Unspun Logo

Free Speech in the Blogosphere

Posted by Rick · April 5th, 2004 · 5 Comments

I spent the majority of my blogging time this weekend actually writing on another blog, in the comments section, where a hearty — if mostly unhealthy — discussion was going on between Kossacks, hardcore right-wingers and a smattering of people who, like me, don’t really belong to either group.

The Kossacks, apparently so-named because they follow the writings of Markos Moulitas Zúniga — nicknamed “Kos” and the owner of The Daily Kos the way “dittoheads” adhere to Rush Limbaugh — were apparently fired up by the fact that Michael Friedman of Fried Man fame had decided that “talk is cheap” and “wanted to do something that mattered”, so “[t]he obvious thing was to go after his advertisers.” Ironically, he called this effort “the anti-Kos jihad.”

This “jihad” was itself inspired because of a comment Kos had made wherein he noted (apparently correctly) that the four men who were recently killed in Fallujah were mercenaries and that he felt “nothing over the death of mercenaries.” In fact, his response to their deaths was put succinctly, if crudely and insensitively, as “Screw them.”

My involvement had nothing to do with the substantive questions regarding the four mercenaries. My involvement started when I agreed with Michael Friedman on two points: 1) The Kos article (more of a short comment than an article) was out of line and 2) Friedman was opening a can of worms by going after Kos’ advertisers in an effort to punish Kos’ speech.

As I did in my comment there (ultimately, three separate comments, actually; and this morning a fourth was added on a tangentially-related issue), let me make one thing perfectly clear: the First Amendment restricts the actions of governments in the United States. It does this at all levels — federal, state and local. It does not restrict the actions of private parties. Some states have laws which extend the First Amendment to private parties in limited situations. These laws vary from state to state. Some allow private parties equitable remedies (e.g., injunctions) and some allow for economic recovery (damages). Mostly, they have not allowed for actions against individuals like Michael Friedman who attempt to punish speech by going after a speaker’s advertisers. Even California’s “Leonard Law” which redistributes speech rights — and, ironically, was driven by conservatives irritated that speech codes on private school campuses prevented them from using politically-insensitive language — has been applied to schools and shopping malls, but not to individuals who restrict the speech of others. (See Eule [completed by Varat] “Symposium: Voices of the People: Essays on Constitutional Democracy in Memory of Professor Julian N. Eule: Transporting First Amendment Norms to the Private Sector,” August 1998, 45 UCLA L. Rev. 1537, esp. pages 1590-1600.)

So there is no question that Michael Friedman’s actions are legal. I’m not even going to say they are immoral — although perhaps an argument could be made that they are. I did (and do), however, contend that they were wrong.

They were wrong because it is wrong to suppress, or attempt to suppress, the speech of others merely because they disagree with you or you find their speech offensive. And to paraphrase the Superior Court, Appellate Division, of New Jersey, “The flow of free speech in today’s society is too important to be cut off simply to enhance the…ambience in [the blogosphere].” (Cf. New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corporation (1994) 650 A.2d 757, 780 [138 N.J. 326., 1994 N.J. LEXIS 1283, 52 A.L.R.5th 777].)

A free and open society — indeed, especially the closest variant of that: the democratically-inspired republic of the United States of America — depends upon the ability of “every person and of every group to make their views known, however popular or unpopular they may be, and the right of the public to hear them and learn from them.” (New Jersey Coalition Against War in the Middle East, supra, at p. 780.) Silencing people because they are uncouth is antithetical to the free exchange of ideas.

It’s no surprise, however, that the preferred method of discourse in America today is shouting others down and silencing those with whom you disagree. Americans today are less and less capable at producing coherent and logical arguments themselves, so the next best thing is to make sure that your opponent’s comments — which may be equally incoherent and illogical (but that isn’t the point) — cannot be heard, even if they somehow manage to be spoken. This is exemplified on “news” stations which set up people believed to have opposing points of view so that the “news-viewing” public can be entertained with a verbal equivalent of the WWF (Worldwide “Wrestling” Federation, for those who have the good fortune not to have knowledge of this show). Rather than allowing one’s opponent to make an argument (if he or she can), the talking heads begin bashing one another — and may the strongest, most emotive, most entertaining voice win. Straw men are repeatedly set up and knocked down. Ad hominem tag teams with red herrings when that doesn’t work.

As I said to Mr. Friedman — both on his blog and in private email exchanges (in which he was classy and polite) — this is understandable when we’re talking about television. The talking heads only have so many minutes to prove themselves the better showman. If they don’t do this, they won’t get invited back. After all, as another (also polite and classy) writer said to me in an email, “we geeks have short attention spans!” It’s not just geeks, friend; it’s America.

If there is an excuse for this on television, there is none in the so-called blogosphere. Here, there is plenty of room for boors and bores, conservatives and liberals, Republicans and Democrats and a host of others.

Therefore, the better path would be to allow one’s opponent to freely speak his or her mind, even if they blow their whole wad in a withered vocabulary which can only respond “screw them” to the deaths of human beings who were doing something they didn’t like. Afterwards, you merely need to point out the hypocritical inhumanity of the statement. Then move on to show — again, if you can — why your point of view should prevail. For example, why should employees of private companies be carrying weapons in hostile militarily-occupied areas? (I’m not saying they shouldn’t — I’m not saying they should — I’m saying make the case.)

People who end up incapable of making a decent case, or who stumble and refuse to right themselves, will ultimately fail in their mission, whatever that mission may be. You can help them along by providing an alternative point of view that is supported by unassailable reason — or at least with something upon which others can hang their own decisions or beliefs.

Shouting others down, using pure ad hominem (such as trying to draw “liberals” as a term equivalent with “unpatriotic” and “conservatives” as co-extensive with “patriots”) and red herrings (such as trying to say the discussion is about patriotism when it is really about whether we should be doing what we’re doing in the first place) is a form of laziness at best and outright cowardice at worst. When you cannot build a logical alternative argument to the one you wish to challenge because it’s too hard, it’s much easier to silence or distract. When you are afraid of what looking at another’s point of view will do to your own, you’re simply a coward.

And when it comes to boorish and insensitive comments, sometimes you just have to consider the source, maybe even feel a little sad that this is the best they can do, and move on.

Categories: Freedom of Speech


5 responses so far ↓

  • 1 Michael Friedman // Apr 5, 2004 at 8:36 am

    I partially agree with you and partially do not.

    For what it’s worth, I think it’s fine to go after his advertisers, especially as they are politicians and the political battlefield is mostly speech. However, I have made no attempt, for example, to identify his hosting service and put pressure on them. I think that would be crossing the line.

    I think we both agree there is a line but we disagree on its location.

  • 2 Rick // Apr 5, 2004 at 8:55 am

    You and I are, indeed, in partial agreement. And, for what it’s worth, I’ve enjoyed the discussions I’ve had with you. Those discussions also lead me to reading a couple of interesting law review articles — you might be surprised to know that one with which I disagreed argued that politically-inspired economic boycotts should not be constitutionally-protected. It was thought by that writer (I don’t have the text or a reference to it with me right now, but I can get it if you want) that anyone who participated in them should be held civilly-liable for damages. I disagree.

    However, I also don’t think the part where you and I disagree is just about “where to draw the line.”

    The closest I come to recognizing the need for a line is with talking heads on television, but I lament that situation; I don’t agree it calls for line-drawing based on any First Amendment grounds.

    I quite frankly think that intelligent people can ignore ignorance and insensitivity. After all, even the most intelligent will fall victim to saying ignorant and insensitive things sometimes. (I understand that you think Kos does this much of the time, not just sometimes.)

    And I do not mean to cast aspersions on those who disagree with me when I say “I think intelligent people…”; I’m not saying those who disagree with me are unintelligent. I am only saying what I said: That it’s possible for intelligent people to ignore ignorance and insenstivity.

    The traditional non-protected speech areas, such as advocating violence, etc., I would agree should not be ignored or privileged in any way. Those are special cases and not even the government is restricted under the First Amendment from dealing with them.

    Other than that, I think what I’ve said before. I can read Kos, or not. I can ignore Kos, or not. Trying to coerce his speech is not right. Logically arguing against him is the best approach.

    And let’s face it: It’s not like you were going to support his advertisers anyway, right? So if they did not of their own accord choose to distance themselves from his comments, that would provide more fodder for you to argue that people should not support or vote for them! By putting them on some kind of alert, you gave them an opportunity to continue to oppose your other views! 😉

  • 3 Truthdog // Apr 5, 2004 at 12:26 pm

    Those playing the freedom card are mush-heads (such as yourself).

    There is a thing called FREEDOM of ASSOCIATION, which implies freedom to not associate – as some of the advertisers and de-linkers have chosen within their rights.

    There is a thing called FREEDOM of SPEECH which implies that anyone can speak out against Kos or to inform adverstisers.

    As usual, the Leftists playing the “Freedom card” are tyring to get YOU to throw away your rights, i.e. They want YOU to SHUT UP WHILE KOS SPEAKS.

    They want you to choose to be a slave in the name of “free speech.”


  • 4 Rick // Apr 5, 2004 at 12:45 pm


    First, thank you for playing. I appreciate it.

    Freedom of Association is, indeed, a First Amendment right. And anyone is free to exercise that right. Nothing in any of my posts here or at Fried Man indicates otherwise.

    I did not take issue with the advertisers for pulling their ads. I took issue with the idea of going to the advertisers — a move which was sure to put them on notice of a potential boycott issue. This was enhanced by Mr. Friedman’s comments that he wanted “to go after his [Kos’] advertisers.” It’s further enhanced by his latest post in which he states that Jeff Seemann, who has CHOSEN to associate with Kos, is “going to be a tough nut to crack.” He encourages people to push it to local media.

    This move makes no sense unless there is an attempt to abrogate Seemann’s freedom of association which you were trumpeting just moments ago.

    So now the points are clearly presented that: Kos’ exercising of a speech act is reason to try to get his advertising dollars dried up and any advertiser who chooses to associate with The Daily Kos must be taken down, as well.

    It’s (so far) perfectly legal for Mr. Friedman, you and anyone else who wishes to do this to go ahead and do it. The First Amendment — including the freedom of association clause and the freedom of speech clause — forbid the government from doing it; they do not forbid private citizens.

    This does, however, make it clear just exactly what those of you who have been pushing this issue feel about the reality of freedom of speech and freedom of association. In true Orwellian fashion, all the while you are using it as a reason to justify what you are doing, you believe it’s only available to those you decide may have it.

    And that would, right now, appear to be neither freedom of speech for The Daily Kos nor freedom of association for Jeff Seemann of Ohio.

  • 5 Truthdog // Apr 5, 2004 at 1:48 pm

    Contacting adverstisers is Friedman’s right. Contacting the media is a right (and a responsibility). Boycotting is inherent in the right to free association. Nobody is holding a gun to Seemann and telling him to associate with. Nobody is holding a gun to the adverstisers heads.

    At the end of the day, Semann STILL MAKES HIS CHOICES BY HIS OWN FREE WILL. As does the media, Kos, the advertisers and the blog-reading public.

    In true Orwellian fashion, you are attempting to deceive people into thinking that speaking their minds is not their right, that FREEDOM IS SLAVERY and that keeping their mouths shut is free speech.

    Thanks for playing. You can try to guilt and shame us into slavery all day, BUT WE ARE NOT BUYING.

Leave a Comment