Sep Dog throws out two questions on his blog today: why is speech that causes disutility morally distinct from actions that do the same, and what’s so bad about the Digital Millennium Copyright Act?
First, speech: I don’t know that I’d make “disutitlity” the primary focus in either case, but that’s a longer discussion than I feel like right now. So I’ll fall back on Judith Jarvis Thompson’s answer: if by “harmful speech” we mean saying nasty things that people find offensive, then the “victim,” as JJT puts it, “participates in the harm” that he suffers. That isn’t to say that the intention to cause hurt isn’t morally blameworthy, but I assume most people believe that the sorts of duties whose abrogation entitles people to some sort of retaliation (I’m thinking of duties that constitute rights, mainly) specify prohibited actions. (“Actions” as used in that last sentence includes speech — I’m not trying to beg the question, just to distinguish physical from mental behavior.) In the case of psychological harms from speech, it’s not clear why the offender’s action, rather than the offendee’s is the relevant one. If that sounds implausible, consider that otherwise we’re comitted to the idea that I can bind others with moral obligations just by making myself psychologically disposed to take offense more easily.
As for DMCA, first, I’ll confess that I’m agnostic on the question of whether intellectual property is legitimate at all. But let’s assume for the moment that we think it is. The trick is that DMCA’s ban on copy protection circumvention is not conditioned on an infringing purpose. That is, just the act of producing a cracking program is criminalized, even if the content I unlock with it is, in fact, in the public domain — even if I never use it at all. Criminal penalties are triggered, whether or not infringement occurs, by speech. Consider, after all, that the transformation from an algorithmic, mathematical description of a decryption process to a functioning program which embodies that process is trivial for most competent programmers. So even if we think IP’s legitimate, DMCA bans speech which doesn’t necessarily violate any IP rights. Now, Sep asks “if [computer scientists’] ‘testing’ were really so valuable, why wouldn’t companies pay them to do it?” First, the work may be valuable, if only to other computer scientists, without being valuable to a particular company. But I rather think that’s beside the point: the presumption is that those who wish to silence speech must justify themselves, not that speakers must make some showing that their expression has market value.
