Green Room

Free Speech: Threat, or Menace?

posted at 8:05 am on July 20, 2009 by

This is more or less an open-debate thread. I solicit your opinions in the comments; don’t disappoint me!

Resolved: There is no general “right” to nonverbal “speech,” and indeed, some should be banned.


Freedom of speech has always historically meant the freedom to express ideas in words; the modern fancy that any action whatsoever can be considered “speech” if it conveys, however indirectly, a message is unsustainable in logical argument.

Mere outrage is not by itself a message; at best, it’s a medium… and freedom of speech does not imply freedom of every medium of expression. For example, does freedom of speech include the “right” of two high-school students to strip naked in the classroom and have sex? But they may thus be expressing the “message” that they are in love. And does it include “selling” property that doesn’t belong to you, without the real owner’s permission? But that may express your belief that all property should be distributed equally among everyone.

Speech literally means speech — talking, words, sentences — not anything that moves anyone to do or think anything. Granted, some nonverbal communication might be accorded the brevet status of speech; “flipping the bird,” for example, or maybe even something as rude as mooning a speaker you hate. But those are privileges, not rights, and they can be allowed or forbidden on the whim of the authorities… so long as those authorities are even-handed in their judgments and don’t use their power to advance one cause while restricting or retarding another. (But that can be a separate cause of action — you can go to court and argue that the government is abusing its power to suppress nonverbal speech.)

Finally, there are some images and other nonverbal communications that are so vile and degrading that they literally harm people — permanently and irrevocably — either through encouraging horrific and ghastly behavior, or simply via psychological scarring and moral numbing. The victims include children, of course, but often adults as well.

Consider snuff films, even those that do not actually kill or harm any of the actors (adult or child), but create an amazingly realistic depiction of such sexual violence and murder. If we cannot ban a film, for example, that graphically depicts the sodomistic rape of a child (even if faked) — and revels in such behavior, depicting it as normal and pleasurable — then we are no longer a civilization, just a gathering of atavistic voyeurs and beastial bipeds.

At least “mere words” haven’t the power to move people towards the soulless night of absolute amorality, as graphic or other nonverbal communication can. Can we not at least restrict “freedom of speech” to actual speech, words, which can be countered… and allow communities to ban some types of nonverbal “speech” that simply cannot be counterprogrammed, no matter how many wholesome, family-value programs are made available in response?


Sometimes, mere words are not sufficient to express a powerful, important idea in its fullness. For thousands of years, human beings have used nonverbal media — everything from music to art to sculpture to dance to what today we would call protest and passive resistance — to communicate and advance ideas that simply cannot be adequeately conveyed by words… either because the authorities won’t allow the words to be spoken, or because the idea itself is ineffable.

For only one example, can religious experience be reduced to mere words? Suppose some government banned the Catholic mass — but allowed a transcript to be printed and distributed. Freedom of religion aside, would that satisfy the intent of freedom of speech?

Great Britain at one time banned the singing of Irish revolutionary songs in the six counties (Ulster) in northern Ireland. Presumably, one could recite the words, but not sing them. Is that an acceptable limit on freedom of speech? Who, besides the government itself, benefits from such censorship of music?

If Iran bans the act of displaying an American flag on Iranian soil, doesn’t that violate Iranians’ freedom of speech? Could anything, words or actions, be more eloquent in expressing how a Persian might feel about what the mullahs have done to Iran, and the fights they have picked, than hoisting the flag of the freest country on Planet Earth, which is of course Iran’s Great Satan?

Some ideas are ineffable: They cannot be fully described verbally, but only approximated; they cannot be properly argued or advanced with mere words. If we allow governments to ban nonverbal communication, they will inevitably use that authority to suppress those ineffable ideas that threaten their own hegemony or power (such as freedom, liberty, democracy, and disfavored religions), while blithely allowing nonverbal “speech” supporting those ineffable ideas that the government likes (like obedience to authority, or the singular divinity of Allah). That is certainly the pattern in every country that suppresses nonverbal “speech”… suppression is never “even-handed!”

Our only defense to vile and degrading nonverbal speech is to produce moral and uplifting speech (verbal and nonverbal) to combat the former. It can never be right for government to decide what types of speech, verbal or nonverbal, shall be allowed; suppressing the one is no different from suppressing the other: Both boil down to thought control, which is just another word for tyranny.

No matter how irredeemable some communication is, suppressing it comes at too high a moral cost.


My thoughts on this topic are driven in part by this story, but also by some of the bizarre and nauseating “installations” and “performance art” that has littered the fine arts for some years now… works that serve as defining examples of charlatanism, such as segmented human corpses, sexual self-mutilation, and the antics of people like, e.g., Lisa Suckdog.

Cross-posted on Big Lizards

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Can’t it be both?

BadgerHawk on July 20, 2009 at 9:05 AM

Why yes, it could be both protected and prosecuted. Under the current administration, I would expect that.

However, as I posted at Big Lizards, I think that there is a recognized Right to non-verbal speech. I also believe that it can be regulated(as is verbal speech) by the Legislature, and those regulations judged by the Courts. I cannot see any reason to give the two forms of expression different treatments under Just Law.

Mr Michael on July 20, 2009 at 11:28 AM

Hopefully, the position can be articulated so that it is unequivocal.

Something that I will note is that, as always, our ‘Freedom of Speech’ is only vis-a-vis the government. The government cannot restrict our speech, but any other entity can.

E.g., my ‘speech’ on this website can be suppressed by the owners, for any reason, and at any time, and protesting based on my ‘freedom of speech’ is meaningless.

From this, I feel that it is clear that the Founders believed that this freedom had to be guaranteed against entities that had the ability to compel obedience (which the government does).

I believe that nonverbal communication should be given the same protection that speech has, provided that the communication is clear an unambiguous, and that the communication could not be carried out adequately in speech. The sex example above is not clear (because sex is no longer seen as an expression of love, necessarily), and we have many different ways of expressing a wide range of affection.

Scott H on July 20, 2009 at 1:30 PM

(1) The notion that there is no general right to non-verbal conduct has things precisely backwards in a system of limited government having specific enumerated powers. While it is doubtless the case that many human behaviors are destructive and socially undesireable, it is nonetheless up to the government to justify its regulation of individual conduct by reference to some power that the people have delegated to it.

(2) Current ConLaw doctrine makes this a regrettably low bar in the normal case. Most human activities can be reached under the Commerce Clause authority of the federal government, or the general police power of state and local governments.

(3) The Supreme Court has held, and I agree, that where human behavior is freighted with expressive content, the First Amendment operates as a limitation on government authority, and the bar for government regulation is much higher. Specifically, conduct that is intended to convey an idea or message that is likely to be understood by others may only be regulated only on a showing that the law furthers an important government purpose unrelated to the supression of expression, and is no more restrictive than necessary to achieve that purpose. I think that it is an appropriate balancing test that permits truly important, content-neutral regulation while invalidating the authoritarian and picayune.

Centerfire on July 20, 2009 at 4:30 PM

A useful analytical tool:

Some speech is act.
Not all act is speech.

When the minister or government bureaucrat declares “I now pronounce you husband and wife” he is performing an act.

But when I burn a flag, I am not engaging in speech except in the imaginations of my pot-head friends cheering me on.

The Supreme Court, in my opinion, failed to grasp Logic 101 when they declared that flag-burning is speech. Only to a very confused individual is it speech.

jeff_from_mpls on July 21, 2009 at 11:01 AM

I’d differ with the thesis that “There is no general “right” to nonverbal “speech,” …..”, although I do agree that some of it should (or could) be banned without doing any violence to the Constitution.

If such ‘nonverbal’ speech is in conjunction with political activity, it’s pretty much protected. The right to peaceably assemble, and all that. And flag-burning is fairly clearly political speech, when it doesn’t involve theft and vandalism. Exercise of Religion gets pretty much the same protection, which puts your ‘Catholic Mass’ example pretty much outside the realm of Constitutional possibility.

Performance art, OTOH? I don’t read anything in the Constitution that grants anyone the right to absolute freedom of Art. Liberty is a fairly narrow razorback ridge, and there are seriously slippery slopes on both sides of that ridge.

While I’m of the opinion that we’ve slid a good ways down one slope of that particular ridge, we don’t need to pull ourselves back to the top just to throw ourselves down the opposite side.

jefferson101 on July 21, 2009 at 1:52 PM