Plato hated rhetoric. He worried that it made the “worse appear the better reason,” that it was a form of “flattery” designed to pull the wool over the eyes of the ignorant multitudes.
He conceded that rhetoric could be done well if the speaker was careful to speak the truth about what he said, if he took the time to explain his terms, if he paid attention to structure, and if he designed his speech to be appropriate for his particular audience. Mostly, though, he worried about the inflammatory nature of rhetoric and the susceptibility of the audience to turn into a mob under the right circumstances. Euripides described the problem like this: “A man of loose tongue, intemperate, trusting to tumult, leading the populace to mischief with empty words.”
In our book “Tongue-Tied America,” we began to grapple with the objections that Plato raised, suggesting a formulation of “ethical” speech to help a speaker steer clear of the sophistry that Plato feared. We wrote that ethical speech honors facts, allows the other side to be heard and avoids using emotion (pathos) manipulatively to cloud reason in the minds of the audience (e.g. no race-baiting, inciting violence and the like). This isn’t a perfect formulation; for example, it’s not always clear what’s a fact and what’s an opinion, and what might seem like a perfectly legitimate use of emotion to one audience might strike another as manipulative. But we believe that a speaker who makes an honest attempt to deal fairly with these three areas is more honorable than the one who uses his rhetorical skill to manipulate.
The YouTube video disparaging the prophet Muhammad falls squarely within our definition of unethical rhetoric because it was designed to, and has succeeded in, fomenting violence. The violent protests that have sprung up in the Middle East in response to it show how unethical rhetoric can be even more dangerous today than back in Plato’s era. With modern modes of communication, vitriol can go viral. Many of the protestors reportedly never even saw the video at all, but they took to the streets anyway because of what they’ve been told the video contains. This is just the sort of scene that Plato and Euripides cautioned against.
But for Americans, the parameters of ethical speech don’t match what is permissible under the First Amendment. Under U.S. law, there are many things that a speaker could say that would be perfectly legal — protected, in fact — but that don’t play fair according to our ethical rules. Many Americans have reacted to the video as we do, with distaste, but with a commitment to protect the freedom of the moviemaker to make his film. Many Americans also have criticized the film, which is also a terrific strength of the First Amendment — if you hear an idea that you reject, you can reject it and explain why you do. Many Americans have even laughed at how terrible the production values of the film are, and that laughter diminishes the film’s power even more.
In many parts of the world, insulting a religion is illegal. Muslims abroad have asked why our government does not ban the video. It can be difficult to explain the First Amendment to other countries where the idea of allowing citizens to express their views, no matter how inflammatory, is not the norm. Secretary of State Hillary Clinton has tried, stating, “We do not stop individual citizens from expressing their views, no matter how distasteful they may be.” President Obama struck a similar theme in his September 25 address to the United Nations:
“Americans have fought and died around the globe to protect the right of all people to express their views — even views that we profoundly disagree with. We do so not because we support hateful speech, but because our founders understood that without such protections, the capacity of each individual to express their own views and practice their own faith may be threatened. We do so because in a diverse society, efforts to restrict speech can quickly become a tool to silence critics and oppress minorities. We do so because, given the power of faith in our lives, and the passion that religious differences can inflame, the strongest weapon against hateful speech is not repression, it is more speech — the voices of tolerance that rally against bigotry and blasphemy, and lift up the values of understanding and mutual respect.”
The First Amendment is precious to Americans. It’s what gives us the perspective that can let us laugh at a ridiculous, shoddy video, rather than take to the streets in response. But the reality is that words can hurt. They can lead to action, including the action of attacking an embassy and killing innocent people. Modern technology makes unethical speech even more dangerous, because it can spread so quickly. This is an area that the law doesn’t really touch—we can (and should) react to the illegal violence that breaks out in response to unethical speech, but we cannot use our laws to stop the speech itself. So what should be done?
Law started with a series of ethical and moral rules, but as the First Amendment shows, our laws today also protect some unethical behavior. As law professors, we are in the business of training lawyers, and we want our students to think about their ethical obligations, not just their legal obligations. We raise these issues in our classes in the hope that it will do some good. We raise them here as well so that you, too, can consider them.