Considering the free speech dimensions of the accusations against comedian Aziz Ansari can help frame the issues thoughtfully.   In some ways, anonymous Grace’s account of an evening with Aziz Ansari, as told to writer Katie Way, is a triumph for the First Amendment and its underlying values.  In other ways, the account and responses to the account are disastrous for free speech values.   By examining the First Amendment and free speech values dimensions, we can better wrap our heads around the babe story, the backlash to the babe story, the backlash to the backlash to the babe story, and the backlash to the backlash to the backlash to the babe story.

For starters, the babe.com story is very likely protected by the First Amendment.  Although the babe piece has been referred to as “revenge porn,” it still likely constitutes protected speech (and, indeed, revenge porn itself – if it legally belongs to the poster – may also be protected speech, but that is less clear).

The factual details supplied by Grace to babe cannot sustain a defamation lawsuit.  The only possible defamatory content, if the factual details are true, is Grace’s realization that she was the victim of, in her words, “sexual assault,” when she very likely was not a victim of that crime.  However, a reasonable reader would understand that Grace’s use of the legal term sexual assault is not a reliable legal judgment that adds any content to the facts she presented.  Her categorization of the acts as sexual assault, given that she is not a lawyer, represents more of a non-actionable opinion, which does not imply any facts not already stated in the piece.  Ansari, who does not appear to have any inclination to sue, would have to allege that by using that term – which has an established legal meaning – Grace and babe acted with reckless disregard for the truth, but only in the unlikely event that the term is classified as something more than a non-actionable opinion.

Further, any invasion of privacy claim would likely be unavailing.  Private individuals in America making true claims do not have much obligation to respect the privacy or reputation of other private individuals’ – unlike in, for example, Europe, where free speech protections are weaker.

As for free speech values – or the rationales underlying the First Amendment – there is a lot to be said for the babe piece.  Although Grace remained anonymous, which isn’t the bravest way to expose an intimate encounter with a celebrity, anonymous speech is critical to a system that supports free speech values.  Anonymous speech is protected by the First Amendment precisely because it allows people to air facts and opinions they would otherwise feel too afraid to share.  Grace has opened up a dialog on how we think about consent, how we communicate our needs, and what obligations exist on both parties to a sexual encounter.  This is an important and timely discussion, and Grace’s story gives us all a shared context for adding to the marketplace of ideas on this topic.  There appears to widespread consensus that Ansari’s behavior was, at least socially, pretty unacceptable, and that is significant and new.  Grace’s account also contradicts Ansari’s comedic persona, deepening our understanding of a public figure.

On the other hand, there are reasons for those who care about free speech values to be concerned, both about the publishing of the piece and the reactions to the piece.  To me, the most concerning aspect is the common reaction (look at the comments under the piece) that Grace’s experience cannot be questioned or judged.  This has to be wrong. For the story – a story that Grace deliberately placed into the public domain – to have any value, it needs to be fairly evaluated.  Readers need to critically assess their normative positions on Ansari’s behavior and on Grace’s behavior. While some claim that no one has a right to determine the gravity of what Grace experienced, she accused Ansari of a crime, where a set of jurors would evaluate the gravity of what Grace experienced, with the burden of proof on the prosecution to prove sexual assault.  If Ansari is going to instead be fairly tried in the court of public opinion, Grace’s acts and omissions are highly relevant.  Part of the way we use conversations to obtain greater insight is by evaluating facts, not privileging some actors over others because of their identities or their feelings.

Further, Grace’s view of sexual assault sets the bar on coercion quite low.  Coercion, or a lack of choice, cannot be found lightly without imperiling both areas requiring consent and our free speech rights.  Agency, or the idea that we should trust that people act in their own best interests and that we can act based on their outward manifestations, is necessary for all of human interchange.  Deciding that, because of some sort of force exerted by Ansari, Grace had no ability to say no, even though she could have left at any time and actively participated in the encounter, would undermine our notions of agency.

These notions of agency are critical to robust free speech protections, because the First Amendment depends on the view that we are all rational actors who can make choices in our own best interest.  The government cannot police what we read, watch, or say precisely because we know what is best for ourselves.  The government cannot decide that certain speech is too harmful, or that people will make bad choices when encountering protected speech, precisely because of strong notions of agency and an anti-paternalistic attitude about our ability to make our own choices.  We cannot appear to have choice and make choices and then take them back, asserting force, lightly.  Grace may not have wanted her encounter with Ansari to continue, but she also did not strongly enough choose to end it – until she did, at which point the encounter ended and she went home.  Strong notions of agency, important in many areas of the law, and especially the First Amendment, mean that we don’t impose a view that Grace was forced, or that she cannot act for herself or think for herself or manifest objections, and that the law must do so for her.

Finally, important views have been aired about the journalistic ethics of the babe piece.  Given that the government cannot and should not intervene in a free media, journalists must act as gatekeepers for speech.  The writer, Katie Way, seems to lack a foundational respect for the history and experience of the journalists who came before her.  History and experience are factors that generally produce better decisions and clearer systemic thinking, whereas Way and her website seem to measure relevance by likes and retweets.  I hope we can find a way out of the state we are in, using our free speech values.