The language around free speech in civil-libertarian circles is flawed

John Ohno on 2018-05-02

There’s something that bothers me about the way we talk about speech. By ‘we’, I mean not just self-defined anarchists but the broader scope of civil-libertarians, from the EFF to the ACLU.

There are terms like “chilling effects” that, in denotation, are really well-defined, but in connotation are almost dog whistles. We cause a chilling effect when we create an environment where saying certain things has a social cost, and this is basically always framed as bad. But, it’s also a useful tool — when we create a code of conduct, set ground rules for our own spaces, encourage etiquette, or give someone a dirty look when they behave boorishly, we are using chilling effects to discourage certain kinds of mostly-communicative behaviors.

If you’re using soft power to shape the way people communicate in order to make a society work better, that’s an improvement over using hard power to police speech, from the perspective of anybody who might violate it in good faith, right? Having soft-power-oriented structures in place lets people choose to violate them when they feel like they must, & lets them change if it’s decided they’re counterproductive. It ultimately has the flexibility that hard power lacks: the upper limit on punishment is solitude, and each person chooses the extent to which they agree with enforcement.

So, the bigger deal is identifying soft power and understanding it *as* power. And, we do that pretty well in many cases (though newbie anarchists often don’t).

The freeze peach crowd does it well too, but can’t distinguish soft power used toward positive ends from soft power used toward negative ends (or sometimes can’t distinguish soft power from hard power). It makes sense: after all, when it’s used in the context of an existing hierarchical dynamic based on hard power, and acts in conjunction with the threat of heavily imbalanced hard power, it acts as a threat toward those who go against the system. Nobody wants to get a chilling effect produced by the FBI or FSB, because ignoring it might mean a death sentence, and organizations who are used to looking at environments where a few powerful actors dominate media (such as, well, every environment prior to around 2005) will get strange results if they apply their normal tools of analysis to equitable groups with power ratios hovering around 1.

If a group decides, collectively, to write a code of conduct that discourages certain kinds of speech, this is fundamentally different from a government writing a law that forbids certain kinds of speech. For one, the consequences are not comparable: the most the group can do is refuse to let you in (and for every constraint in some group’s code of conduct, you can find another group without that constraint or with that constraint reversed), while a government can imprison you or kill you. For another, forgiveness is collective in the case of the group: if as little as a third of the members of an equitable group decide that what you did was OK, the letter of the law ceases to matter, because you can avoid coming into contact with the rest; in the case of a government, forgiveness has a single point of failure & a structure designed to punish anyone who acts upon forgiveness at lower levels. For instance, Edward Snowden could not return to the United States even if nearly everyone decided he was in the right, unless he got a pardon from the president; if he tried, anybody who helped him would be liable to be imprisoned.

Getting rid of the state (or even tuning its presence in our lives down to a dull roar) means needing to understand how to wield soft power to cultivate the health of your community, and knowing if and when hard power becomes necessary. A big part of that is going to be getting rid of the idea that soft power is inherently cowardly or dishonest.

I don’t think soft power is even particularly subtle — and I’m autistic, for fuck’s sake. It becomes obvious if you look for it.

When it comes down to it, soft power means human flexibility over rules-lawyering, and that means that bans are replaced with chilling effects. That’s what progress toward humane consensus-based self-governance looks like.