Many readers are aware of my friend Ken’s initiative to help bloggers who are attacked for what they write by putting up the Popehat Signal, a call for lawyers and supporters to back a blogger who has been threatened or sued by what Ken calls a “censorious asshat.” By this, he’s become the “go to” guy in the blawgosphere for those in need of pro bono assistance in fending off assaults on their First Amendment rights.
It goes in hand with Ken’s other interest, naming and shaming those who have the misfortune of coming across his radar.
Speech has consequences. It ought to.
In America, we have an elaborate set of laws strictly limiting the government’s ability to inflict those consequences. That is right and fit; the First Amendment prevents the government from punishing us for most speech.
Private consequences are something else. Speech is designed to invoke private and social consequences, whether the speech is “venti mocha no whip, please,” or “I love you,” or “fuck off.” The private and social consequences of your speech — whether they come from a barista, or your spouse, or people online, or people at whom you shout on the street — represent the free speech and freedom of association of others.
Ken’s efforts have been wildly popular, though not with the targets of his invective. While I agree with Ken in principle, and support his efforts to bolster free speech in general, there remains a strong element of ambivalence in how things have developed. There are three primary reasons: first, it’s not always clear that the targets of his criticism deserve it. This wouldn’t be particularly troubling, except that his popularity has given rise to not merely the criticism of one person, or one blog, but a large group of followers as well who don’t appear particularly concerned or careful to be sure that they have scrutinized the “evidence” of wrongdoing, but rather blindly jump on the bandwagon.
The second issue is one of personal responsibility. The potential for someone either threatening or suing those of us who publish assertions keeps us in line, as it should. Even when it’s putatively wrong to seek legal redress for public utterances, whether because they are true even if critical or insulting, or opinion and thus outside the realm of defamation, there are times when the issue is sufficiently close, or the assertion sufficiently harmful, unwarranted and unjustifiable, that the blogger needs to bear the responsibility for his words.
Another aspect is that there are many in the world in need of, and deserving, pro bono legal support. What of the indigent innocent man convicted of a heinous crime? Is he not deserving? So it troubles me that Ken rallies free legal support only for bloggers, and without consideration of whether they have the ability to provide for their own defense, or they are supported by others, usually political, who can readily manage the defense of one of their own. But they don’t have to once the Popehat Signal goes up and friends of the First Amendment rush to their aid.
Like Ken, I fully agree that defense of the First Amendment shouldn’t be limited to those with whom we share a political affinity. It’s there for all of us, whether we agree or not, and a principled view is to ignore the message and defend the messenger’s rights. But why is the messenger absolved of all responsibility? What about the messenger’s well-to-do friends and allies? It’s not that Ken is wrong to assume the burden, but that by doing so, he lifts the burden from others who could, and should, shoulder it, or at least share in it. Where is their responsibility in all this? It doesn’t appear that anybody gives this any thought at all.
Third, there are times when some seriously harmful things are said, and it shouldn’t be dismissed so cavalierly. In the latest chapter, some conservative bloggers called someone a pedophile. That’s harsh stuff, and while there is some support for the “opinion,” he has never been so adjudicated and it’s by no means a fact. The target of this assertion, on the other hand, is an awful person in his own right, and if bad things were said about a person, this would be the guy you would say them about.
The bloggers who decided to call this disgraceful mutt a pedophile didn’t ask in advance whether anyone else was cool with their characterization, but when the mutt sued, they ran for free help from the Popehat Signal. They are highly political bloggers, and could have sought the comfort of others who share their politics, but didn’t. Indeed, there is no support from their own, who are more than happy to let Ken manage their principled First Amendment defense so they can spend their time on the things that interest them more.
But this isn’t a run-of-the-mill SLAPP suit, frivolous in nature and designed to limit the conservative bloggers’ public participation. They called the guy a ped. There is no political virtue in doing this, and I have deep reservations about whether this is opinion and thus not defamatory. This was a basic personal attack of a horrendous nature against a political enemy. If it had been anyone else, the Popehat Signal might have gone up for the other side.
Of course, the target has done very bad things as well. And he appears to have immediately begun a campaign to damage Ken for his support of First Amendment principles. A problem with the path taken here by both sides is that it leads to thermonuclear war which obliterates both sides, and neither plans to back down or concede defeat.
Another problem is that even a disgraceful mutt like the target here shouldn’t be the subject of unwarranted, and valueless, personal attacks. One of the core values of criminal defense is that we protect the constitutional rights of the very worst of society, and we recognize that by protecting their rights, we protect the rights of everyone.
It’s not at all clear whose rights deserve to be protected here. It’s ugly all around, and not everyone who asks for the Popehat Signal deserves it. While they are entitled to a defense, their first line is personal responsibility, and their second line should be their political friends and natural allies, who appear perfectly happy to let Ken and his fans carry their water.
But the Popehat Signal has gone up, and fans are rushing to help with offers of legal assistance, technical support and money. While such grass roots support speaks well of the supporters, I can’t help but wonder whether the better answer this time would be a pox on all their houses.