Free of Speech vs Freedom of Commerce

In thinking about online civil disobedience, and the relationship between public and private sectors, I have been spending a lot of time wrestling with DDoS attacks. Can a denial of service tactics (I prefer not to use the term attack since it carries a negative connotation) be seen as a logical extension of pervious forms of civil disobedience? Or is it, as critics claim, really an assault on free speech?

It seems to me that a definition is in order here. I think that free speech is something that we often evoke in this country without fully understanding what it means. There seems to be a lot of confusion about what “speech” really is. I think it might be helpful here to outline some of these arguments in situating our definition. Consulting Websters Dictionary is a good place to stat. Webster defines speech as 1. The expression of or the ability to express thoughts and feelings by articulate sounds 2. A formal address or discourse delivered to an audience. But we know that definition extends to include actions ranging from flag burning to campaign contributions.

Recent speeches given by Minority Leader Mitch McConnell have helped solidify this conservative argument which began with Citizens United and equates donating to political affiliated organizations with free speech (not surprisingly, one that requires high levels of anonymity). It seems that speech is equitable with money and commerce. When we spend money it is a political act. We vote with our dollars you will hear proponents of this system say. If a corporation does something that you don’t like, you don’t have to shop there, and is enough people join you, like in a boycott, then you can succeed in either shutting the business down or changing the practices. But, that change is driven by consumption, not by political activism. Our power is derived from our consumption patterns, not from the ballot box. I hate the thought of us buying the kind of society we want to see.

Slavoj Zizek argues that this is a staple of modern capitalism, or what he calls cultural capitalism. He applies this argument to charity but I am interested in how this notion affects issues of activism and political discourse. For Zizek, he sees that there is a tendency to combine the consumer with the samaritan. The cultural pressure is not to volunteer in our communities or give to charity but to consume responsibility. He claims, that the act of consumption includes within it the redemption for living a consumerist life. For example, when we buy paper towels from a company, they may donate some portion of the proceeds to an organization that protects the rainforest. The fact that these claims are almost always vague and the solutions they seek are simplistic is another issue, but what is really disturbing about this is how this model merges the selfless act with the selfish act. By buying something, I am helping solve the problems of the world.

But if we accept this argument, then we accept that any disruption of commerce, whether it be through DDoS tactics or a “die-in” at a local chain store, is an infringement on free speech. Does this mean that when we act directly against any kind of private interest, we are infringing on the right of those interests to participate in commercial speech? Are we impeding on the freedom of others when we disrupt corrupt business practices? Even when those practices are known to cause the community harm?

This assertion becomes problematic when you have multinational corporations that control huge swaths of the economy. For one it makes boycotts more difficult as major corporations have plenty of alternate revenue streams and for two as we privatize huge areas of public domain it becomes increasingly difficult to challenge the business practices of others because of the perceived infringement on commercial speech, or the right to business.

But is the right to commercial speech a right? The Supreme Court certainly thinks so. As do the critics of DDoS tactics.

The problem with DDoS tatics according to critics like American human rights activist Catherine Fitzpatrick is that the by shutting down a website like Visa or Amazon, activists are impeding others from participating in commerce. She points to the civil right era sit-ins as a model for all forms of legitimate civil disobedience. She claims that 1960’s sit-ins represent a true form of protest because they didn’t infringe on the owners right to speak or to continue to run the business as they wanted. By not interrupting the flow business these protesters were engaged in legitimate action. But once activists interfere with commerce, she claims, their action becomes illegitimate.

This argument neglects the historical origin of these tactics. Mahatma Gandhi pioneered the practice of non-violent civil disobedience to which much of the civil rights era owes credit. His famous March to Dandi in response to the British Salt tax had a direct impact of “official” commerce. We can even pull examples from the civil rights era looking to the Montgomery bus boycott, and its success in repealing bus segregation. Civil disobedience has its roots in the disruption of commerce and the challenge of capitalist hegemony. The disruption of the pocket book is one of the oldest forms for direct civil action, from strikes, to boycotts, to sit ins.

But, thanks to the consumer economy, freedom of speech has been conflated with the freedom of commerce. In fact this was the very thesis behind Milton Freidman’s book “Capitalism and Freedom”. To attack an individuals right to freely associate with his money is an infringement. In this view, private enterprise is off limits from regulation, accountability and most certainly bowing to the whims of angry protesters. If it were up to Milton Freedmen, we could use our dollars to buy anything and everything from elections to underage prostitutes. After all that is what a “free” market is all about.

However the freedom of speech is so because it is guaranteed to all. The freedom on monetary association is not. Its is quite clear that there are staggering levels of economic inequality in this country and if we are to understand the freedom of commerce as a given right, then we are living in a segregated society, with some who have the freedom to spend and those who do not. It should be no surprise that those with the freedom of disposable income have higher political power, for they are able to project their “speech” further than the average citizen. The exorbitant amounts of money flowing into secret super PACs is a prime example.

Interestingly at a time when the right is clamoring for redefinition of freedom of speech to include political donations, they are simultaneously attempting to shield their donors from identification. This is very evident the recent remarks made by McConnell. Those who contribute millions of dollars to political action committees should not be subject to the intense scrutiny of the electorate; this is an infringement on their right to freely associate, he argues. Now we are casting scrutiny as an infringement on the rights of others. You can see how effectively by invoking the boogeyman of speech suppression any kind of direct political action as illegitimate.

Interestingly this extra protection of secrecy for political donors is coming at the same time we are seeing and hearing that we need to redefine our expectations of privacy. Our phones, our Internet searches and our emails are all subject to scrutiny from data companies to governments, but we are not privileged to engage in the same scrutiny towards those who seek to scrutinize us. A double standard indeed.  

I wish to reject the notion of monetization of free speech. While yes, I agree that spending money can lead others to infer your values, and feelings, it feels to me a form of privatization of free speech.  Are we to believe that the only kind of political action we can take is raising money for cancer, or donating to Moveon.Org?  To think in this way is to rephrase Gandhi from “be the change” to “buy the change”. I don’t mean to claim that there are not instances of any kind of “non-commercial” activism, there are plenty of examples, I only seek to point out that a predominate cultural attitude towards acceptable political discourse in cultural capitalist society. I believe that this attitude can help us understand the critics of DDoS tactics.