The Roman historian Sallust, in his work, “the Catiline Wars”, touches on such a point. At the point, I’m going to quote, the Roman Senate has just discovered the names of the people who conspired with Catiline in his attempt to overthrow the state, and they’re debating whether they should be executed, which under normal Roman Law,would not be the punishment for their crime. Caesar, arguing against the adoption of a special punishment, points out (bolding mine):
Captain Amazing, a most amazing quotation. As Sallust might have said, “Sub sole nihil novi est” … there is nothing new under the sun.
Yet despite the fact that this was known 2,000 odd years ago, people are still making the exact same mistake … Sub sole nihil novi est indeed …
w.
In this respect, we do agree completely. But when it comes to free speech, we have always been in an “in between”-state of good cases being (bad) precedents (thanks for reminding us of Sallust, Captain Amazing).
We have agreed that whenever someone shouts fire into a crowded theatre, he should be facing consequences.
Why?
Would we blame him if an ensuing panic had let to harm if there actually had been a fire, threatening to roast everyone inside? Unlikely*; his word(s) would have reflected a reality able to threaten our life; his warning was meant to ensure that we became aware of the change into danger and give us the opportunity to get out of harm’s way.
The gravity of the danger and its closeness make it impossible for the recipients of such a warning to validate its truthfulness, we have to trust it and act accordingly, despite the danger that, in turn, ensues by our swift actions.
That’s why even resolute defenders of free speech agree to punish anyone who misleads us into the frame of mind that comes with the expectation of grave and imminent danger.
But this is already a limitation of free speech: we acknowledge society’s right to sit in judgment of our words and punish us for them if, in the balance of rights, free speech was found lighter.
And this was not the only situation where we agreed to let society balance the need for truth versus the right to speak freely.
Though slander and libel might lead to a life threatening danger, depending on circumstance, this possibility is not a prerequisite to allow sanctions against the perpetrator.
Once again, we do a balancing act between harm (the factual and potential one) against free speech, and the later one might not prevail, won’t if the statements are shown to be (deliberate) lies.
But is the distinction between truth, opinion and lie always a simple one? What circumstances have to be fulfilled to show that harm was (intentionally) done or could be done?
Finally, when exactly do we reach the point where the good case might – or must – be called the bad precedent?
You said before (please, correct me if I’m wrong) that you could see reason in the German law regarding “Volksverhetzung” (Agitation of the People) since it limited speech only when it was “capable of disturbing the public peace”.
But what does that mean?
Lets take a look at the German law in all its wordiness:
Section 130 Agitation of the People
(1) Whoever, in a manner that is capable of disturbing the public peace:
-
incites hatred against segments of the population or calls for violent or arbitrary measures against them; or
-
assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population,
shall be punished with imprisonment from three months to five years.
(2) Whoever:
- with respect to writings (Section 11 subsection (3)), which incite hatred against segments of the population or a national, racial or religious group, or one characterized by its folk customs, which call for violent or arbitrary measures against them, or which assault the human dignity of others by insulting, maliciously maligning or defaming segments of the population or a previously indicated group:
a) disseminates them;
b) publicly displays, posts, presents, or otherwise makes them accessible;
c) offers, gives or makes accessible to a person under eighteen years; or
(d) produces, obtains, supplies, stocks, offers, announces, commends, undertakes to import or export them, in order to use them or copies obtained from them within the meaning of numbers a through c or facilitate such use by another; or
- disseminates a presentation of the content indicated in number 1 by radio,
shall be punished with imprisonment for not more than three years or a fine.
(3) Whoever publicly or in a meeting approves of, denies or renders harmless an act committed under the rule of National Socialism of the type indicated in Section 220a subsection (1), in a manner capable of disturbing the public piece shall be punished with imprisonment for not more than five years or a fine.
(4) Subsection (2) shall also apply to writings (Section 11 subsection (3)) with content such as is indicated in subsection (3).
(5) In cases under subsection (2), also in conjunction with subsection (4), and in cases of subsection (3), Section 86 subsection (3), shall apply correspondingly.
If we agreed to trim down the law to instances when the peace is disturbed by lies meant to do that, we’d still face the challenge to define a) a lie in these circumstances and b) disturbance and c) a measure for both to find an appropriate punishment.
Might it be better to simply state:
Whoever, in a manner that is capable of disturbing the public peace lied:
shall be punished with imprisonment from three months to five years.
Then it would be up to the judges alone to decide what (a) and (b) mean and what kind of © is justified; and we already know that this isn’t the way to avoid misuse either. We would simply lay the responsibility largely on one of the powers and not share it among all three of them.
So, what to do when it comes to the pesky details in dealing with the difficult task to protect freedom but also keep the peace in societies that are complex, highly populated, quite often culturally heterogeneous and rarely well informed?
Addendum: blame Captain Amazing; he nudged me into thinking of a speech, never held, often heard, that illustrates perfectly (imo) the difficult distinction of truth and lies when we enter public discourse …
ANTONY
Friends, Romans, countrymen, lend me your ears;
I come to bury Caesar, not to praise him.
The evil that men do lives after them;
The good is oft interred with their bones;
So let it be with Caesar. The noble Brutus
Hath told you Caesar was ambitious:
If it were so, it was a grievous fault,
And grievously hath Caesar answer’d it.
Here, under leave of Brutus and the rest–
For Brutus is an honourable man;
So are they all, all honourable men–
Come I to speak in Caesar’s funeral.
He was my friend, faithful and just to me:
But Brutus says he was ambitious;
And Brutus is an honourable man.
He hath brought many captives home to Rome
Whose ransoms did the general coffers fill:
Did this in Caesar seem ambitious?
When that the poor have cried, Caesar hath wept:
Ambition should be made of sterner stuff:
Yet Brutus says he was ambitious;
And Brutus is an honourable man.
You all did see that on the Lupercal
I thrice presented him a kingly crown,
Which he did thrice refuse: was this ambition?
Yet Brutus says he was ambitious;
And, sure, he is an honourable man.
I speak not to disprove what Brutus spoke,
But here I am to speak what I do know.
You all did love him once, not without cause:
What cause withholds you then, to mourn for him?
O judgment! thou art fled to brutish beasts,
And men have lost their reason. Bear with me;
My heart is in the coffin there with Caesar,
And I must pause till it come back to me.
First Citizen
Methinks there is much reason in his sayings.
(…)
Fourth Citizen
Now mark him, he begins again to speak.
ANTONY
But yesterday the word of Caesar might
Have stood against the world; now lies he there.
And none so poor to do him reverence.
O masters, if I were disposed to stir
Your hearts and minds to mutiny and rage,
I should do Brutus wrong, and Cassius wrong,
Who, you all know, are honourable men:
I will not do them wrong; I rather choose
To wrong the dead, to wrong myself and you,
Than I will wrong such honourable men.
But here’s a parchment with the seal of Caesar;
I found it in his closet, 'tis his will:
Let but the commons hear this testament–
Which, pardon me, I do not mean to read–
And they would go and kiss dead Caesar’s wounds
And dip their napkins in his sacred blood,
Yea, beg a hair of him for memory,
And, dying, mention it within their wills,
Bequeathing it as a rich legacy
We know how this goes on and where it leads to …
- though not impossible; if, e.g., he were a fireman we’d expect him to foresee the likelihood of a panic, its dangers, and at least try to find a way to keep the people calm and still stir them away from the fire.
wintertime, thanks for an excellent post with a great quotation.
I agree that there need to be restrictions on speech in two circumstances:
-
Yelling “fire” in a crowded theatre when there is no fire, and
-
Inciting people to riot
The “fire in a theatre” illustration is very rare. I’ve never seen an actual case involving that issue. The big issue is inciting people to riot.
And in that issue, it is immaterial to me whether the person doing the inciting is using lies, truths, or pictures and sign languate. The question is, is he whipping up a crowd to commit offenses against the public order? If so, that is the crime. The question is not whether he is lying or telling the truth. It is whether he is pushing a crowd to turn on their neighbors and commit offenses against them.
Even in the formal world of mathematics, as Godel proved, there are statements whose truth simply cannot be determined. The same is much more true in the real world. The government has no business trying to unravel the million tangled threads. But more to the point, there is no universal “Lie Detector”, there is no machine and no person who can take a whole pile of statements and divide them into two stacks, one stack for the true statements and the other for lies and untruths.
I am reminded of the story of the King who decided he was fed up with everyone around him lying. Being a good German king, he passed a law saying that anyone who told a lie would be hung by the neck until dead. “That’ll fix those liars,” the King said.
The morning after the issuance of the decree, a wandering idiot named Nasruddin turned up at the gates of the city as he did every day to sell his basket of fruit. When they asked him why he’d come to the city, he said “I just came here to be hung by the neck until dead.”
“That’s a God damned lie, I know you’re here to sell your fruit,” roared the Captain of the Guard, “and you know what we do to liars in this city?”
“Not a clue,” said Nasruddin, "what do you do to liars here?
“We hang them by the neck until they are … oh … wait a minute …”
As Godel proved, there are statements whose truth content simply cannot be determined. For the government to get into the business of trying to do so is a grave and very dangerous mistake.
How these idiotic types of laws work out in practice …
Of course, the “illegal activities” include criticizing the state in any form … but it is interesting that it has been applied to “rape, adultery, drug-related offenses, and homosexual behavior.” Like I said above, the fact that it may work in Germany due to their particular culture means nothing about whether the government should have such powers.
DEATH TO THE BLOGGERS! Yeah, that has a nice ring to it …