September 18, 2020

SLAPP Suits And The Enemies Of Writing And Ideas

Writer George Packer recently won the Christopher Hitchens Prize, which has been given out yearly since Hitchen’s death. The prize is awarded “to an author or journalist whose work reflects a commitment to free expression and inquiry,‭ ‬a range and depth of intellect,‭ ‬and a willingness to pursue the truth without regard to personal or professional consequence.” That’s quite a noble effort. This year’s award went to the excellent writer George Packer, who gave a speech that is being passed around among many people I know, on the topic of The Enemies of Writing. It is a worthwhile and thoughtful piece, and I think it does get at a growing concern today about how certain areas of exploration are considered too taboo to even suggest that the orthodoxy is not correct. His concerns, mainly, are that writing on a taboo subject or not taking an orthodox position on certain topics will get you mauled in the court of public opinion.

A friend of mine once heard from a New York publisher that his manuscript was unacceptable because it went against a “consensus” on the subject of race. The idea that publishers exist exactly to shatter a consensus, to provoke new thoughts, to make readers uncomfortable and even unhappy—this idea seemed to have gone dormant at the many houses where my friend’s manuscript was running into trouble. Fortunately, one editor remembered why he had gotten into publishing and summoned the courage to sign the book, which found its way to many readers. But the prevailing winds are blowing cold in the opposite direction. Incidents like this, minor but chilling, happen regularly in institutions whose core purpose is to say things well and truly. If an editorial assistant points out that a line in a draft article will probably detonate an explosion on social media, what is her supervisor going to do—risk the blowup, or kill the sentence? Probably the latter. The notion of keeping the sentence because of the risk, to defy the risk, to push the boundaries of free expression just a few millimeters further out—that notion now seems quaint. So the mob has the final edit.

To be honest, while we’ve all heard such stories, I often wonder if they are overblown — on two separate dimensions. The first, is that I’m not fully convinced that such things are actually happening more often than usual. It’s just that once you are looking for them, you will start to see them more often. It is the nature of the freedom of expression within the court of public opinion that sometimes lots of people might disagree with your speech. If the fear is one that gatekeepers (such as those described above) will prevent the publication of such speech, well, that’s fairly easily solved by the modern internet — the same thing that enables the so-called “mob” that Packer worries about. You can publish yourself and face on the angry mob through your words. It is free speech all over.

The second concern, frankly, is that Packer gives short shrift to the idea that the reasons why some people might strenuously push back against heterodox views is that those views might just be bullshit. They might be poorly thought out, poorly argued, poorly sourced, or poorly supported — or some combination of all of those things. It does seem slightly odd that in a speech/essay on free speech to worry about others using their free speech to criticize the speech of someone you support.

But in there lies some of the fundamental tensions that many have with free speech. It’s great when it’s pushing out ideas that you support — or even when it’s challenging commonly held beliefs. But, many have a tough time supporting it when it’s used to gang up on someone.

Still, I actually got something very different out of Packer’s piece. For years now I’ve been trying to come up with the words to express the emotional impact and chilling effects of being sued in a bogus defamation SLAPP suit. It’s one thing to say that it’s chilling, but that hardly gets at the emotional baggage that is involved. And Packer’s speech, while not even touching on the issue of SLAPP suits, actually does show some of the inner turmoil that any sort of chilling effect might cause:

At a moment when democracy is under siege around the world, these scenes from our literary life sound pretty trivial. But if writers are afraid of the sound of their own voice, then honest, clear, original work is not going to flourish, and without it, the politicians and tech moguls and TV demagogues have less to worry about. It doesn’t matter if you hold impeccable views, or which side of the political divide you’re on: Fear breeds self-censorship, and self-censorship is more insidious than the state-imposed kind, because it’s a surer way of killing the impulse to think, which requires an unfettered mind. A writer can still write while hiding from the thought police. But a writer who carries the thought police around in his head, who always feels compelled to ask: Can I say this? Do I have a right? Is my terminology correct? Will my allies get angry? Will it help my enemies? Could it get me ratioed on Twitter?—that writer’s words will soon become lifeless. A writer who’s afraid to tell people what they don’t want to hear has chosen the wrong trade.

I think all of that is accurate, but more so in the context of a SLAPP suit — in which state censorship (in the form of the judicial system) creates self-censorship that, to me, seems much worse than even “will my allies get angry?” or “will I get ratioed?” Frankly, if I’m worried about allies or ratios then my internal response is “gee, I better make this argument much, much clearer” rather than self-censorship.

But the idea of being dragged into a years-long, emotionally draining, physically exhausting, and money wasting lawsuit to defend speech is much, much tougher than anything described above. And, as we’ve seen more and more SLAPP suits being filed, I’d argue that those (and even just the threat of them) can be much more damaging, and a much greater “enemy” to writing, than any concern about the “mob” getting angry on Twitter.
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