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Freedom Of Speech And The Interest In Recognition

Let me begin this post by stating clearly that I think the condemnation of Don Imus's slur against the Rutgers women's basketball team, and Imus's firing by CBS and MSNBC were thoroughly justified. I also think that Imus's defenders are wrong to oppose those developments on "freedom of speech" grounds. Nevertheless, I'm uncomfortable with the direction some of my fellow Imus-detractors have taken in responding to the free speech claims, because they seem to partake of a conservative understanding of the right to free speech.

Kevin at Slant Truth uses the "First Amendment" defense:

What boggles the mind is that these people apparently have no idea what the concept of free speech in the U.S., as guaranteed by the First Amendment, actually means. ... One thing should be clear from the get-go: The First Amendment applies to the government and not to private organizations and individuals.

Kevin is right that the First Amendment, which is the extent of legal protection for free speech in the U.S., applies only to government actions. This is an important point insofar as anyone would claim that Imus ought to win a lawsuit against CBS.

Nevertheless, to restrict our consideration to Imus's legal rights under the current regime misses the point of the free speech claim. What's being claimed by (at least some of) those defening Imus on free speech grounds is not that his legal rights have been violated, but that his moral rights have been violated, so pointing to the text of the First Amendment is unhelpful. After all, we wouldn't consider it relevant if Imus's defenders pointed to the text of the Fourteenth Amendment and the Civil Rights Act to show that he didn't violate the Rutgers women's basketball players' legal rights.

My point is not that the law can be unjust -- as it happens, I think modern First Amendment jurisprudence comes fairly close to capturing the extent that there ought to be a legal right to free speech. My point is that the moral right to free speech may be broader than what we'd write into law (the essence of liberalism is the refusal to conflate what is moral with what is legal). One may hold that the moral right to free speech happens to extend only to government actions -- but then you have to make that case, rather than just pointing to the text of the First Amendment. I, on the other hand, do believe that private organizations and individuals can interfere with the right to free speech.

Lindsay at Majikthise takes a different approach to rebutting the free speech claim:

Nobody is impinging on Imus's right to free speech. He can start a blog, or get a soapbox and air his retrograde views in the local park. It's a free country.

It's true that Imus's formal right to free speech has not been violated. His throat and tongue are still quite capable of forming the words "nappy-headed hos." Nevertheless, it seems it should be obvious to anyone coming from a left background that having a formal right is a far cry from having a substantive right.

Rights exist to secure the satisfaction of important interests. A key thrust of progressive thinking has been to highlight the fact that mere formal rights are inadequate to securing those interests. So, for example, the formal right to an abortion established by Roe v. Wade is inadequate at securing women's interest in control of their reproduction, and must be made more substantive by things like funding to allow all women to be able to afford an abortion.

In the free speech case, one key factor that affects the substantive value of a the right is what kind of platform you have for making your speech heard. You speech is less free the less ability you have to get your message out. There is a clear substantive difference between having a nationally broadcast radio and TV show, and having a soap box in the park. Now, one may certainly argue that a nationally broadcast radio and TV show is far above and beyond the level of substantive value for the right to free speech that anyone is entitled to -- but again, that argument must be made, rather than dodging the issue by retreating to a purely formal right to free speech.

Kevin and Lindsay's arguments amount to pointing to the non-violation of Imus's formal legal rights in order to rebut the claim that his substantive moral rights were violated. That's not a line of thinking that I find useful. Nevertheless, I maintain my position that Kevin and Lindsay are right to applaud Imus's firing. To build what I think is a more justifiable case in favor of the firing, we have to look at what the underlying interest is that motivates the substantive moral right to free speech.

One fundamental human interest is in recognition. That is, it is good for a person to be seen by others (as well as by him- or herself) as a sentient and morally considerable being. Freedom of speech is one way that we protect the interest in recognition, because one critical way that most human beings secure recognition is through communicative action. To be (substantively) able to give honest expression to one's thoughts, and to have others hear and respond to that expression as the output of a sentient being, is necessary for achieving recognition.

But the communication facet of the interest in recognition also entails a right to choose what speech to support. Thus, as Kevin says, "Individuals have every right to control the discourse that occurs within their own spaces," or as Lindsay puts it, "They had every right to fire him for tarnishing their brands and alienating their listeners." A speaker-focused conception of free speech is only one side of a balance among the various entities involved in shaping the outcome of any speech act, all of which have an interest in recognition (among other interests).

What's more, the interest in recognition is secured not only through communication, but also through recieving respect. There is a moral right to be treated as a worthwhile human individual. This whole controversy began because Imus violated the Rutgers women's basketball team's right to respect by referring to them with terminology loaded with racist and sexist significance. Just look at any of the team members' comments (or the comments of any other people who felt caught in the cross-fire) to see the extent to which his comments impinged upon their interest in recognition. Firing Imus helped to defend the interests of anyone who might ever be at risk of being called a "nappy-headed ho," by 1) reducing Imus's future ability to commit such violations, 2) sending a counterbalancing positive message of respect to those hurt by Imus's comments, and 3) educating the rest of the country about the effects of such expression (so that future would-be Imuses will at least decide not to try to secure their own recognition at a cost to others', and at best will reconsider being the kind of person whose recognition-through-expression must come at the expense of others).

Thus firing Imus is a net gain for the human interest in recognition, despite the small cost to Imus's recognition-through-expression that he suffered through losing access to his outsized substantive capacity to speak.


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