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A while ago, I accidentally got involved in a disagreement inside a major Open Source software project. One of the participants involved told me that freedom of speech and judicial due process should only be allowed if community safety can be upheld with them, and that participant did not think they could be upheld together. My retort is below, with a few changes to hide the identity of the project.
tl;dr: Community safety is only possible if and only if freedom of speech and judicial due process are upheld.
First off, I don't think this is a hard issue, nor is it nuanced. When it comes to community safety, judicial due process is as critical as anything else in ensuring the safety of everyone involved.
As an example, say there was a woman involved with this software project that went to FOSDEM and met some other participants who were male and happened to really hit it off with one of them. They ended up chatting in a side hallway as a group with others, but the others eventually faded away to do other things until it was just the two of them talking. When they realize everyone is gone, they rejoin the main group, still chatting just fine. Nothing out of the ordinary; nothing wrong was done.
After FOSDEM, she finds his blog and realizes that he holds opinions that she doesn't like, and it makes her upset. Well, in such a polarized country, several things can happen.
- She does nothing. This is a good thing.
- She emails him privately, telling him that she is upset and why and leaves it at that. That is her right and is also not a bad thing.
- She falsely accuses him of some violation of the community code of conduct, or worse, an actual crime.
Now, (1) and (2) probably happen most of the time. But what happens when she chooses (3)?
Let's say that, hypothetically (and I mean truly hypothetically; I've never been to FOSDEM and do not know anything about it), she chooses (3).
Whose safety is at risk here? The woman's, or the man's? I think you will agree that it is the man's safety at risk, whether the safety of his position in this project, or his own personal safety.
How is his safety guarded? By due process. And it doesn't matter if the accusation is of a violation of the code of conduct or of an actual crime. With due process, he can get witnesses and she is still the one the has to prove his guilt. Whatever he has that is at stake is still safeguarded.
Thus, for the safety of a member of the community, in that situation (and many others), due process is essential.
But that is not all. It also depends on how people define “community safety.” Is it freedom from harm and harassment, or is it freedom from harm, harassment, and offense? (While there are a lot of people that equate offense with harassment, I separate the two for good reasons, which will be clear later.) The former is a good definition and the latter is a bad one. Let me explain why.
Of course, freedom from harm and harassment are essential to community safety. That much is obvious, since those freedoms are essential to having life, liberty, and the pursuit of happiness. But why isn't preventing offense a part of providing community safety? After all, isn't not being offended required for the pursuit of happiness? No, absolutely not.
The difference comes in who is responsible for the offense. Is it the speaker or is it the listener? It is actually the listener because being offended, like all feelings, is a choice, whereas being harmed or harassed is not a listener's choice, it is the speaker's choice to harm or harass. Thus, harm and harassment are the speaker's choice to remove happiness from the listener, and taking offense is the listener's choice to remove happiness from the listener, which (to put it bluntly) means that he/she is not good at pursuing happiness for himself/herself.
Of course, purposely trying to offend someone again and again can turn into harassment. Maybe that is a gray area, but I don't think so; I think it becomes harassment if, and only if, it impairs the listener's ability to interact with the community. That is the whole point of harassment: to try to drive someone away from the community, so at some point, it has to affect the listener's ability to operate in the community.
But if that is the case, there will be evidence. And such evidence can be used to prove guilt according to due process.
I believe, in fact, that freedom from offense cannot even be upheld at all, or the safety of the community will suffer. Consider the case above. The woman could claim that she was “offended” by his blog, yet who got the short shrift? The man did. To uphold freedom from offense, actual rights must be infringed, and once they are for one person, community safety is now at risk.
And regarding “hate speech”: true hate speech requires calling for, or threatening, harm or harassment to the listener. That is bad, it is a crime, it is definitely a violation of community safety, and there will be evidence of it that can be used as part of due process.
But speech that doesn't call for violence/harm/harassment is not hate speech. It is opinion, and giving it is a natural right of the speaker, until he/she starts giving it in such a way as to cause harassment. Then he is infringing on the rights of another, and once again, there will be evidence. And due process can happen.
Another reason that freedom from offense cannot be upheld under the guise of community safety is that communities live and die by freedom of speech because there is no dialogue without it.
Take the current political situation in the United States. The press are talking about how the president is infringing on the freedom of the press. Yet they say that people have a right to be free from offense. That is ironic because the freedom of the press (and freedom of speech, of which freedom of the press is a subset) is absolutely dependent on the non-existence of the freedom from offense. If there was freedom from offense, then anything “offensive” written in the press could be suppressed. The end result would be that there would be no freedom of speech and no real political dialogue. In that case, the president would be the tyrant that the press are asserting he is because he could just do whatever they want. But since freedom from offense does not exist, freedom of speech and press do, and the press can offend the president, or anyone else, as much as they want.
This project will live or die by whether it upholds freedom of speech, thus encouraging dialogue and progress, or whether it upholds the (non-existent) freedom from offense, thus stifling dialogue and progress.
By the way, now that you know what upholding freedom from offense does, you know when someone cries “OFFENSE!", either they do not understand the effects of doing that, or they are actively trying to silence the person they are accusing of offense.
So that is why my position is not nuanced on this topic. I know that community safety will suffer when due process is not followed.
By the way, the definition of a “natural right” is a right that cannot be infringed and if it is, the one infringing on the right has committed a moral wrong. So when the code of conduct allows infringement of natural rights and then it happens as part of following the code of conduct, then the argument could be made that the code of conduct is not moral. (And in the United States, under the Bill of Rights, it could be argued that it is unenforceable.) But that is a philosophical side tangent and not important.
What is important is the fact that freedom of speech and due process actually enhance community safety.
— Gavin D. Howard