website for a same-sex couple.</p>
<p>Two years ago, the 10th Circuit Court of Appeals <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">affirmed that the answer was “yes</a>.”</p>
<p>But on June 30, 2023, a bitterly divided Supreme Court <a href="https://www.oyez.org/cases/2022/21-476">reversed that judgment</a>, holding 6-3 that <a href="https://constitution.congress.gov/constitution/amendment-1/">the free speech clause of the First Amendment</a> prohibited state officials from requiring the designer to create a website that communicates a message with which she disagrees.</p>
<p>As <a href="https://udayton.edu/directory/education/eda/russo_charles.php">a professor of law</a> who pays particular attention to First Amendment issues involving freedom of religion and speech, I see the case highlighting tension between two competing fundamental interests – ones that clash routinely in 21st century America.</p>
<h2>Compelled speech?</h2>
<p>The underlying dispute involves graphic artist Lorie Smith, the founder and owner of a studio called <a href="https://303creative.com/about/">303 Creative</a>. According to court documents, Smith will work with clients of any sexual orientation. However, she will not create content that goes against her religious beliefs, such as “that marriage is a union between one man and one woman.”</p>
<p>Conflict arose when Smith challenged <a href="https://ccrd.colorado.gov/ccrd-home/regulatory-information">Colorado’s Anti-Discrimination Act</a>, under which it is discriminatory and illegal to refuse services to someone based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.” </p>
<p>In 2016, Smith unsuccessfully sued the members of <a href="https://www.denverpost.com/2016/09/21/colorado-lawsuit-says-law-promotes-same-sex-marriage/">the state’s Civil Rights Commission and Colorado’s attorney general</a>. She and her attorneys argued that creating a website counts as an act of speech, and so being required to prepare a same-sex wedding website would violate her First Amendment rights: The law would force her to speak, legally referred to as “compelled speech.”</p>
<p>Smith and her attorneys also claimed that requiring her to create a website would violate her First Amendment right to <a href="https://constitution.congress.gov/constitution/amendment-1/">the free exercise of religion</a>.</p>
<p>The <a href="https://casetext.com/case/303-creative-llc-v-elenis-1">federal trial court</a> in Colorado rejected Smith’s attempt to block enforcement of the anti-discrimination law in 2019. When she appealed, a split <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">10th Circuit affirmed</a> that Smith could not refuse to create websites for same-sex weddings, even if it would have gone against her beliefs. Protecting diverse viewpoints, <a href="https://casetext.com/case/303-creative-llc-v-elenis-3">in the court’s opinion</a>, was a “good in and of itself,” but combating discrimination “is, like individual autonomy, ‘essential’ to our democratic ideals.” </p>
<p>In <a href="https://cases.justia.com/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.pdf?ts=1627336853">a lengthy dissent</a>, the chief judge of the 10th Circuit focused on compelled speech. He criticized the panel for taking “the remarkable – and novel – stance that the government may force Ms. Smith to produce messages that violate her conscience.”</p>
<h2>SCOTUS speaks</h2>
<p>The Supreme Court agreed to hear Smith’s case but limited the issue to free speech, sidestepping the dispute over the free exercise of religion. The <a href="https://www.supremecourt.gov/docket/docketfiles/html/qp/21-00476qp.pdf">question before the court</a> was “whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A small crowd of people in coats walk cheerfully down the steps of a building with large pillars." src="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535090/original/file-20230630-37825-y2xpsk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lorie Smith, center in pink, walks out of the Supreme Court on Dec. 5, 2022, after the high court heard oral arguments in her case.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/lorie-smith-a-christian-graphic-artist-and-website-designer-news-photo/1245399590?adppopup=true">Kent Nishimura/Los Angeles Times via Getty Images</a></span>
</figcaption>
</figure>
<p>Writing for the majority, Justice Neil Gorsuch noted that “First Amendment protections belong to all, not just to speakers whose motives the government finds worthy.” </p>
<p>Gorsuch reviewed the Supreme Court’s cases protecting the rights of individuals not to express themselves. In 1943’s <a href="https://www.law.cornell.edu/supremecourt/text/319/624">West Virginia Board of Education v. Barnette</a>, for example, the court declared that public officials could not compel students who were Jehovah’s Witnesses to salute the flag, because doing so violated their religious beliefs.</p>
<p>While noting the “vital role public accommodations laws play in realizing the civil rights of all Americans,” <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">Gorsuch reasoned</a> that Colorado could not “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” </p>
<p>Further, Gorsuch harshly criticized the dissenting justices’ argument that Colorado’s law focused on business owners’ conduct, not speech, contending that the dissent sidesteps a key question: whether a state can “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?”</p>
<p>Justice Sonia Sotomayor, <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">whose dissent was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson</a>, lamented the majority’s decision as a time when there is “backlash to the movement for liberty and equality for gender and sexual minorities.” </p>
<p>Sotomayor then argued that under Colorado’s anti-discrimination law, Smith’s “freedom of speech <a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">is not abridged</a> in any meaningful sense, factual or legal.” If Smith wants to “advocate the idea that same-sex marriage betrays God’s laws,” Sotomayor made it clear that she can. </p>
<p>Sotomayor went on to decry the ruling for symbolically “mark(ing) gays and lesbians for second-class status.” Denying services to same-sex couples “reminds LGBT people of a painful feeling that they know all too well,” she wrote. “There are some public places where they can be themselves, and some where they cannot.”</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Half a dozen somber-looking people stand at the front of a room during a press conference." src="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/535091/original/file-20230630-41655-70lubj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Religious leaders and Colorado Attorney General Phil Weiser hold a press conference in Denver following the Supreme Court’s decision in 303 Creative LLC v. Elenis.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/kurt-kaufman-ministerial-associate-at-first-baptist-church-news-photo/1373397545?adppopup=true">Hyoung Chang/The Denver Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Questions ahead</h2>
<p>To see how 303 Creative’s impact plays out, it is worth closely watching the parts of the U.S. with anti-discrimination statutes in place. As Justice Gorsuch noted, about half of all states have laws like Colorado’s that “<a href="https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf">expressly prohibit discrimination</a> based on sexual orientation.” More specifically, <a href="https://www.lgbtmap.org/equality-maps/non_discrimination_laws/public-accommodations">22 states, plus the Virgin Islands and Washington, D.C.</a>, offer various forms of protections for LGBTQ+ individuals – including retail stories, restaurants, parks, hotels, doctors’ offices and banks.</p>
<p>I believe 303 Creative presents a challenge for society to come to grips with the tension between two fundamental interests.</p>
<p>One is the Supreme Court’s affirmation of Smith’s key argument: that requiring her to prepare websites that go against her religious beliefs would violate her First Amendment right to freedom of speech.</p>
<p>The other is the interest of same-sex couples in hiring the services they wish – and simply to be treated equally in the eyes of the law, on par with any other potential customers.</p>
<p>Ensuring both freedom of speech and civil rights requires good-faith efforts at respect – and respect is a two-way street. However, exactly what this looks like will likely be the cause of more litigation to come.</p><img src="https://counter.theconversation.com/content/207073/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles J. Russo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A designer opposed to same-sex marriage argued that a Colorado anti-discrimination law would effectively force her to speak against her beliefs.Charles J. Russo, Joseph Panzer Chair in Education in the School of Education and Health Sciences and Research Professor of Law, University of DaytonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2077062023-06-22T20:07:19Z2023-06-22T20:07:19ZWho benefits most from the protection of free speech – the haves or the have-nots?<figure><img src="https://images.theconversation.com/files/533357/original/file-20230622-33216-dsgdgu.jpg?ixlib=rb-1.1.0&rect=0%2C40%2C6689%2C3450&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Getty Images</span></span></figcaption></figure><p>Whether it be repression of free speech under authoritarian regimes or instances of
“<a href="https://www.pewresearch.org/internet/2021/05/19/americans-and-cancel-culture-where-some-see-calls-for-accountability-others-see-censorship-punishment/">cancel culture</a>” in various countries, the importance of freedom of expression <a href="http://www.article19.org">is as hotly contested as ever</a>. But does freedom of speech benefit all groups equally?</p>
<p>In <a href="https://www.sciencedirect.com/science/article/pii/S0167268123002007">recently published research</a>, we tackled the question of who actually benefits the most from having freedom of speech. Is it people with the most resources – either income or education – who benefit more, or is it people with few resources?</p>
<p>The idea that those with resources benefit most falls in line with the “<a href="https://www.simplypsychology.org/maslow.html">hierarchy of needs</a>” developed by American psychologist Abraham Maslow. He argued that people would seek to meet their most pressing needs – such as food and shelter – before looking to achieve “luxuries” such as freedom of speech. </p>
<p>But the view that freedom of speech most benefits those with few resources is consistent with the idea that marginalised people have less scope to influence decisions in society through their spending or networks. They require freedom of speech to influence societal decisions.</p>
<h2>The right to say anything</h2>
<p>The principle of free speech was perhaps best illustrated in 1906 by the writer Evelyn Beatrice Hall, paraphrasing French philosopher Voltaire. She wrote:</p>
<blockquote>
<p>I disapprove of what you say, but I will defend to the death your right to say it.</p>
</blockquote>
<p>Free speech was entrenched as a right by the United Nations in Article 19 of its 1948 <a href="https://www.un.org/en/about-us/universal-declaration-of-human-rights">Universal Declaration of Human Rights</a>:</p>
<blockquote>
<p>Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.</p>
</blockquote>
<p>But it is recognised that even in countries with a high degree of free speech there may be restrictions against <a href="https://lawecommons.luc.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1040&context=facpubs">hate speech, terrorism and treason</a>. Following the Christchurch massacre, for example, the terrorist’s manifesto and video were classified as objectionable and <a href="https://www.dia.govt.nz/Response-to-the-Christchurch-terrorism-attack-video">banned from distribution in New Zealand</a>.</p>
<p>And, while the right to freedom of expression is enshrined in most constitutions, people in many countries face restrictions on their speech. During the recent coronation of King Charles, for example, <a href="https://newrepublic.com/article/172508/hold-coronation-britain-suppressed-free-speech-thats-insane">52 protesters in the United Kingdom were arrested</a> before their protest even started. This was criticised as an assault on their free speech. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/533360/original/file-20230622-25-z8x16t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Protesters were arrested during the King’s coronation, including pre-emptive arrests of anti-monarchy activists in London.</span>
<span class="attribution"><span class="source">Wiktor Szymanowicz/Getty Images</span></span>
</figcaption>
</figure>
<h2>Free speech and wellbeing</h2>
<p>Our research tested whether changes in countries’ restrictions on free speech were associated with rises or falls in the wellbeing of well-resourced people relative to poorly-resourced people in those countries.</p>
<p>The analysis included 300,000 individuals from more than 90 countries over a 40-year period. It used wellbeing and other individual data from the <a href="https://www.worldvaluessurvey.org/wvs.jsp">World Values Survey</a> and the <a href="https://www.latinobarometro.org/lat.jsp">Latino Barometer</a> survey. Wellbeing was measured by how people rate the overall quality of their life.</p>
<p>We supplemented the individual wellbeing data with measures of country-level free speech and human rights, sourced from two independently compiled databases (<a href="https://cirights.com/">CIRIGHTS</a> and <a href="https://v-dem.net/">VDEM</a>). Many countries in the surveys had marked changes in their free speech levels over the study period.</p>
<p>The research produced two key findings.</p>
<p>First, people with more resources place greater stated priority on freedom of speech (when asked to rank its importance).</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/oath-keepers-convictions-shed-light-on-the-limits-of-free-speech-and-the-threat-posed-by-militias-195616">Oath Keepers convictions shed light on the limits of free speech – and the threat posed by militias</a>
</strong>
</em>
</p>
<hr>
<p>Second, it was actually the people with fewer resources who benefited most from free speech. The results indicated that free speech empowered those with fewer resources, providing a greater lift to the wellbeing of more marginalised people.</p>
<p>The two results are not incompatible: people with fewer resources may need to prioritise basic needs more than “luxuries” such as free speech but, being in marginalised populations, they may still benefit most from having freedom of expression.</p>
<p>We also found that people who said they valued free speech benefited from living in countries with free speech. And, preferences towards free speech varied according to certain characteristics within the population (in addition to income and education). </p>
<p>Groups more likely to prioritise free speech included the young, students, non-religious people and those on the left of the political spectrum. Preferences also reflected country circumstances, with people in the West being more supportive of free speech than people in other regions of the world.</p>
<h2>In defence of the marketplace of ideas</h2>
<p>In a world in which freedom of speech is increasingly being placed at risk, it may become important to protect the “<a href="https://rdi.org/defining-democracy-marketplace-of-ideas/">marketplace for ideas</a>”. As 19th century thinker John Stuart Mill argued, ideas should “compete” in an open marketplace and be tested by the public to determine which ideas will prevail.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/there-are-differences-between-free-speech-hate-speech-and-academic-freedom-and-they-matter-124764">There are differences between free speech, hate speech and academic freedom – and they matter</a>
</strong>
</em>
</p>
<hr>
<p>Notwithstanding current risks with social media “<a href="https://www.pnas.org/doi/10.1073/pnas.2023301118">echo-chambers</a>”, this basic insight still has much to recommend it. People must be able to express their views and receive the views of others openly. </p>
<p>The UN Declaration of Human Rights emphasises this two-way aspect of freedom of expression – that is, people have “the right to seek, receive and impart information and ideas”.</p>
<p>Countries’ laws should reflect Hall’s insistence about freedom of expression – at a national level we should defend people’s right to say what they want. At a personal level, we should also respect the importance of being a good listener, even when, to paraphrase Hall, we disapprove of what is being said.</p><img src="https://counter.theconversation.com/content/207706/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Arthur Grimes received funding from Victoria University of Wellington and from Motu Research for this work.</span></em></p>New research highlights how the people who value free speech may not be the ones who benefit from it the most.Arthur Grimes, Professor of Wellbeing and Public Policy, Te Herenga Waka — Victoria University of WellingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2071022023-06-08T15:28:30Z2023-06-08T15:28:30ZWhy a federal judge found Tennessee’s anti-drag law unconstitutional<figure><img src="https://images.theconversation.com/files/530696/original/file-20230607-25-wckg1a.jpeg?ixlib=rb-1.1.0&rect=22%2C0%2C5051%2C3395&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A drag show in Nashville, Tenn., during Day One of Nashville Pride 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/general-view-of-drag-performances-on-the-equality-stage-news-photo/1405156791?adppopup=true">Mickey Bernal/Getty Images</a></span></figcaption></figure><p>The drag shows will go on. At least for now.</p>
<p>On June 2, 2023, Judge Thomas Parker, a Trump-appointed federal district court judge in western Tennessee, ruled that Tennessee’s “Adult Entertainment Act” <a href="https://storage.courtlistener.com/recap/gov.uscourts.tnwd.98391/gov.uscourts.tnwd.98391.91.0.pdf">violated the First Amendment’s free speech protection</a>. </p>
<p>The <a href="https://www.capitol.tn.gov/Bills/113/Amend/HA0011.pdf">act had been passed</a> by the Tennessee Legislature and signed into law by Tennessee Gov. Bill Lee in March 2023. The law gained <a href="https://www.cnn.com/2023/03/02/politics/tennessee-ban-drag-show-performances-governor/index.html">national attention</a> because it appeared designed to limit drag performances through regulation of “male and female impersonators.”</p>
<p>Parker provided several grounds for concluding that the law is unconstitutional. Using <a href="https://clasprofiles.wayne.edu/profile/hf1190">my experience as a First Amendment scholar</a>, below I explain how Judge Parker reached those conclusions and what they mean for Tennessee’s law. </p>
<h2>Speech protections</h2>
<p>The <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> of the U.S. Constitution protects, among other things, free speech. </p>
<p>As Parker noted at the beginning of his opinion, “Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.” </p>
<p>Freedom of speech protects more than just speech, in the colloquial sense. It also protects many other ways that people express themselves, such as by waving a flag, marching in a parade or dancing. </p>
<p>Drag shows typically consist of various forms of protected speech, like dancing, acting, lip-syncing, telling jokes and wearing elaborate outfits designed to send messages. Thus, any law seeking to limit drag performances raises important questions about whether that law violates the First Amendment.</p>
<p>Not all speech is protected by the First Amendment. Freedom of speech does not include the right to engage in, for example, perjury, defamation or threats of violence. </p>
<p>Freedom of speech also doesn’t protect the narrow category of legally defined obscenity. <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep413/usrep413015/usrep413015.pdf">According to the Supreme Court</a>, something is legally obscene only if, applying contemporary community standards, a reasonable person would find that the work, when viewed holistically, appeals to prurient interests, contains patently offensive content, and lacks any serious literary, artistic, political or scientific value. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A gray-haired man in a dark blazer, white shirt and red tie." src="https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Tennessee Gov. Bill Lee signed the drag ban legislation that was overturned by a federal judge.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DragBanTennessee/8fcbde14c72e49c9a02f145a10459f6b/photo?Query=Bill%20Lee%20Tennessee%20drag&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=2&currentItemNo=0">AP Photo/George Walker IV, File</a></span>
</figcaption>
</figure>
<p>Thus, as Parker noted, “there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law,” and the law imposes “an exceptionally high standard” for what counts as legally obscene. </p>
<p>The clearest example of sexually explicit material that does not receive First Amendment protection is <a href="https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-pornography">child pornography</a>. But the precise boundaries of what counts as legal obscenity are vague. Many kinds of sexually explicit material are not deemed legally obscene because it has often been relatively easy for litigants to convince modern courts that the material in question has serious literary, artistic, political or scientific value. </p>
<h2>Tennessee’s anti-drag law</h2>
<p>Tennessee’s <a href="https://www.capitol.tn.gov/Bills/113/Amend/HA0011.pdf">Adult Entertainment Act</a> would have made it a crime “to perform adult cabaret entertainment” on “public property” or anywhere it “could be viewed by a person who is not an adult.” </p>
<p>The act defined “adult cabaret entertainment” to include performances by “male or female impersonators” that are deemed “harmful to minors.” The act’s definition of “harmful to minors” came from <a href="https://codes.findlaw.com/tn/title-39-criminal-offenses/tn-code-sect-39-17-901/">existing Tennessee legal code</a>. That code was based on the U.S. Supreme Court’s criteria for legal obscenity.</p>
<p>However, that Tennessee legal code modified the standard of legal obscenity so that it applied specifically “for minors.” So, for example, rather than designating as obscene certain speech that lacked “serious literary, artistic, political or scientific value,” full stop, Tennessee’s standard applied to certain speech that lacked “serious literary, artistic, political or scientific value for minors.” </p>
<p>On March 31, Parker <a href="https://www.nbcnews.com/nbc-out/out-news/judge-halts-tennessees-drag-ban-law-rcna77743">temporarily blocked</a> the law from taking effect. His final ruling on June 2 permanently barred enforcement of it in Tennessee’s Shelby County on the grounds that it was an unconstitutional violation of the First Amendment. The reason his ruling applied only to Shelby County is that the sole defendant at that stage in the case was Shelby County’s district attorney, whose authority to enforce the law is limited to that county. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person with fist raised, speaking in public outside a columned building." src="https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Drag artist Vidalia Anne Gentry at a news conference held by the Human Rights Campaign to draw attention to anti-drag bills in the state Legislature, Feb. 14, 2023, in Nashville, Tenn.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DragBanTennessee/b8a90a53e4d0486f85acda4375d5d73b/photo?Query=tennessee%20legislature&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=464&currentItemNo=1">John Amis/AP Images for Human Rights Campaign via AP, File</a></span>
</figcaption>
</figure>
<h2>Unconstitutional restriction</h2>
<p>Parker determined that the law targeted more than just legally obscene speech; it also targeted speech protected under the First Amendment.</p>
<p>The Supreme Court has set very high standards for when regulation of protected speech can discriminate based on <a href="https://constitution.findlaw.com/amendment1/content-and-viewpoint-based-regulation-of-speech.html">the speech’s content or viewpoint</a>. </p>
<p>Content discrimination restricts speech based on subject matter. Viewpoint discrimination restricts speech based on the position taken. So, for example, a ban on speech about elections would discriminate based on content, while a ban on speech that is negative about a particular political candidate would discriminate based on viewpoint.</p>
<p>Parker concluded that the Tennessee law discriminated based on both the speech’s content and its viewpoint. </p>
<p>He concluded that it discriminated based on content because it specifically targets “adult-oriented performances that are harmful to minors” and discriminates based on viewpoint because it specifically targets the speech of “male and female impersonators.”</p>
<p>To make the point that the law discriminated based on viewpoint, Parker used an example of two Elvis impersonators dressed in revealing but nonobscene outfits. If one performer were male and the other female, the law would have made it more likely that the female Elvis impersonator would be subject to prosecution than the male Elvis impersonator. That discriminates against certain expressions of gender identity.</p>
<p>Laws that discriminate based on viewpoint are subject to the highest standard of judicial review, known as strict scrutiny, which requires laws to be “narrowly tailored” and “well defined.” Parker concluded that the law was neither. On this basis, he also concluded that it failed to meet the high standard of review and was unconstitutional. </p>
<p>He noted instead that on any plausible reading of the law, it “criminally sanctions qualifying performers virtually anywhere,” including those performing in “private events at people’s homes or arguably even age-restricted venues.” He also wrote that the law appeared designed for the “impermissible purpose” of “chilling constitutionally-protected speech.”</p>
<h2>Vague and overbroad</h2>
<p>A <a href="https://www.law.cornell.edu/wex/vagueness_doctrine">vague law can violate a person’s rights</a> because it can be hard to tell if one is breaking the law.</p>
<p>Parker found the “harmful to minors” standard unconstitutionally vague because what is harmful for different minors can change drastically depending on the minor. Consider, for example, the differences between a 5-year-old and a 17-year-old. He also concluded that the law was overbroad because it covered, or could reasonably be interpreted to cover, many types of protected speech.</p>
<h2>Looking ahead</h2>
<p>Parker’s ruling barred enforcement of the law only in Shelby County. However, his reasoning regarding the unconstitutionality of the law would apply equally well to any challenge brought against the law anywhere in Tennessee. Parker’s reasoning may also prove persuasive to judges assessing other anti-drag laws in other states.</p><img src="https://counter.theconversation.com/content/207102/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Satta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The law passed by Tennessee legislators that banned many drag performances violated the First Amendment. A legal scholar explains the judge’s decision in the case.Mark Satta, Assistant Professor of Philosophy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2058132023-06-05T12:08:48Z2023-06-05T12:08:48ZSaying that students embrace censorship on college campuses is incorrect – here’s how to discuss the issue more constructively<figure><img src="https://images.theconversation.com/files/528662/original/file-20230526-23-mtq53t.jpeg?ixlib=rb-1.1.0&rect=68%2C43%2C5682%2C3785&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">It's not true that college students reject challenging ideas wholesale and oppose conservative views.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/male-college-professor-gestures-during-lecture-royalty-free-image/1213738982?phrase=college+campus+class&adppopup=true">SDI Productions/E+/Getty Images</a></span></figcaption></figure><p>The claim that <a href="https://www.nytimes.com/2021/11/08/us/ut-austin-free-speech.html">college students censor</a> viewpoints with which they disagree is now common. Versions of this claim include the falsehoods that <a href="https://www.insidehighered.com/news/students/free-speech/2023/04/13/shouting-down-speakers-who-offend">students “shut down</a>” most invited speakers to campuses, reject challenging ideas and <a href="https://www.pewresearch.org/social-trends/2019/08/19/the-growing-partisan-divide-in-views-of-higher-education-2/">oppose conservative views</a>. </p>
<p>Such cynical distortions dominate discussions of higher education today, misinform the public and threaten both democracy and higher education.</p>
<p>Indeed, <a href="https://firstamendmentwatch.org/deep-dive/classes-are-over-but-the-campus-free-speech-debate-still-rages/">politicians in states</a> such as <a href="https://www.documentcloud.org/documents/23574019-dec-28-2022-memo?responsive=1&title=1">Florida</a>, <a href="https://www.texastribune.org/2019/05/17/texas-free-speech-college-campus-legislation/">Texas</a> and <a href="https://www.statenews.org/government-politics/2023-05-17/republican-bill-free-speech-college-campuses-passes-ohio-senate">Ohio</a> argue that a so-called “free speech crisis” on college campuses justifies stronger government control over what gets taught in universities. </p>
<p>Since 2020, numerous state legislatures have attempted to censor forms of speech on campuses by citing exaggerations about students and their studies. Passing laws to ban certain kinds of speech or ideas from college campuses is no way to promote true free speech and intellectual diversity. <a href="https://www.chronicle.com/article/here-are-the-states-where-lawmakers-are-seeking-to-ban-colleges-dei-efforts">The most common targets of such censorship</a> are programs that discuss race, gender, sexuality and other forms of multiculturalism.</p>
<p>My concerns over public discourse about higher education extend from <a href="https://global.oup.com/academic/product/campus-misinformation-9780197531273?cc=us&lang=en&">my book</a> on popular misinformation about universities and why it threatens democracy. In it, I show that many negative perceptions of students and universities rest on factual distortions and exaggerations.</p>
<p>The character of public debates about higher education is important. Millions of Americans rely on a healthy system of university education for professional and personal success. Rampant cynicism about higher education, leading to <a href="https://www.insidehighered.com/news/2022/07/26/public-support-higher-education-wobbling">declines in public support</a> for it, only undermines their pursuits.</p>
<p>Based on my research, I offer alternative ways to frame debates about higher education. They can lead to discussions that are more constructive and accurate while better protecting fundamental American values such as free speech and democracy.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/528663/original/file-20230526-28782-m9kgkc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a dark suit standing at a lectern with the sign 'Florida, the education state' on it." src="https://images.theconversation.com/files/528663/original/file-20230526-28782-m9kgkc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/528663/original/file-20230526-28782-m9kgkc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/528663/original/file-20230526-28782-m9kgkc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/528663/original/file-20230526-28782-m9kgkc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/528663/original/file-20230526-28782-m9kgkc.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/528663/original/file-20230526-28782-m9kgkc.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/528663/original/file-20230526-28782-m9kgkc.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">One bill signed in May 2023 by Florida Gov. Ron DeSantis, center, includes restrictions that bar public colleges in Florida from spending money on diversity, equity and inclusion programs.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/florida-governor-ron-desantis-takes-questions-from-the-news-photo/1255657321?adppopup=true">Thomas Simonetti for The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>1. Avoid stereotypes about college students</h2>
<p>The idea that college students are hostile to opposing viewpoints is <a href="https://www.theguardian.com/world/2019/sep/03/the-myth-of-the-free-speech-crisis">false</a>. Pundits and media personalities have promoted this falsehood aggressively. Such figures <a href="https://www.gq.com/story/free-speech-grifting">have benefited</a>, politically or financially, from sensationalism about a college “free speech crisis.”</p>
<p>In opinion polls, college students typically <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2018/03/16/the-campus-free-speech-crisis-is-a-myth-here-are-the-facts/">express stronger support</a> for free speech and diverse viewpoints than other groups. Partisan organizations often <a href="https://reason.com/2017/03/15/students-at-elite-colleges-are-the-most/">cherry-pick</a> that data to make it seem otherwise. But poll results tell only part of the story about college campuses today.</p>
<p><a href="https://nces.ed.gov/fastfacts/display.asp?id=1122">Several thousand institutions</a> make up U.S. higher education. The system includes hundreds of thousands of students from different backgrounds. College campuses are often more demographically and intellectually diverse than surrounding communities.</p>
<p>Judgments about higher education based on sweeping generalizations about college students conflict with the full realities of campus life. A wider range of perspectives, including from students themselves, can enrich debates about university education.</p>
<h2>2. Consider all forums for free speech in universities</h2>
<p>Universities protect free speech <a href="https://www.theatlantic.com/ideas/archive/2019/06/free-speech-crisis-campus-isnt-real/591394/">more effectively</a> than do other parts of society. They don’t do so perfectly, but more effectively.</p>
<p>Universities are major centers for the study of the First Amendment, the free press, human rights, cultural differences, international diplomacy, conflict resolution and more. Many institutions require students to take basic speech and writing courses that enhance their skill in argument and debate.</p>
<p><a href="https://newrepublic.com/article/142218/colleges-right-reject-hateful-speakers-like-ann-coulter">Manufactured outrage</a> about college students who protest invited speakers fuels sensationalism about free speech on campuses. Despite occasional disruptions over bigoted speakers, universities offer <a href="https://www.pennpress.org/9780812250077/free-speech-on-campus/">numerous forums for free speech</a>, open debate and intellectual diversity.</p>
<p>Just one large university holds thousands of classes, meetings, performances and other events on a daily basis. People freely express their views and pursue new ideas in those settings. Now multiply that reality by several thousand different institutions.</p>
<p>Debates over free speech in higher education can be improved by acknowledging the many forums in which people speak freely every day.</p>
<h2>3. Recognize the true threats to free speech on campuses</h2>
<p>For the past several years, many state legislatures have promoted the falsehood that universities are hostile to various ideas. The most commonly cited examples are conservative ideas, traditional expressions of patriotism and great works of Western literature.</p>
<p>The notion of hostility to such ideas on college campuses has surfaced in numerous bills that create <a href="https://www.aaup.org/article/political-interference-academic-freedom-and-free-speech-public-universities#.ZGY-waXMI2z">new forms of state interference</a> in education. Thirty-five <a href="https://www.chronicle.com/article/here-are-the-states-where-lawmakers-are-seeking-to-ban-colleges-dei-efforts">pieces of legislation</a> banning diversity, equity and inclusion programs in colleges have been introduced in state legislatures. So far, three of them have been signed into law, while four are pending final legislative approval.</p>
<p>Tenure for faculty members, which protects independent thought, is also <a href="https://apnews.com/article/politics-colleges-and-universities-florida-state-government-texas-education-4f0fe0c5c18ed227fabae3744e8ff51d">under assault</a> in states such as Florida and Texas. Politicians in those states justify ending tenure protections by claiming that professors teach students to censor free speech.</p>
<p>Such rising government interference creates a genuine threat to free speech on college campuses and in society beyond. <a href="https://thehill.com/changing-america/enrichment/arts-culture/3675842-banned-book-authors-say-new-wave-of-censorship-is-most-dangerous-yet/">A historic increase in state censorship</a>, which began with higher education, has spilled over into censorship of materials about race, gender, sexuality and multiculturalism in K-12 schools and public libraries.</p>
<p>Advocacy organizations like the <a href="https://www.the74million.org/article/the-aclus-fight-against-classroom-censorship-state-by-state/">ACLU</a> and the <a href="https://www.aaup.org/issues/political-interference-higher-ed">American Association of University Professors</a> have condemned this censorship. So have <a href="https://pen.org/conservatives-oppose-educational-gag-orders-too/">numerous conservative leaders</a>.</p>
<p>Informed scrutiny of university policies and what faculty members teach is always welcome. But cynical distortions have fueled anti-democratic censorship of universities, not constructive efforts to improve them.</p>
<h2>4. Understand the role of academic freedom</h2>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/528665/original/file-20230526-11640-dg7men.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Many graduates in academic gowns walking past a huge crowd in a stadium." src="https://images.theconversation.com/files/528665/original/file-20230526-11640-dg7men.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/528665/original/file-20230526-11640-dg7men.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=417&fit=crop&dpr=1 600w, https://images.theconversation.com/files/528665/original/file-20230526-11640-dg7men.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=417&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/528665/original/file-20230526-11640-dg7men.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=417&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/528665/original/file-20230526-11640-dg7men.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=524&fit=crop&dpr=1 754w, https://images.theconversation.com/files/528665/original/file-20230526-11640-dg7men.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=524&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/528665/original/file-20230526-11640-dg7men.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=524&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Academic freedom isn’t a luxury found only in the Ivy League. It exists at community colleges such as Long Beach City College in California, whose June 9, 2022, graduation ceremony is seen here.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/long-beach-city-college-graduation-ceremony-allowed-news-photo/1402026204?adppopup=true">Brittany Murray/MediaNews Group/Long Beach Press-Telegram via Getty Images</a></span>
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</figure>
<p>The ability of citizens to exercise academic freedom is not only vital in education. It’s also training for democracy.</p>
<p>Academic freedom includes the freedom to attend a university of one’s choice. The freedom to learn what one chooses in that university. The freedom of an institution to offer a wide range of subject matters to students. And the freedom to teach or conduct research without political interference.</p>
<p>These freedoms are not reserved for Ivy League universities. U.S. higher education includes state schools and <a href="https://educationusa.state.gov/your-5-steps-us-study/research-your-options/community-college">community colleges</a> that serve middle- and working-class communities. Those institutions are the backbone of many professions, from health care and technology to engineering and education.</p>
<p>The quality of public debate over free speech in higher education matters. Government interference with colleges does not punish elites. It rewards deeply cynical views of higher education and restricts a freedom that should be available to all Americans.</p><img src="https://counter.theconversation.com/content/205813/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bradford Vivian does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The quality of public debate over free speech in higher education matters. And the debate right now gets the facts all wrong.Bradford Vivian, Professor of Communication Arts and Sciences, Penn StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2065912023-05-30T20:08:23Z2023-05-30T20:08:23ZDoes the Fight Transphobia UniMelb campaign against a feminist philosopher violate academic freedom?<figure><img src="https://images.theconversation.com/files/528954/original/file-20230530-18771-fnjtie.png?ixlib=rb-1.1.0&rect=11%2C11%2C3823%2C1978&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anonymous posters such as this one have campaigned against philosopher Holly Lawford-Smith, author of the book Gender-Critical Feminism.</span> </figcaption></figure><p>A campaign by the activist group Fight Transphobia UniMelb against feminist philosopher <a href="https://hollylawford-smith.org/">Holly Lawford-Smith</a> <a href="https://www.theage.com.au/national/class-warfare-lecturer-targeted-by-trans-activists-over-rally-role-20230505-p5d5vr.html">escalated</a> recently. There have been calls to boycott her course on feminism at the University of Melbourne. Posters and stickers around the campus and its environs have declared “Our demands: Transphobes and Nazis off campus” and that: “Only a Fascist takes ‘Feminism’”. </p>
<p>In response, Lawford-Smith has lodged a formal complaint with WorkSafe Victoria. She accuses the university of failing to provide her with a safe work environment, and to uphold academic freedom.</p>
<p>Fight Transphobia UniMelb has <a href="https://fighttransphobiaunimelb.tiiny.site/">since stated</a> it will revise some of its stickers, but the activism continues.</p>
<p>Melbourne University, meanwhile, is <a href="https://www.theage.com.au/national/university-closes-book-on-lecturer-transphobia-complaints-20230518-p5d9c4.html">reportedly</a> preparing to deploy security guards outside Lawford-Smith’s second-year feminism class. </p>
<p>University provost Nicola Phillips told The Age it has a “resolute commitment” to academic freedom, which extends to gender-critical perspectives being debated on campus and Lawford-Smith teaching her course. It also has a “positive obligation” to ensure transgender or gender diverse students can “participate fully in the life of the university”.</p>
<p>The campaign raises a host of challenging ethical questions.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-is-essentialism-and-how-does-it-shape-attitudes-to-transgender-people-and-sexual-diversity-203577">What is essentialism? And how does it shape attitudes to transgender people and sexual diversity?</a>
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<hr>
<h2>What’s all the fuss about?</h2>
<p>Lawford-Smith is a “<a href="https://hollylawford-smith.org/what-is-gender-critical-feminism-and-why-is-everyone-so-mad-about-it/">gender critical feminist</a>”. (The term usually used by her opponents is “<a href="https://en.wikipedia.org/wiki/TERF">terf</a>”: trans-exclusionary radical feminist.) Lawford-Smith’s scholarly research and public engagements are critical of gender identity, arguing for the significance of biological sex.</p>
<p>Lawford-Smith is <a href="https://hollylawford-smith.org/censorship-timeline/">no stranger</a> to controversy. In 2021 she <a href="https://www.smh.com.au/lifestyle/gender/transphobic-website-puts-melbourne-university-academics-at-odds-20210225-p575u4.html">launched a website</a> collecting anonymous stories from women about their safety in women’s spaces opened to trans women. The website was <a href="https://www.pedestrian.tv/news/holly-lawford-smith-transphobic-open-letter/">condemned</a> by more than 1400 staff and students. In particular, <a href="http://perfors.net/blog/academic-integrity/">sustained critiques</a> were raised against the website’s scholarly standards, challenging whether it warranted protection on the basis of academic freedom.</p>
<p>More recently, Lawford-Smith spoke at the <a href="https://www.abc.net.au/news/2023-03-26/kellie-jay-keen-minshullanti-trans-rights-liberal-party-debate/102142130">controversial</a> “Let Women Speak Rally” in Melbourne, attended by far-right extremists – complete with Nazi salutes. In response, the activism against her intensified, linking her (and, it seems, her students) to fascism.</p>
<p>The case bears striking similarity to that of UK philosopher <a href="https://www.theguardian.com/world/2021/oct/28/sussex-professor-kathleen-stock-resigns-after-transgender-rights-row">Kathleen Stock</a>. A long-running campaign from trans activists made Stock fear for her safety, driving her to resign.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/does-public-safety-trump-free-speech-history-suggests-there-is-a-case-for-banning-anti-trans-activist-posie-parker-from-nz-202118">Does public safety trump free speech? History suggests there is a case for banning anti-trans activist Posie Parker from NZ</a>
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</p>
<hr>
<h2>What’s academic freedom? Why is it important?</h2>
<p>A key concern in considering the case is academic freedom. As Carolyn Evans and Adrienne Stone argue in <a href="https://www.blackincbooks.com.au/books/open-minds">Open Minds: Academic Freedom and Freedom of Speech in Australia</a>, academic freedom differs from the more general notion of free speech. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/528772/original/file-20230529-27-wmgf5g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/528772/original/file-20230529-27-wmgf5g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/528772/original/file-20230529-27-wmgf5g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=918&fit=crop&dpr=1 600w, https://images.theconversation.com/files/528772/original/file-20230529-27-wmgf5g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=918&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/528772/original/file-20230529-27-wmgf5g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=918&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/528772/original/file-20230529-27-wmgf5g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1153&fit=crop&dpr=1 754w, https://images.theconversation.com/files/528772/original/file-20230529-27-wmgf5g.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1153&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/528772/original/file-20230529-27-wmgf5g.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1153&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>Free speech is a right held by everyone, justified by – and limited by – ethical concerns with truth, autonomy and democracy.</p>
<p>In contrast, <a href="https://www.britannica.com/topic/academic-freedom">academic freedom</a> is a narrower principle that specifically protects university scholars. Academic freedom provides academics with autonomy over what they research, the results they draw, and their dissemination of that research. It also grants them some autonomy over the subject matter they teach. </p>
<p>Academic freedom is important because if scholars are constrained from arguing against prevailing views, then universities cannot fulfil their socially critical role of challenging dogmas and unearthing new truths. The progress of science and the development of knowledge depends on new and contrary ideas being aired and tested.</p>
<p>Academic freedom doesn’t allow scholars to do whatever they want. Academics must still use scholarly methods of providing evidence and reasoning, publishing in peer-reviewed outlets, and obeying ethical constraints on how they research. But the academic chooses what they research, and – critically – <em>what conclusions they draw</em>.</p>
<p>Academic freedom can be threatened, in different ways, by domestic governments and security agencies, foreign governments, industry (through leveraging research funding), and even the increasingly commercial nature of university administration. </p>
<p>But can it also be threatened by student activism?</p>
<h2>Students have rights too</h2>
<p>University students have rights of free speech, including rights to protest and to call for boycotts. Indeed, an important part of university life is for students to find their voice and learn to vigorously defend their ideas.</p>
<p>While lawful and non-disruptive protests are clearly protected, peaceful but disruptive protests, like sit-ins, can also be morally justified. Student protesters have historically been drivers of vital moral change – such as in the <a href="https://kinginstitute.stanford.edu/encyclopedia/sit-ins">civil rights movement</a> in the US, and Charles Perkins’ <a href="https://deadlystory.com/page/culture/history/Students_lead_%E2%80%98Freedom_Rides%E2%80%99_through_segregated_NSW_towns#:%7E:text=The%201965%20Freedom%20Ride%20%E2%80%93%20led,New%20South%20Wales%20country%20towns.">freedom ride</a> here in Australia.</p>
<p>The question is what to do when peaceful protest tips into personalised attacks aiming to remove specific university employees, or into sustained disruption of classes that other students want to take.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/528951/original/file-20230530-39262-eelg8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/528951/original/file-20230530-39262-eelg8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/528951/original/file-20230530-39262-eelg8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/528951/original/file-20230530-39262-eelg8b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/528951/original/file-20230530-39262-eelg8b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/528951/original/file-20230530-39262-eelg8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/528951/original/file-20230530-39262-eelg8b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/528951/original/file-20230530-39262-eelg8b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Students have a right to protest – as in this recent demonstration over university fees.</span>
<span class="attribution"><span class="source">Mick Tsikas/AAP</span></span>
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<h2>Is this campaign consistent with academic freedom?</h2>
<p>A campaign spokesperson <a href="https://www.theage.com.au/national/class-warfare-lecturer-targeted-by-trans-activists-over-rally-role-20230505-p5d5vr.html">told The Age</a> that the activists believed in academic freedom, but that universities only had the right to “propagate unpopular ideas, not bigoted ones”.</p>
<p>The problem is that determining what speech counts as bigoted or harmful – outside of the most obvious cases of (say) racial slurs or incitements to violence – is <a href="https://www.abc.net.au/religion/ethics-of-responding-to-arguments-with-allegations/12588796">acutely informed</a> by a person’s beliefs, values and politics.</p>
<p>It is common for groups (on all sides of politics, and throughout history) to believe that those speaking out against their cause are not only mistaken, but morally wrong and actively harmful.</p>
<p>It’s hard to see what is left of academic freedom if small groups of students can, through tactics of targeted attacks on individual scholars, deliberately impose their views on what counts as prohibited research ideas and harmful speech. </p>
<p>After all, if the campaign is successful, there’s no guarantee that the practice would not continue and even expand. The present activism aims to remove Lawford-Smith from teaching one course. However, the arguments presented, and the rhetoric accompanying them (“Transphobes and Nazis off campus!”), could potentially be used to have her, and others who share her views, removed entirely. </p>
<p>Even if existing gender critical theorists were not systematically purged from universities, aspiring academics nevertheless would be well-warned to steer clear of research that could get them cancelled. <a href="https://quillette.com/2023/04/17/philosophys-no-go-zone/">Some</a> argue this process of chilling gender-critical research has already begun.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/there-are-differences-between-free-speech-hate-speech-and-academic-freedom-and-they-matter-124764">There are differences between free speech, hate speech and academic freedom – and they matter</a>
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<h2>Should courses be taught by controversial public speakers?</h2>
<p>It has also been argued that, while perhaps gender-critical ideas can be taught, they should not be taught by someone who <a href="https://fighttransphobiaunimelb.tiiny.site/">publicly holds such contentious views</a>. Trans or gender-questioning students in Lawford-Smith’s courses might feel personally attacked and marginalised by her public statements.</p>
<p>This is an important concern. Universities should foster respectful relations between teachers and students. However, the argument in this context looks inconsistent. </p>
<p>After all, scholars supporting trans rights also take clear, public positions on controversial issues. Sometimes they can use extremely strong moral language to condemn opposing thinkers as <a href="https://www.timeshighereducation.com/news/transgender-disputes-threaten-split-university-unions">bigoted, hateful, or phobic</a>. This is the language of <a href="https://www.blackincbooks.com.au/books/uncivil-wars">contempt</a>, and it attacks not only the idea but the character of the person who holds it.</p>
<p>Yet there is every reason to believe those same scholars might teach students who have gender-critical sympathies, and even identities, who feel excluded and morally attacked for their beliefs.</p>
<h2>Should students have academic freedom?</h2>
<p>Some of the most valuable university learning occurs when students discuss their own controversial ideas, and engage with other students’ opposing arguments. To this end, students can deserve academic freedom (as they are granted in <a href="https://www.legislation.govt.nz/act/public/1989/0080/latest/DLM183665.html">New Zealand</a>).</p>
<p>Unfortunately, <a href="https://www.thefire.org/research-learn/2020-college-free-speech-rankings">international evidence</a> suggests that many students suppress their views out of fear of repercussions. (<a href="https://www.qilt.edu.au/docs/default-source/default-document-library/2021-ses-national-report.pdf">Australia’s current situation</a> seems somewhat better.)</p>
<p>Fight Transphobia UniMelb <a href="https://fighttransphobiaunimelb.tiiny.site/">has said</a>: </p>
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<p>We in no way seek to intimidate those who take Holly Lawford-Smith’s subject, and we apologise to anyone who has felt this way. We do hope however to equip students with the knowledge required to make appropriate enrolment decisions.</p>
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<p>One of the worries with this anonymous boycott campaign is the way it targets students, and might intimidate them from taking controversial courses or airing unpopular views. If it did, then the students’ academic freedom would be imperilled. </p>
<p>Still, there are no easy solutions here, as these freedoms apply equally to those supporting, and those questioning, the boycott. It’s been alleged that Lawford-Smith has shut down contrary views in her classes (a claim she strongly denies). </p>
<p>Perhaps the best policy for universities in this space is to engage in pro-active, deliberate and sustained efforts to “<a href="https://www.timeshighereducation.com/blog/free-speech-campus-calls-both-hard-heads-and-soft-hearts">enlighten up</a>”, developing <a href="https://theconversation.com/actually-its-ok-to-disagree-here-are-5-ways-we-can-argue-better-121178">students’ capabilities</a> to disagree well, and stressing the need for tolerance of opposing views.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/feel-free-to-disagree-on-campus-by-learning-to-do-it-well-151019">Feel free to disagree on campus ... by learning to do it well</a>
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<h2>A self-defeating success?</h2>
<p>A final concern is that successfully silencing gender-critical feminist thought through these forms of protest and targeting might ultimately prove counter-productive to trans rights.</p>
<p>In some US states, Republican governments have recently pushed through <a href="https://www.nytimes.com/2023/05/17/us/texas-transgender-care-ban-children.html?campaign_id=190&emc=edit_ufn_20230518&instance_id=92831&nl=from-the-times&regi_id=71689150&segment_id=133217&te=1&user_id=81faa0c1caf44cb65829484db51acca1">extreme anti-trans legislation and policy</a>. These policies can be trenchantly critiqued on the basis that they are out of step with the medical science. But that critique can only be levelled if the science is itself trustworthy.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/528963/original/file-20230530-21-t1y3wf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/528963/original/file-20230530-21-t1y3wf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/528963/original/file-20230530-21-t1y3wf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/528963/original/file-20230530-21-t1y3wf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/528963/original/file-20230530-21-t1y3wf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/528963/original/file-20230530-21-t1y3wf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/528963/original/file-20230530-21-t1y3wf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/528963/original/file-20230530-21-t1y3wf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Opponents of a Texas bill banning gender-affirming medical care for transgender children protest at the Texas Capitol.</span>
<span class="attribution"><span class="source">Mikala Compton/AAP</span></span>
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</figure>
<p>If the universities that produce the science have silenced rather than refuted gender critical scholars and other opposing viewpoints, then universities will not – and, indeed, should not – be trusted as a reliable source of knowledge.</p>
<p>Ultimately, the student campaign raises serious and challenging ethical issues. Students must be allowed to give voice to their social justice values, and to publicly criticise their own universities when they transgress those values. But at the same time, protesters need to be sensitive to when their actions slip into the territory of bullying, intimidating and threatening individuals. </p>
<p>More fundamentally – if the above arguments on academic freedom are correct – were universities to allow protesters to effectively determine what standpoints scholarly researchers could take and disseminate, they would betray their social role as universities.</p>
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<p><em>An earlier version of this article stated Lawford-Smith has been critiqued for shutting down contrary views in her classes. This sentence has now been amended to reflect the fact she has denied these allegations.</em></p><img src="https://counter.theconversation.com/content/206591/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Breakey does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Trans activists are running a campaign against University of Melbourne philosopher Holly Lawford-Smith. It raises a host of challenging ethical questions.Hugh Breakey, Deputy Director, Institute for Ethics, Governance & Law. President, Australian Association for Professional & Applied Ethics., Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2059782023-05-23T12:26:19Z2023-05-23T12:26:19ZSalman Rushdie renews fight against book-banning – 3 essential articles on right-wing challenges to what schoolkids can read<figure><img src="https://images.theconversation.com/files/527379/original/file-20230521-128284-6lxthk.jpg?ixlib=rb-1.1.0&rect=504%2C84%2C3233%2C2404&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Salman Rushdie speaks at the PEN America Literary Gala on May 18, 2023, in New York City.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/honoree-salman-rushdie-speaks-on-stage-at-the-2023-pen-news-photo/1491399550?adppopup=true">Jamie McCarthy/Getty Images for PEN America</a></span></figcaption></figure><p>No one needs to tell <a href="https://www.ft.com/content/4b089c93-f8a1-4a0f-bb7a-5108e3736a50">Salman Rushdie</a> about the cost of free speech.</p>
<p>In 1989, Rushdie’s novel “<a href="https://www.theguardian.com/books/2022/aug/12/tsunami-outrage-salman-rushdie-satanic-verses">The Satanic Verses</a>” triggered the ire of Iranian leader Ayatollah Ruhollah Khomeini, who called for <a href="https://www.nytimes.com/2022/08/12/nyregion/salman-rushdie-fatwa-satanic-verses.html">the writer’s death</a>.</p>
<p>Protests against Rushdie’s novel <a href="https://www.npr.org/2022/08/13/1117389122/salman-rushdie-satanic-verses-controversy">ignited violent attacks</a> against bookstores across the world, and the book was later banned in such countries as Bangladesh, Sri Lanka and Sudan.</p>
<p>Even those safety precautions were not enough to prevent <a href="https://www.bbc.com/news/entertainment-arts-62588666">a nearly fatal attack</a> on Rushdie in the summer of 2022 while he was on stage at a literary festival in western New York. Rushdie was stabbed repeatedly and eventually lost an eye. </p>
<p>In his first public appearance since the attack, on May 18, 2023, Rushdie, 75, accepted an <a href="https://www.npr.org/2023/05/19/1177014716/pen-america-gala-honors-salman-rushdie-his-first-in-person-appearance-since-stab">award for his courage</a> at the annual gala of PEN America, a nonprofit literary group that is in the <a href="https://news.bloomberglaw.com/litigation/florida-school-system-sued-by-pen-america-over-book-restrictions">middle of a fight</a> in Florida over attempts to restrict access to books primarily involving race and LGBTQ+ identities. </p>
<p>During his brief speech, Rushdie said the attacks on books and teaching and even libraries have “never been more dangerous and never been more important to fight.”</p>
<p>“Terrorism must not terrorize us,” <a href="https://www.npr.org/2023/05/19/1177014716/pen-america-gala-honors-salman-rushdie-his-first-in-person-appearance-since-stab">Rushdie said</a>. “Violence must not deter us.”</p>
<p>Over the years, The Conversation U.S. has published numerous stories exploring the wave of attempts to ban certain books from public schools and how those attacks on free speech teeter on the edges of constitutionality – and potential violence. Here are three selections from those articles. </p>
<h2>1. Outdated beliefs about how children read</h2>
<p>Trisha Tucker teaches a class on banned books at the University of Southern California and explained that attempts to ban books are “frequently motivated by misapprehensions about how children consume and process literature.”</p>
<p>Research shows that children’s reading experiences are “complex and unpredictable.”</p>
<p>“Their interpretation of books is informed by their personal and cultural histories,” <a href="https://theconversation.com/book-bans-reflect-outdated-beliefs-about-how-children-read-189938">she wrote</a>, “and those interpretations may change over time or when readers encounter the same stories in different contexts.” </p>
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Read more:
<a href="https://theconversation.com/book-bans-reflect-outdated-beliefs-about-how-children-read-189938">Book bans reflect outdated beliefs about how children read</a>
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<h2>2. A lack historical knowledge weakens a strong democracy</h2>
<p>Since it began keeping tally in 2021, PEN America has counted more than 4,000 instances of book banning in the U.S. </p>
<p>Those banned books range from Toni Morrison’s “Beloved,” a fictional tale of freed enslaved people, to Anne Frank’s “Diary of a Young Girl”, a nonfiction account of a Jewish girl’s life under Nazi occupation.</p>
<p>As <a href="https://www.youtube.com/watch?v=DvDorZaUIwU&t=9s">director of two human rights programs at Penn State</a> and the <a href="https://blogs.timesofisrael.com/a-holocaust-survivors-german-rifle/">grandchild of Holocaust survivors</a>, Boaz Dvir knows firsthand about the danger of efforts to limit students’ access to book and courses about certain historical and societal topics. </p>
<p>Failing to teach about the Holocaust, for instance, “may rob students of such imperative lessons as how propaganda can mislead, grow and wreak havoc on democracy, as well as how societies and institutions can fall apart,” <a href="https://theconversation.com/im-an-educator-and-grandson-of-holocaust-survivors-and-i-see-public-schools-failing-to-give-students-the-historical-knowledge-they-need-to-keep-our-democracy-strong-203868">Dvir wrote</a>. </p>
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<em>
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Read more:
<a href="https://theconversation.com/im-an-educator-and-grandson-of-holocaust-survivors-and-i-see-public-schools-failing-to-give-students-the-historical-knowledge-they-need-to-keep-our-democracy-strong-203868">I'm an educator and grandson of Holocaust survivors, and I see public schools failing to give students the historical knowledge they need to keep our democracy strong</a>
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<h2>3. When are book bans unconstitutional?</h2>
<p>It’s hard to definitively say whether the current incidents of book banning in schools are constitutional – or not. </p>
<p>First Amendment scholar <a href="https://udayton.edu/directory/law/goldberg_erica.php">Erica Goldberg</a> explained the reason for the uncertainty is due to the courts’ analyzing decisions made in pubic schools differently than censorship in nongovernment contexts. </p>
<p>“Control over public education, in the words of the Supreme Court, is for the most part given to state and local authorities,” <a href="https://theconversation.com/when-are-book-bans-unconstitutional-a-first-amendment-scholar-explains-176225">Goldberg wrote</a>.</p>
<p>But not all is lost for those opposed to book bans in Florida and other U.S. states. </p>
<p>“Even though the government has discretion to control what’s taught in school,” Goldberg wrote, “the First Amendment ensures the right of free speech to those who want to protest what’s happening in schools.”</p>
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Read more:
<a href="https://theconversation.com/when-are-book-bans-unconstitutional-a-first-amendment-scholar-explains-176225">When are book bans unconstitutional? A First Amendment scholar explains</a>
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<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives</em>.</p><img src="https://counter.theconversation.com/content/205978/count.gif" alt="The Conversation" width="1" height="1" />
The constitutionality of the recent wave of proposed book bans is unclear, as the US Supreme Court has given states wide latitude to regulate what is read in public schools and libraries.Howard Manly, Race + Equity Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.