What are the limits on free speech and how are they being tested?
What are the limits of free speech? I know, I already sound like a closet Stalinist just for asking that, but the question should be considered. There are a lot of “free speech absolutists” about, (mainly on Twitter) but even though many people claim “there should be no restrictions on speech,” they don’t mean that absolutely 100,000,000%.
What about child pornography - should that be allowed on free speech grounds? Or counterfeit money? Is my right to free expression being suppressed because I cannot create an artwork that looks exactly like legal tender and then engage in a “performance” where I hand over this artwork to an unsuspecting barman in exchange for large quantities of craft beer from a local micro-brewery?
You might think I am being facetious, and that’s because I am. There are many who claim they oppose all limits on free speech, no matter how offensive the speech is, but still oppose my performance art. People saying “I disapprove of what you say, but I will defend to the death your right to say it,” (and incorrectly attributing this to Voltaire) in reality don’t die so that I can use speech to get free beer. So, the answer to the questions raised above is technically yes, but practically we cannot allow counterfeiting even if it restricts some freedom of expression.
You’re not entitled to a platform
My point is that almost no-one believes that all speech and expression should be allowed, or that ANYTHING can be defined as free expression. Once you accept that, the debate is all a matter of the degree that we apply limits to speech.
Related to this is the point that you can have the freedom to say whatever you want, but you don’t have a right to a platform. Can I make a speech entitled “Why I hate Margaret Thatcher” to my local East London Conservative Club and demand that all members be present? Of course not, that’s pointlessly antagonistic and obnoxious. Are they suppressing my free speech by not allowing me to do my talk and insisting that people turn up? Again, of course not. I can say whatever I like about Thatcher, but no one has to listen.
This applies to tech platforms, which are a form of private space. They get to decide what we can say on them, within existing laws on discrimination, fraud, etc. If you tweet an opinion and people tell you you’re wrong, that’s not a threat to your freedom of speech. Threats to freedom of speech are when you get fined or thrown in jail for expressing an opinion.
The bull in a china shop experience
Earlier this year, podcaster and internet personality Joe Rogan was thrown headlong into the debate like an angry bull hopped up on testosterone injections jumping with complete abandoned into a convention of extremely delicate china retail. His case is illustrative of the limits of free speech and what the consequences of crossing those limits should be.
Rogan, for the lucky people who haven’t heard of him, is a comedian, MMA commentator and host of the world’s most listened to podcast. In the show, he sits down with people and shoots the shit on everything from wrestling to politics. He has a huge platform and famous people are keen to reach his highly engaged, largely (or exclusively) male fan base. Past guests have included a who’s-who of people you want on your podcast including Kanye West, Elon Musk, Jordan Peterson and Bernie Sanders.
Criticism of Rogan
Rogan is a divisive figure on the left, although he has his fans. He has also had some unpleasant, less famous, people on his show, including Ben Shapiro and Carl Benjamin (aka Sargon of Akkad - the anti-feminist YouTuber and not the Akkadian Emperor from the 23rd century BCE, although the latter would be a more impressive podcast guest). There are people on the left who hate him in a knee-jerk way and say he’s as right-wing as Peterson, Shapiro and Benjamin because he’s had them on the show.
I’m not a fan of Rogan, although I haven’t listened to loads of episodes of his podcast. It’s worth noting Rogan endorsed Sanders in the 2020 Democratic Party primaries and does have left-wing guests on his show. I don’t think Rogan is as right-wing as Peterson, Shapiro and Benjamin, but he has given them a big platform to spread their views.
Some have argued that the left doesn’t like Rogan because he sends out the wrong cultural signals by not dressing like a cool liberal type (whatever that is supposed to be), being a blokey-bloke, talking about MMA and having insufficient quantities of beard-scratching academic talk on his show. There is probably some truth to this, and like/hating Rogan has certainly become a shibboleth in some political circles. Rogan certainly shouldn’t be pelted with milkshakes for talking about MMA and doing monkey impressions on his show, although these things don’t make me like him more.
Rogan, vaccines and free speech
I do think there is a problem with Rogan, and it’s not just his choice of guests (although the world would be a better place if we fired Benjamin into space aboard one of Elon Musk’s rockets). The problem is that he doesn’t challenge his guests' opinions, so whenever Benjamin says that feminism is poison, Rogan nods thoughtfully and asks him to elaborate further. He’s no Jeremy Paxman. He’s not even Andrew Neil. But he does have more influence over how people think than anyone other than Rupert Murdoch or Mark Zuckerberg.
Rogan’s misadventure with freedom of speech is that he had Dr Robert Malone on his show who said Americans were “hypnotised” into wearing masks and taking the vaccine. During the discussion, Rogan also said that if you’re young and healthy you don’t need to get the Covid-19 vaccine.
It’s irresponsible at best for Malone to be given Rogan’s platform during a pandemic. Having a platform the size of Rogan’s means his words and his guests' opinions can cost lives, especially when discussing vaccines that are (I can’t believe I am writing this) already controversial in America. You might think differently. Let a thousand think pieces bloom.
Consequences
Rogan faced little if any consequences for this, but what did happen is illustrative of the debate around freedom of speech. He hasn’t faced arrest, a fine or persecution from the state. There has been a lot of online outrage, but his show is still as popular as ever and still books high-profile guests, so it’s hard to argue that the online outrage is a threat to his freedom of speech.
Use your speech to criticise others’ use of speech
Rogan’s podcast is hosted on Spotify, a tech platform, which as discussed, can choose who it wants to give a platform to. It’s worth pointing out that Rogan is far from the worst person on Spotify. Neo-Nazi punk band Skinful’s music is available there (no, don’t listen to the racist skinheads) and podcasts with a much smaller following than Rogan’s spread much more conspiracy theories and disinformation than his does. No-one notices, because it’s the internet. If Spotify dropped Rogan over what he said (which they won’t), they would be at best inconsistently enforcing whatever rules they have.
Rogan did, and should, face criticism for what he said and for allowing guests who have anti-vax views on his show during a pandemic. I don’t think what he did deserves the state to intervene, such would be warranted in the case of child pornography or the counterfeiting beer-buying performance art mentioned above. If it could be shown that a specific individual didn’t get vaccinated because of the podcast and died, this would be closer to shouting “fire” in a crowded theatre and might warrant state intervention, but proving it beyond all reasonable doubt would be difficult.
So, use your speech to criticise others’ use of speech is the place we ended up. Only get the state involved when there is a clear case for harm being done. This doesn’t account for the huge power imbalance caused by Rogan having a much bigger platform than the people criticising him. Although, artists such as Neil Young and Joni Mitchell used their freedom to do business however they want to withdraw their music from Spotify over Rogan’s episode. (For the record, Neil Young and Joni Mitchell are cooler than Rogan, and I don’t care what you think.)
Political speech as entertainment
There are those who will defend what Rogan said on the basis that you’re allowed to say anything you want, free speech and all that. However, as discussed above, everyone believes that there should be some limits to your freedom of speech. So, if we all agreed that restricting some speech is necessary then maybe start with the “comedian” who brings anti-vaxxers onto his hugely popular podcast during a pandemic.
The Rogan debacle speaks to a deeper trend, which also touches on the limits of speech. It’s a trend that has arisen as comedy (Rogan is notionally a comedian) and other forms of entertainment get more political in these exceedingly dark, dangerous and more serious times. It’s a trend that has come about through the growth of social media, podcasts and other new ways to get your speech out there via new technology.
Entertainment has become more political, both in terms of what is said and who makes it (i.e. who has access to the vast platforms provided by the BBC or Twitter). The problem is some comedians (and I use the term loosely when applied to Rogan) are engaged in a double standard: they want all the rights associated with free speech that everyone has but none of the responsibilities.
Rights and responsibilities
Politicians, campaigners, political journalists, etc. have special responsibilities when it comes to their speech. The things they say matter. They affect how other people understand politics and take political actions, from voting to protesting. This responsibility is not to spread misinformation, conspiracy theories or narratives that damage people’s faith in our democratic system.
This doesn’t mean that the state should get involved with their speech (unless it can be shown they have used speech directly to hurt someone, e.g. shouting “fire” in a crowded theatre). It does mean those engaged in political speech should respect the responsibilities outlined above.
Abdicating your responsibilities
Many podcasters, comedians, YouTubers, social media personalities, etc. do not exercise this responsibility. They use the fact that they’re entertainers as an excuse for why they don’t need to think about what they say or who they have on their show. They argue that we're not meant to take what they say seriously. Rogan himself said: “I’m not a doctor, I’m a fucking moron and I’m a cage fighting commentator who’s a dirty stand-up comedian who just told you I’m drunk most of the time and I do testosterone and I smoke a lot of weed. I’m not a respected source of information, even for me.”
Although this line is quite funny in a self-deprecating way, it does neatly remove all responsibilities from Rogan for broadcasting (potentially life-threatening) disinformation. Rogan may be a self-declared moron, but people still take what is said on his show seriously. When Rogan invites someone like Benjamin on his show and doesn’t tell jokes, but does ask political questions about the big issues facing society, then they are engaging in a political act, and as the host he has responsibilities.
Serious business
Rogan and other shows that mix politics and entertainment are clearly not just entertainment. Many have all the iconography of serious debate. These shows can’t be both light entertainment and serious discussions. If it’s a debate, then people like Rogan have a responsibility to make sure our political discourse is not damaged by letting anti-vax doctors or people like Benjamin say whatever they like. If they are light entertainment, then they shouldn’t address serious subjects in this way.
I am not saying comedians can’t be political or that politics can’t be funny. Good satire is an important part of our political discourse. This is why it’s painful when the BBC brings back Spitting Image and it’s awful. What I am saying is that if you are a comedian saying something political or trying to be funny and political, then you need to recognise your responsibilities and not hide behind being a comedian when you get criticised for abdicating your responsibilities, like Rogan does.
Lack of oversight
What I’m allowed to say in the pub is different from what I’m allowed to say on a televised political debate going out to millions (even if we are addressing the same topic) as the discussion in the pub will not have the same effect as a discussion on TV - or on Rogan’s show with his millions of listeners. The audience is different, which means the responsibilities are different, which affects your free speech rights. You have different responsibilities when you handle a toy gun and a real one as the effect can be very different.
Anyone can set up a podcast or YouTube channel or twitter account and say whatever they want to potentially an audience of millions. Obviously, not all YouTube channels or Twitter accounts have the same reach, but they all have the same level of oversight - i.e., almost none.
Rogan has built an audience for his podcast, starting from being not a particularly well-known comedian to becoming one of the most famous media personalities on the planet. He’s not a journalist and doesn't have the skills to cross-examine his guests or deconstruct their arguments. Usually, he barely challenges them at all. He doesn’t challenge people like Benjamin as much as I would challenge a friend during a discussion in the pub. He also doesn’t have any editor (journalism editor, not a sound or video editor) thinking about the news quality of what is being put out.
The citizen-creator-political-journalists media
Rogan isn’t the only interviewer who doesn’t challenge his guests enough. I have listened to podcasts, watched TV interviews and read profiles in news organisations, from the very new to ones centuries old, and I have noticed many professional and experienced journalists allowing their subjects to say outrageous, inaccurate or downright false things unchallenged. Poor quality editorial standards are not unique to YouTube channels and podcasts, but at least having an editorial process is a good start.
We didn’t need to invent indie media to have bad editorial standards, but now that the reach of indie media is enormous and the power of what you say (on a topic like Covid-19 vaccinations) can costs potentially thousands of lives, maybe it’s time to think about how we ensure quality in what is put out there. Hopefully, exposing the problems with Rogan and his lack of editorial oversight will give everyone pause to think about the standards of their content. Although, I won’t hold my breath.
If we’re going to have citizen-creator-political-journalists, where anyone can create a piece of content on politics (or any other subject) put it out there and get a huge audience then we all need to understand our responsibilities, as well as our rights. Free speech is a good thing. Having citizen-creator-political-journalists is a good thing. They mean that voices outside the mainstream, the large publications and big broadcasters get heard. However, we do need to remember our responsibilities and act accordingly.
Tackling the problem
We shouldn’t reach for state involvement in speech as the means to solve the problem of journalists/podcasters/YouTubers/internet personalities (whether they started putting out content today or are working for a centuries old newspaper) not acting responsibly with their speech. Using the state to heavily monitor journalists is a bad idea.
The state shouldn’t police the people who criticise and expose the wrongdoings of the state more than is absolutely necessary. You’re free to say what you want and not get banged up in jail, but we need to exercise some judgment in whose free speech we listen to.
Just a guy chasing downloads
Free speech improves our democracy and politics, but we can’t have free speech without the responsibility to not spread disinformation and to challenge an interviewee. We need to be more grown-up than Rogan has been over this and stop trying to abdicate the responsibilities that come with having a huge audience because he’s a comedian on Spotify and not an analyst on CNN.
Rogan won’t face any consequences for spreading misinformation about vaccines. He shouldn’t go to jail over what he said, but maybe his star should be taken down a peg or two. I wouldn’t recommend his podcast because he’s not a deep thinker or someone who engages with issues in a substantive way. He’s Just a guy chasing downloads and social shares. He’s allowed to do that, but don’t indulge him.
A better conversation about politics
Would the world be a little less right-wing without Rogan and the platform he has given to people like Peterson, Shapiro or Benjamin? Yes, probably, but he’s not the biggest issue facing the left. He also gets credit for endorsing Sanders.
There are limits to what you are allowed to say because your words can hurt people. The state should react to the clear-cut cases of harm (child pornography, shouting “fire” and then creating a stampede that kills, etc.) but we need to exercise good judgment to keep the state’s role to a minimum. That said, we all do believe in some restrictions on speech (again child pornography) so political actors pretending to be comedians like Rogan shouldn’t hide behind either free speech absolutism or the double standard that they are a comedian and not a political actor.
We need more responsible content creators, not people like Rogan who hide behind double standards. Although whilst it remains free to start a podcast or a YouTube channel there will still be bad editorial standards. We shouldn’t get rid of podcasts that are free to set up, we should be savvy information consumers and not indulge people who say anything for attention. Even if we agree, on some level, with the bullshit they are spreading. This is the way to get to a better conversation about politics where more voices can be heard.
