Speech is free but you pay attention. There are no legal regulations on what I can say alone in my living room. And I think that is correct. I do believe there are moral restrictions, and that there are things I can say in the same quiet room that would damage my soul, but my soul’s health is not properly the concern of my government. My government, I believe, should concern itself only with minimum acceptable standards and not with the ideal. So unattended speech is and should be free and unregulated.
Everything changes though, with the act of attending. Attention, idiomatically and, I believe actually, is paid. I think of attention as a subset of personal power. As money is. It has value and as such, can be stolen. If I am responsible for my power, then I am responsible for its exploitation and for the safeguarding of it from theft. I am responsible for not allowing my attention to be directed away from the uses I have chosen for it by a person’s outrageous appearance or the People magazine headlines. If I’m teaching a class, and if the antics of a particular child are stealing the other students’ attention which rightly belongs to me, it is my responsibility to stop the child, assuming his fellow students are too young to be responsible themselves for the safeguarding of their attention. I am responsible for my attention, for consciously directing it and safeguarding it from theft or exploitation.
That said, I’ve done enough theater to know that focus is easy to steal and hard to protect. People who steal attention are, in my experience, people who feel helpless to increase their own power through other means. (I wonder what would happen if you simply offered a person the gift of your attention if they could demonstrate a legitimate need for it, if they could effectively articulate why they should be given what they have not earned.) The morality question is easy. It’s immoral to steal or exploit another person’s attention. You can request it. You can earn it. Or you can do without. Those are, to my thinking, are the only ethical options. But we all know that people will do immoral things and at point we band together as people, as a society to stop them. And that tension between what is damaging enough to the social body to warrant correction and the necessary subordination of the mechanism of correction to that which it serves and protects is the same biological tension between individuation and integration, between the highly specialized and deeply collaborative.
There are forms of speech, actions and words, which demand my attention beyond my power to safeguard it. There is speech that overpowers and takes attention by force, speech that jeopardizes safety or pollutes common property. I believe that correcting the abuse of power is one of the things we rightfully ask of social structure. How should we react to people who exercise their free speech to steal our attention? Do I have the right to tell you what you don’t want to hear? Do you have the right not to hear what I want to say? Do you have the right to show me something I don’t want to see? Do I have the right to be protected from seeing what you want me to see? Do I have the right to protect my children from seeing what you want them to see?
So here’s what I believe: I have the right to unattended free speech. I have the right to attend to whatever I desire and disregard that to which I do not wish to attend. I have the right to request attention, but not to coerce or mandate it. The line between persuasion and coercion can be difficult to see, especially in instances where power is distributed unevenly between those with the message and the audience they attempt to command. Morally, I have the obligation to earn whatever attention I desire through the merit of what I have to say, by reciprocal interest in what you have to say and/or by honest persuasion. Morally, I have the responsibility to consciously direct my attention and safeguard it from theft or exploitation.
Here’s where I get iffy: What do I want from my society, what regulatory guidelines on speech should be in place to mediate between the right to speech and the right not to be exploited? Where do you put the pegs in that continuum between free expression and personal privacy is difficult to determine without context. Does my right to free speech extend to the destruction of symbols of great power and importance? Can I soak a crucifix in urine, raise the Dixie flag, co-opt the tomahawk, burn a US flag in the park or a cross on my lawn? Does my right to free speech extend to hate speech, the calling of names, to cursing at a person or hurling racial epithets? Are “fighting words” protected? Does my right to free speech extend to threats against another person? Can I scream “Fire!” in a theater? Can I grab my crotch or extend my middle finger or shake my fist? Can I expose myself, mime violent or sexual acts, announce my intent to kill you? Can I fake a heart attack on a crowded subway platform at rush hour?
Does my right to free speech extend to the public display of pornography? Can I stand outside an abortion clinic with graphic photos? Does my right to free speech extend to unsolicited speech? Can I make telemarketing calls to your home or send spam to your computer? Can I stand in the public park and proselytize? For a political candidate, for Jesus, for Allah, for Osama bin Laden, for Hitler?
These are regulatory rather than moral questions, and I’m sort of out of my element with them. So, to go back to the original question, I’d say an individual using shock tactics to steal your attention is probably protected by free speech unless his speech poses a credible threat to your physical well-being. Beyond that, it’s your responsibility not to allow your attention to be co-opted. I think legally, we have to protect speech. The larger legal structure may censor only speech that constitutes a credible threat to your physical safety. Social groups, clubs, church, societies, economic units and any other self-created structures can censure speech based on offensive, taste, faith or form and we have more direct control over our environment by exercising social control if we are courageous enough to be self-policing and turn only to the state-police in areas of danger. But determining what poses a credible threat to physical safety would likely require almost case-by-case consideration and judges to judge them and since the question was a general one rather than a case-specific one, I’ll leave my thoughts in broad strokes with gratitude for the opportunity to have drawn anything at all.