Are demands that speech not be punished just a childish attempt to escape consequences?

A recent piece by Max Fawcett in the National Observer invokes a number of common tropes about freedom of expression. One, which I address here, is that when people are punished for what they have said or written, they have “not been denied that right. But neither [have they] been excused from the potential consequences associated with exercising it”. The implication is that it is just as absurd ― perhaps childish ― to try to escape punishment for one’s words as it is to escape the consequences of one’s actions.

The context of Mr. Fawcett’s piece is a dispute between Jordan Peterson and the Ontario College of Psychologists, which ― like pretty much everything else Dr. Peterson-related ― I don’t care about. But this response to all manner of speech-related controversies is widespread. It is, in these terms, particularly favoured on the social justice-minded left: see, for instance, the comments of a man whom the BBC describes as engaged in “publicly shaming” people for real or perceived transgressions against progressive propriety and “ultimately getting the people ‘cancelled'”: “These times of doing whatever you want without consequences are over”, the BBC quotes him as saying. But, as Cathy Young points out just today in The Bulwark, the political right, especially in the United States, is also quite willing to visit retribution on those who say and write things it doesn’t like, even as it poses as a defender of free speech.

Why is the claim that punishment for the expression of ideas is just “consequences” and, as such, must be accepted by any reasonable adult wrong? Because the whole point of freedom ― of any freedom, not only freedom of expression or speech, but also freedom of religion, of assembly, or association for example ― is precisely freedom from certain kinds of consequences. And it is only, I think, with freedom of expression that anyone would dispute this. Imagine saying “you’re free to go to Church on Sunday, but you must accept the consequence of being fined for it”; or, “you’re free to form a union, but you must accept that you’ll be jailed if you do”. This is arrant nonsense, and everyone will instantly recognize that it is just that. The freedom of expression is no different: it is also, of course, an immunity from at least some kind of consequences attaching to its exercise.

Now, the real issue ― and again, this is true of freedoms other than that of expression ― is what consequences, imposed by whom, are off-limits. At one end of the spectrum, almost everyone agrees that it’s wrong for government to jail people for what they say, at least in most circumstances; it’s wrong to fine people for going to this or that house of worship, or to beat them up for holding a peaceful protest in a public square. At the other end, contrary to the caricature prevalent in social-justice circles, very few people, if anyone really, think that pure criticism is a forbidden consequence for speech. Again, other freedoms are mostly similar, though there is, it seems to me, a tendency in some quarters to view any criticism of (some) religious beliefs as categorically wrong; indeed, there is a perplexing overlap between the people who believe this and those who argue that even state-imposed or -backed punishment for speech is just “consequences”.

The difficult questions, when it comes to expression, are of two main sorts. First, what are the exceptions to the general principle that the state should not punish people for what they say? I don’t think anyone who accepts the legitimacy of the state denies that there are some exceptions. Fraud is committed through speech or writing, for example. But there are issues on which reasonable people disagree in good faith; hate speech is a classic example. I’m inclined to say, though, that this category of hard questions is actually a comparatively narrow one.

The bigger and perhaps more socially provocative one has to do with the vast middle part of the spectrum between state-imposed punishment on the one hand and pure criticism on the other. Does an employer have the right to fire an employees for their politics? Can a social media platform censor a story it considers to be disinformation, or indeed ban a user inclined to share such stories? Should people be able, not just to criticise someone who they think has crossed a line that should not be crossed in polite society, but to seek to get them fired from their job? How about doxxing them?

What makes these questions even more fraught is that each of them, in truth, is at least two questions, if not more. Does an employer have a legal right to fire an ideological dissident? Does an employer have a moral right to do it? And, perhaps, even if there is a moral right, should a good employer forbear from exercising it? And so on. Far too many people confuse the legal and moral issues, or think that the law should precisely track (their) morality, but here as elsewhere there may be perfectly good reasons for law and morality to diverge.

This is the stuff the “culture war” about freedom of expression is largely about; the legal debates, less so, but increasingly in the last few years. There are genuinely difficult questions there. Questions about line-drawing, for example, such as when, if ever, what would be perfectly legitimate criticism coming from one person becomes a morally reprehensible pile-on when engaged in by a large group. Questions about clashing rights, such as those that arise in relation to employers or social media, who have expressive interests of their own to set up against those of employees and users. Questions about the nature and relevance, or not, of market competition and monopoly. And no doubt many others.

When such difficult questions are debated, as they should be, nobody is served by amalgam, clichés, and misdirection. The tired claim that punishment for speech at the hands of the state ― or for that matter at the hands of an online mob ― is just “consequences” is all of these things. Yes, of course a punishment is a consequence, but if we believe in freedom of expression at all, we are committed to the principle that not every consequence that can be visited on a person for what he or she says or writes is just. What we want to know is what consequences are just, and when. Let’s talk about that.

I will try to address a particular set of questions related to this, also based on Mr. Fawcett’s piece ― specifically, on his claim that “[t]here is nothing unjust or illiberal about professional organizations enforcing codes of conduct for their members” ― in a separate post. Stay tuned.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

3 thoughts on “Consequences”

  1. Professor Sirota. Your blog raises the the issue of the proper role/ limits of a professional body in supervising its members. The primary, if not the sole, function of these bodies, and I would include law societies and provincial medical associations, should be to ensure quality of service to the public. What justification is there for these groups to sanction members for comments on matters of social or political importance? This is a very concerning development. I look forward to your discussion of this issue.

  2. I had the same thought when I read Fawcett’s piece. He just flat out ignores the fact that professional regulators are exercising coercive powers delegated by the state and doesn’t engage with the question of what obligations they to ensure that constitutional rights are upheld when exercising those powers. The rights of regulated professionals to spout off may be justifiably limited in comparison to the general public but the right of those bodies to regulate the speech of its membership using the threat of not being able to earn your livelihood certainly ought not be absolute. I am sure Fawcett would see that in a different political context. Then again I don’t expect profundity from Fawcett to begin with and have become accustomed to his special pleadings.

  3. While I would agree that discussions of freedom of speech tend to be overly simplistic, I would still like to disagree with your post on a couple of points.

    1) It’s not just the left that oversimplifies. In any discussion of freedom of speech on social media, the discussion does not need to go on long before some right-winger describes themselves as a “free speech absolutist.” Which they make it clear they mean freedom to say whatever they want without consequence.

    2) More importantly, I also feel that you do not accurately represent the “consequence” argument. Admittedly, Mr. Fawcett does not really do the argument justice either. (Normally I find him to be a good writer, but this article, not so much.)

    From your post:

    “Because the whole point of freedom ― of any freedom, not only freedom of expression or speech, but also freedom of religion, of assembly, or association for example ― is precisely freedom from certain kinds of consequences.”

    It is also broadly accepted that all freedoms and/or rights, including the freedom of speech, are limited by the fact that you may not use your freedoms or rights to harm others. As I am sure you are aware, the Supreme Court has upheld this principle in a number of cases.

    Regarding the examples you give, what makes it absurd to punish someone for going to church is that this is not something that in itself, harms others. Fraud, on the other hand, is an action that clearly harms the person being defrauded.

    Speech can be trickier, in determining harm. There are obvious cases, like death threats. Hate speech is less obvious, but there is a need to listen to the targeted community, rather than dismissing it as merely “being offended.”

    That’s the point of the “consequences” argument. In a just society, there does need to be consequences for harming others.

    For anyone who is interested in a better response to Mr. Peterson’s claims of unjust punishment, I would recommend Rachel Gilmore’s response on Twitter. Rather than just giving the “consequences” argument, she looked at the letter Mr. Peterson received from the College of Psychologists. Turns out, shockingly (not,) that Mr. Peterson was not being entirely honest.

    The College had received complaints, from clients of Mr. Peterson’s former practice, alleging harm due to the nature of his rants on social media.

    As Gary Kearny refers to above, the whole point of professional organizations, like the College of Psychologists, is to ensure that members are acting in the best interest of their clients, thereby ensuring the integrity of the profession as a whole. When looking a the actual complaint, the College was entirely within their mandate to censure Mr. Peterson.

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