Conclusion: you must limit punishment for speaking one’s mind in a general setting (not work specifically, there you are paid to do your job and not to offend customers) only to social ostracism, and even that must be limited enough so that people can keep their families (or get new ones), critical support networks, etc. That is, government bodies, employers, businesses as providers to customers, and many social organizations have to put up with people; more generally, they must be rules/law-based, with decisions based on merit. Moreover, the only kind of threat or indication that can be banned is false, urgent information with significant irrevocable consequences.
The reasoning for the point of social ostracism is as follows:
Rational decision making only can occur when the relevant facts are available to decision makers. Reviewing briefly the question of taking measurements:
- Direct measurement
- Direct demonstration
- Clear evidence of demonstration
- Consultation of accounts, either personally via witnesses, or historically via the written word/media
we recall that economically, there is no way for the vast majority of measurements personally to be witnessed by a high-level decision maker. Such high level decisions include going to war and the management of the economy that can win wars, and therefore are essential to the functioning of any society. Physical evidence can be used, but only for economically large events such as wars, and only for relatively limited periods of time. Consequently, decision makers must have easy access to reliable individuals and accurate media.
To the point of individuals, we must recall what makes an individual (vs. just reading from a book) reliable:
- That they actually can observe a phenomenon
- That they can build a test/run an experiment
- That they can report a positive or negative result, regardless of the implications
Economics dictate the availability of the first two, which (not to divert too much) means you require an economy that isn’t entirely poor and/or red taped, which means you need efficiency and a rules/law based order, which means individual actions like employment decisions cannot be based on whim or personal preference. But it is the third that most highly contrasts the matter, and hence the integrity of people will be the focus of the explanation.
A few people are capable of accurate reporting even if there are personal consequences. In history, we read that the number of people who take such stands, is very low – on the order of 1% of the population. 1% of the population is a large portion of reporters; however, if the reporters are being disabled/disqualified/removed from their positions and therefore are unable to continue, you’re not talking about 1% in the steady/active state: you are talking about 1/100th of 1%, and now you have lost the required fundamental reporting levels, both in number and in diversity (e.g. you have to monitor each industry sector).
Some ways in which people can be fundamentally disabled from reporting are:
- Violence
- Firing from a job/removal from a board or organization
- Removal of access to property or records
- Confiscation of cameras and other reporting materials
- Removal from forums and publishing
- Bans from visitor lists and public testimonies
As you can see, a variety of these require government hands-off, and a number of the remainder require business hands-off. The forums and publishing also can be run by social organizations, which, if they are pervasive/no viable alternative, must therefore have agendas and rules to limit such censorship.
Ways in which otherwise able people indirectly can be disabled or limited in their reporting capability:
- Low/no income/no assets/trusts and monopolies that prevent the conduct of business
- Reassignment to a far away region from the area(s) in which they were seeking to report
- Family and friend obligations such as medical caregiving
Ostracism from the workplace or from professions/companies is the primary issue here. Caregiving and personal obligations are extremely important, and typically not influenced by larger factors; however, they can be addressed to some extent with employment as a substitute (which is not always appropriate).
Ways in which people can be persuaded or coerced to change their reporting even if they have the physical capability:
- Threats of violence, job loss, wife threatens divorce/taking the kids, promises never to speak again etc.
- Seeing the consequences to others who did blow the whistle
- Recognition of the large amount of effort it will take to find the truth and then report on it (opportunity cost)
- The belief or realization that even if they do report the truth, things will not change enough that it justifies the losses and effort (not economically constructive)
That is, people who might report, weigh the personal benefit/cost vs. the chances that they actually can make a difference, in the historical context – which at a high level, is quite disfavorable to whistleblowers and dissidents. Speaking from that same general historical context, no one correctly would choose to be a whistleblower or dissident for personal benefit; only if they have strong understanding that survival depends on functioning society which needs their reporting, and/or they have strong will/principles, would they have sufficient reason/benefit to follow through. This is why 1% or less of the population is accurate in these situations – you have to be accurate in your view in a possibly complicated, including highly technical, situation where you may not have all the facts, you know this history and the likely consequences of speaking up, and you hence have to be confident in your assessment, to be confident in the likely benefit of speaking up, and you also need the willpower to suffer the associated personal consequences.
As for the social dimension: if your wife has a high probability of leaving you if you go down that path, you’ve thrown away happiness for an abstract ideal that likely won’t benefit you in any way, and will leave you worse off than before. Recalling the above, it is self-harming behavior accurately to report, in every way – political, economic, and social.
As for mitigations to the social harms: our problem as policy makers is that the historical precedents have been set, and we also must contend that people are free to make their own social decisions, because we reject slavery. We assert that we refuse rape, so we can’t force a woman to stay in a marriage. We assert the freedom of association generally, so we can’t force people to be friends. Therefore our ability to mitigate those damages is very limited, and because of the well-known history, every person in society knows that too. Therefore they operate in a climate of fear, and hence we cannot consider that more than 1% of the population is willing to throw away their family and friends, because that is not what they do in unfree societies. In this specific context, that’s not the same as actual 1% of the population because not everyone is married, and some people are understanding/forgiving; however, because we require coverage in government and industry, and the working population is disproportionately the population with family and friend obligations and desires, we have to consider that this subpopulation is a major focus, and so we have to consider a nominal target on the order of 1% in that subpopulation. One could propose to take the people who don’t have such constraints and pay them to be reporters in these affected organizations with less than 1%, but you can understand the efficiency loss from this approach, given that these standalone reporters aren’t necessarily embedded in these operations, are not necessarily well trained or intellectually adept to the situation at hand, and so it’s not merely a question of supplementing to 1%. The approach of hiring people outside that subpopulation may actually require 1% or more of the overall population to be added. It is appropriate to have such monitors in targeted industry (especially militarily relevant) operations with fundamental conflicts of interest; however, the taxation burden from employing that many people in these roles is a far greater coercion than what you would have from a free-speech and rule-of-law culture; that is to say, it is not economically constructive to try and work around a lack of freedom of speech by throwing outcasts at the problems.
Given that the individual social harms are difficult to mitigate, we have to preserve the remaining potential population of reporters in other areas, since in those areas we actually have constructive alternatives. In other words, we must force almost all large semi-formal social organizations – government, business, operators of amusements and banquets, craftsmen, professional networking societies – anywhere that deals with an individual’s ability to provide for their family and in general to get along – to allow participation without regard to that individual’s viewpoints and general social rank.
As for the matter of threats:
Generally, violent speech can’t be banned without preventing the rational discourse about policy alternatives, or even law enforcement itself. The obvious case is the proposal for or against war; but other violent types of speech come into play as well. “If you break the law, I’ll kill you” is a classic. Proposing law proposes employing force against individuals for acts which currently are not illegal. In other words, you threaten that if they continue the behavior (i.e. not ex post facto), you will use violence against them. The only real option is to identify some types of laws (e.g. those against murder) and punish those threats. However, the context of those threats also is not obvious. If someone threatens a gang member with death, is that under the current system of laws? A future one? In retaliation or self-defense? Your trial unacceptably becomes a linguistic dissection instead of proof beyond a reasonable doubt.
Another type of speech/indication, that is not strictly impossible to ban, but that you would not want to thwart, is unreliable reporting on an occasional basis (vs. persistent waste of resources with unconfirmed calls). You might think you smell a fire, but it’s something else. Similarly, if you think you see a suspected criminal in the neighborhood, who turns out to have relevant business.
Moreover, it does not make sense to ban threats or other speech that isn’t rising above the level of a minor annoyance (vs. making it impossible to run a meeting, for example, which becomes a case of harassment and not mere banned speech); what’s your justification for putting jail time on it and the proposed penalty, vs. shoplifting, graffiti or minor traffic violations, etc.? If you send someone a death threat every year, but you never act on it, there are no consequences other than the waste of time caused by it. As such, your punishment must correlate to the value of that wasted time, which is insignificant, and compared with other actions (mild harassment of women, etc.) that are not punished, you would not have a consistent case to make for punishing the harmless speech but not the other actions.
Continuing with the perspective that punishment must accord to the damage caused by the offense: that means someone or something must significantly be damaged by the claims. True claims, and in general the speculative and deliberative process, aren’t going to damage anyone in even a half-well-run society; moreover, the antidote to such is more truth and not less. The violent speech certainly could cause consequences, but on an average case basis, to all the deliberations that implicate law, etc., the violent speech is solving more problems than it causes. Likewise, the average case of encouraging people to report when they think something is wrong, is a net benefit.
These two lines of thinking lead to only one class of claim/speech being suitable for a ban: false, urgent (therefore not admitting of any validation or consideration that would mitigate harm), and leading people to take further steps that cost money or harm people. Situations that people construct and so are vulnerable in this way (that is, they are not inherently high consequence, but the particular way in which they can be handled causes this) are the fire in the crowded theater, and the SWAT team report. Situations that people don’t construct are emergency calls reporting incidents in dangerous locations (e.g. attempting an underwater cave rescue).
The next question: do you punish all such unsupported claims (effectively like manslaughter, in which you do not care about the good motives), or do you try to punish based upon an individual’s “intent” or “knowingly false”? Probably, to encourage reporting, you want to punish based on an individual’s “intent”, but you know that you never will get consistent/equal-protection-of-the-laws enforcement out of any intent-based adjudication standard. If you choose to accept that limitation, then you have to make that exception to equal protection of the laws explicit, so that everyone knows you are making a best effort, which would help to reassure citizens that they will not be punished for an honest report. Without that, you are going to terrorize the citizens, so that they won’t be reporting threats in those situations, which is not what you want.