Saturday, April 21, 2007

Is Free Speech a Claim Right?

Jon Miles and I have had a running conversation about free speech rights, and recently our attention turned to the Dixie Chicks. In 2003, they criticized the president during a concert in Britain, and immediately felt a backlash from country music fans and radio stations who refused to play their music. Lipton pulled their sponsorship from the Chicks' 2003 world tour, and Wal-Mart pulled their music from its shelves. In response, they produced another album featuring the single "Not Ready to Make Nice," and effectively recreated their fanbase after being embraced by the Hollywood Left. Their new patrons in Hollywood apparently felt so moved by the whole thing that they recently lionized the Chicks in a documentary called "Shut Up and Sing" that Jon and I watched at the suggestion of Steve Wall.

Where all this interests me is with respect to the response offered by the Chicks. Their belief, so the documentary illustrates, is that Wal-Mart and the radio stations who refused to play their music were censuring their right to free speech. This was curious to me. Does someone else's free speech right require my participation in their speaking? I presented Jon with the following thought experiment inspired by a discussion with Corwin Carr.

Let's say that I'm a music distributor of some sort, that I'm very liberal, and that I'm very good at what I do. In fact, I have a large majority share of the market, and in some places there are no other outlets for some artists if I do not bring their music to the market. Recently, a popular female music group from Maryland called, say, the Yankee Babes, offered critical comments on Nancy Pelosi's recent visit to Syria. "We're with you good people," they say to an audience in Austin, "and we're ashamed that the Speaker of the House is from Maryland." (Yes, Speaker Pelosi has lived in and represents California, but she was born in Maryland, and I couldn't pass up the Yankee Babes thing.) Their comments are met with wild applause from that crowd, but I am offended, and do not feel at liberty by my conscience to continue distributing their music. Even if doing so would be lucrative for me, it would also make me complicit in publishing speech that I do not endorse, even if I do endorse the right itself. Let us further remove any financial contingencies, and suppose that I satisfied the opportunity costs incurred for the products produced and sitting in my warehouses. The Yankee Babes are financially no worse off than if they'd spent the time to produce an album that no one bought.

Have I censured free speech? It seems strange to say so since the right in question exists in parallel with, and is perhaps even thought to be an expression of, the liberty to order one's life and live according to the dictates of one's conscience. Speech rights are normally understood as negative rights that entail that I not interfere with the speaker's speaking, but if my participation is required for speech to reach an audience, does the right to free speech become a claim right such that others are entitled to it? This seems to confuse the right to speak with the right to be heard, the latter being what my participation as a distributor furnishes. The right to speak as a political right seems to entail claim rights only for the public spaces and forums that belong to everyone. Arguing that free speech rights entitle one to the activity or property of another seems therefore to argue against the principle those rights exist to protect.

Nevertheless, the Dixie Chicks seem to think that this is what happened to them. Unless and until I (or one who roughly agrees with me) gain the participation of others willing to distribute these arguments to at least as wide an audience, I'm concerned that this wider notion of the right to free speech will create many of the same problems it was originally intended to solve.


  1. Well, I didn't know that the Dixie Chicks were still relevant until they got some Grammies or some such a month ago. I don't know about the threat that you see in your last paragraph. It seems unlikely. Anyway, it's an interesting question that you ask.

    I can't see that I have a positive duty to facilitate anyone's free speech. I may not restrain you from saying most things, but there is no duty to facilitate your speech. The right that you and Jon are debating seems to be something like "The right to address a large portion of the public if you wish."

    If there were then we would have regular news conferences wherein I announce my feelings on things. I would then have a claim on major news outlets (all of them?)to air my daily rants.

    The conundrum sounds like it really has more to do with censoring art than it does with censoring speech. I don't know that there are any rights having to do with art which are separate from speech. Perhaps we should not censor the sort of art that a person is allowed to make, but surely we don't have a duty to display or pay for art that we don't want/approve of/like.

  2. " . . . confuse the right to speak with the right to be heard . . . "

    Excellent point. They aren't at all the same.

  3. Jeff is right. Good phrasing. I had not registered that sentence. That's what I get for blogging while watching Drive.

  4. I wonder if we can separate a few points for clarification. I see three questions:

    1) is this suppressing speech?
    2) is this censorship?
    3) is this justified?

    Not all suppression is censorship, I think, and not all censorship or suppression is unjustified.

    Let's start with 1 - is this suppression of speech? I think so. If I am a record producer or promoter and I'm looking for a band to represent, I am not suppression speech by never starting a relationship with the dixie chicks or yankee babes, but as I understand the scenario, this wasn't what happened. The gears of the industry basically operate automatically unless interferred with, let's suppose (I think correctly). The lower level producers and publicists find who they think is the best talent and they make records, finance concerts, etc. If some executive then inserts himself into this process, and makes an editorial decision that goes counter to market forces artistic merit, he has suppressed the artistic expression. So I think this is suppression of speech.

    I'm not quite sure that it's censorship, but perhaps a case can be made. I think of censorship as suppression of speech done by some authority or controlling group (or individual). If I ask you to pass along a message to your friend for me, and you refuse, that's NOT censorship. If a middle school won't allow a school newspaper article on homosexuality, that IS censorship. To me it has something to do with the power of the suppressor of speech and the possibility of other methods of getting the message out. The question in the dixie chicks case, in my mind, is how much this hampered their ability to express themselves. That is, how powerful is wal-mart and the other organizations who stopped publicizing and distributing the music? It's an open question. I think this case does not quite amount to true censorship, due to itunes, and the countless other ways of distributing music these days. But I can imagine a similar world to ours where wal-mart monopolized the market on music and there weren't other means of getting the music out. Then I'd start to think this was a case of censorship.

    If it was suppression of speech, but not censorship, was it justified? Of course it was LEAGALLY justified. Morally? I tend to think so. As Ben illustrates, it would be weird to think that I had an obligation as the executive of a company to distribute a message that I found to be offensive. These companies don't owe anything (short of actualy contracts) to the dixie chicks. You might wonder if there's a weak sort of obligation in a free society for huge corperations to mimic the openness of government and public life. I think it would have been admirable for the distributors and publicizers to show a little more tolerance for alternative points of view, but maybe I think this is supererogatory, not an obligation.

    So I don't think the dixie chicks are correct in thinking they've been wronged (though I definately think their speech was suppressed). Given thier situation at the time, however, they were well within their rights to point the finger at wal-mart and the others and say "this is outrageous!" and point to their critics and say "you treated us very badly for speaking our minds, and we're going to fight back." This kind of expression is how they gain back their publicity and start a whole new fan base (lefties).

    With the way the war has gone, and the attention the dixie chicks have gotten for their documentary and anti-bush stance, it may have been a bad business decision for the music industry to turn its back on them. I don't know why wal-mart took the records off the shelf (and I haven't seen the documentary), but the intolerance of anti-war anti-bush statements at that time was high. Now things have swung back, and a good majority of the country now sees things the way the dixie chicks saw things a few years ago. That doesn't tell us anything about the justification of speech suppression, but it might speak in favor of patience and against knee-jerk reactions based on what I think was sort of a mob mentality at the time. (sorry, had to get that political statement in there at the end)

  5. Arthur,

    I just don't know that I agree with your bit about suppression of speech. It looks like you think that the record industry or Walmart has a positive obligation to sell or distribute the Chicks album. I can't see any way in which this is true unless they have a contract which creates this obligation, and I don't think that's the case.

    Merely not-selling the product does not suppress speech. They don't sell any of the CDs that I have made featuring my melodious voice, but I don't think that this is suppression.

  6. I was hoping that we could treat "suppression" as a value-neutral term. I think it just describes the act of limiting one's expresssion. perhaps I should have just said "limiting" as "suppression" sounds kind of loaded.

    So I do not in any way mean to say that every act of suppression or limiting is reveals the breach of an obligation. Some suppression might be permissible, or even required.

    The reason why I think this is a case of suppression is that the speech was in progress, and then someone chose to block it. I see this as different than a case where a choice is made never to promote or distribute the speech in the first place. So walmart does not suppress my speech by refusing to sell my album in the first place, but they do suppress the speech of an artist by stopping the sale of an album already on the shelves or by cutting ties with a band they have already promoted or recorded.

    Look at it as acting/omitting if you like. If you pull the feeding tube you've acted to cause death (my case of suppressing speech), whereas choosing not to supply a feeding tube in the first place is omitting to save life (your case of walmart not wanting to sell your crappy album). Does that clarify my point or muddle it?

  7. Power is a funny thing. It extends the domain of our will in action, and to assert rights to liberty in conscience without specifying (or defending) some notion of what counts as a limit to that domain gives us these kinds of problems. Part of the problem is that power is degreed, and not discretely so, so that it is hard to demarcate a clear limit past which one's actions could be said to unjustly interfere with the rights of others in its exercise.

    Arthur's use of "suppression" or "limiting" seems clear as a rejection of the act/omission distinction in this case, but maybe this is more a problem for that rejection since he seems just as uncomfortable with the prospects of a claim right against the liberty of conscience.

    In a recent conversation with Brad Gabbard, he suggested that since the Yankee Babes had offended by their comments, not by their music, then to interfere with the distribution of their music was to punish them (in a decidedly anti-Millian way) since it was not the music to which the objections arose. This seems like a good countermove as long as one is Millian, but I wonder if even then one could say that there is a clearly relevant freedom of association, or in this case disassociation, that justifies simpliciter the withdrawal described in the example. If I, as the music distributor, don't want to "run with that crowd," because they have by their speech and actions lost my good will and desire to associate with them, then how is that not a cost incurred by their immoderate speech? Mill is certainly not opposed in principle to the idea that some people's speech will marginalize them in public by its immoderation, so I think Brad's Millian punishment counter-move only counts as long as, again, one thinks the Babes or the Chicks have some positive right to the distributor's goods as public goods. This seems to stretch my credibility unless the distributor enforces an effective monopoly such that there can be no outlet for the speech in question. In that case, the counter-argument from Millian punishment seems much more plausible.

  8. I'm uncomfortable with the claim right because I don't believe in rights - not for any more nuanced reason. I think I avoided rights talk in my responses for the most part (if not entirely).

    Also, I took myself to be accepting the act/ommision distinction in treating this issue. The problem with Walmart stopping the sales of the CD's is that in actuality this consists in a deliberate act (the CEO or whoever stopping a process that would continue on its own). It would be an omission if they had never gotten involved in the first place. Thus acting to limit (or suppress) the sales is wrong while merely omitting to sell in the first place is OK. I'm actually agnostic about acting/omitting in a complicated utilitarian manner, but that's a different story which I didn't want to bring to bear here. For now I mean to be accepting the distinction.