Congress Shall Make No Law.

Freedom of Speech, Chomsky

So I was going to ignore “politics” for awhile. Unfortunately, Freedom of Speech has become a hot social issue… I know, right? This is America, and we’ve got this little sentence in our founding legal contract.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So, you may have been hearing about the recent campus riots where crowds of “liberals” (and I put that in quotes because the students rioting might be progressives but they aren’t liberals by any meaningful definition of the term anymore) managed to shut down speeches by speakers they felt should not have been allowed to spread their dirty filth on hallowed campus grounds. Hate speech is violence, so apparently they were acting in self-defense. And yes, that is how some of the rioters have been justifying their act of denying those they despise the right to speak in a public forum and others the right to peaceably assemble to listen to them.

Now, to be clear, I have little patience with much of what some of those speakers had to say. But I would feel the same about the riots if the speakers had been Flat Earthers, or anti-religious zealots calling for a constitutional amendment banning Hate Speech, or anti-white racists who claimed that whites are a subhuman species responsible for every evil in the modern world. Let them open their mouths in a public forum and argue their point with anyone who wants to come out and listen to and debate them.

But this morning I read a New York Times editorial, by a university provost, that forced me to sit down and actually refute it. I strongly recommend before reading on that you read his think-piece.

Read the article? Good, now here we go.

Speech Must Advance a Common Public Good.

As erudite as Dr. Baer is, he starts to go wrong fairly early in the article, a sure sign that his basic premise is flawed. You begin to see it here:

During the 1980s and ’90s, a shift occurred in American culture; personal experience and testimony, especially of suffering and oppression, began to challenge the primacy of argument. Freedom of expression became a flash point in this shift. Then as now, both liberals and conservatives were wary of the privileging of personal experience, with its powerful emotional impact, over reason and argument, which some fear will bring an end to civilization, or at least to freedom of speech.

But the question of whether or not to “privilege” personal experience over reason and argument isn’t a question of free speech. You can decide to pay more attention to personal experience without shutting down those who want to privilege reason and argument (or mix both) in coming to their conclusions.

He conflates Freedom of Speech with something that doesn’t exist: Freedom to Be Taken Seriously:

“Instead of defining freedom of expression as guaranteeing the robust debate from which the truth emerges, Lyotard focused on the asymmetry of different positions when personal experience is challenged by abstract arguments. His extreme example was Holocaust denial, where invidious but often well-publicized cranks confronted survivors with the absurd challenge to produce incontrovertible eyewitness evidence of their experience of the killing machines set up by the Nazis to exterminate the Jews of Europe. Not only was such evidence unavailable, but it also challenged the Jewish survivors to produce evidence of their own legitimacy in a discourse that had systematically denied their humanity.

Nobody needs to take the Holocaust-denier seriously, and nobody needs to debate him (although it is certainly a good idea if someone at least debunks his “facts”). But Dr. Baer is leading to something more dangerous:

“Lyotard shifted attention away from the content of free speech to the way certain topics restrict speech as a public good. Some things are unmentionable and undebatable, but not because they offend the sensibilities of the sheltered young. Some topics, such as claims that some human beings are by definition inferior to others, or illegal or unworthy of legal standing, are not open to debate because such people cannot debate them on the same terms.”

Not open to debate. To see the problem here, let’s substitute a few facts to create a hypothetical: instead of Lyotard, we have Unbeliever X.

Unbeliever X tours America arguing that not only is there no God, but religion is responsible for most of the evils of the modern world. Furthermore, religious superstition and bigotry is the reason why we’re not living in a utopia right now, and we need to amend the constitution to outlaw all institutions of organized religion as Enemies of Reason and of The People. Mr. X categorizes everyone who witnesses to profound personal encounters with the divine spirit or offers argued reasons why he might be wrong as delusional or deceitful, systematically denying that their position can be both rational and moral. Believers are either ignorant or mistaken, in which case they must be re-educated, or they are evil, in which case they must be cast from society. At minimum, in order to vote, citizens must take an oath denying all religious convictions and so prove that they can vote rationally. Progress demands it.

There are probably at least some militant atheists who believe all that, but that’s not the point; the point is Unbeliever X’s view is fundamentally opposed by a great majority of Americans, and is deeply, deeply de-legitimatizing to all religiously inclined Americans. So should his free speech be restricted? Should religiously inclined students riot to shut down his speech when the local student-atheist club invites him to speak on campus? Should insulted and threatened groups declare his repugnant views not open to debate?

It is indisputable that some words can cause harm; words are the tools of democracy. So, who decides what is or is not open to debate? A national majority? A violent minority? Lawmakers? College presidents or student senates? Dr. Baer seems to completely miss the worm in the apple. Instead, he believes that speech that does not “lead to the truth” is not worth protecting. Such not-good speech must be restricted so that freedom of speech for “those who previously had no standing” may somehow increase. To continue his explanation:

The great value and importance of freedom of expression, for higher education and for democracy, is hard to underestimate. But it has been regrettably easy for commentators to create a simple dichotomy between a younger generation’s oversensitivity and free speech as an absolute good that leads to the truth. We would do better to focus on a more sophisticated understanding, such as the one provided by Lyotard, of the necessary conditions for speech to be a common, public good. This requires the realization that in politics, the parameters of public speech must be continually redrawn to accommodate those who previously had no standing.

So he has expressed his approval of terms like “Not open to debate,” and “the necessary conditions for speech to be for a common, public good.” And what does he suggest be done with speech that is not open to debate (by whose judgement?) and not conducive to the public good (again, by whose judgement)?

Simple; let it be restricted to that cesspool of all things bad, the internet. After all, if someone wants to read something not open to debate, or to debate something not judged conducive to the public good, he or she can go there. Since the internet is available, how is shutting down a public speech by the Not Good an infringement of their Freedom of Speech?

Lest you feel that I am exaggerating, here’s his conclusion:

The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.

In other words, Hate Speech is not Free Speech. I’ll leave that conclusion there, but now that I’ve laid out what Dr. Baer thinks, what do I think? Do I have a different, constructive, definition of Free Speech?

Freedom of Speech is Simply Freedom

The founders and ratifiers of our government system were deeply hostile to government power. To be more specific, they were hostile to creating a system of government that might lead to rule by a “distant and arbitrary” power. After all, they had only recently finished revolting against the distant and arbitrary power of London; they had no intention of filling the vacuum with a geographically less distant but no less powerful government on our side of the Atlantic.

They were also deeply studious thinkers, well-read in history and in political theory, and cognizant of all of the potential usurpations of government power by historic example. How paranoid were they? Paranoid enough that, to win ratification, the Constitution’s backers had to swear on their immortal souls that the the first order of the new government would be to write out and vote into law a Bill of Rights explicitly laying out what the new national government could not do.

What was their attitude towards Freedom of Speech? Optimists like Thomas Jefferson argued that, in a free marketplace of ideas, where truth may freely do trial by combat with error, truth would win out. In other words, he considered Free Speech an inherent good. Lyotard and Baer obviously think that Jefferson was, at best, a Pollyanna. (He was certainly arguing from a rather privileged point of view).

But the majority of the new Americans didn’t share Jefferson’s sunny opinion of the positive social good of Free Speech; they defended freedom of speech (outside of a couple of very, very narrow parameters like incitement and libel), because, again, they were deeply suspicious bastards. They understood that any power you give a government for good reasons can be used for bad reasons. Governments naturally seek to expand their powers, and to make the broadest use of the powers they are given.

In other words, no party or group will stay on top for ever, and rational people fear what their political enemies might do with the powers they hand over to government, once those enemies wield the levers of power for their own benefit. If that sounds too abstract, go back to the Holocaust/Atheist examples. Who decides what is not open to debate? The correct answer is nobody; if a government can make that decision, then those in power will make that decision in their own favor. Instead, as a free person, you decide what is worth your time to listen to, or what is vital for you to debate. If you don’t want to listen, don’t listen. If you don’t want to debate, don’t debate. But don’t tell anyone else that they have no right to express their opinion in any venue that will allow them to, or seek to shut down or block access to a public platform they have been given. They are entitled to their soapbox and to their willing audience. If they are not, then their speech isn’t free. And if theirs isn’t free, then yours isn’t either; it’s only tolerated for now.

And yes, this means allowing some people whose opinions you consider to be truly vile to speak on your college campus. If you exercise the Mob Veto to shut down speech you find abhorrent, you set the stage for the mobs who find your speech abhorrent to return the favor. If your rewrite the laws to favor Good Speech over Bad Speech, using what you think are perfectly rational criteria, you give government power to someday favor what you consider deeply bad speech and suppress what you consider good speech.

Remember the lesson from A Man For All Seasons.

Alice More: Arrest him!
More: Why, what has he done?
Margaret More: He’s bad!
More: There is no law against that.
Will Roper: There is! God’s law!
More: Then God can arrest him.
Alice: While you talk, he’s gone!
More: And go he should, if he was the Devil himself, until he broke the law!
Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast– man’s laws, not God’s– and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law for my own safety’s sake.

If the Devil himself is invited to speak on campus, by all means protest as loudly and as eloquently as possible. But let him speak unhindered, and let those who wish to listen and debate, listen. Not for his sake, but for yours.

To be absolutely clear, we have not enshrined Freedom of Speech in this country because we hope that the resulting speech will be valuable and serve some social good; when it does, that’s just a bonus. We have enshrined Freedom of Speech because we know that the first liberty to fall before creeping tyranny is speech.  Free Speech isn’t meant to make the world a better place, although when Truth does win out in the marketplace of ideas, it’s a wonderful thing. Free Speech, like Freedom of the Press and Freedom of Assembly, is a safeguard against government, written into our founding document by people deeply convinced of the corruptibility of all human institutions and of the tendency of all governments to increase their power.

So, for our safety’s sake, we will put up with the idiots, the ignorant, and the hateful, because tolerating their speech protects the freedom of our speech. That is the greatest common public good of all.


18 thoughts on “Congress Shall Make No Law.

  1. Sigh.

    People who support “Banning Hate Speech” never seem to think that their speech might be banned as “Hate Speech”.

    Oh, I like your example of an anti-theist (a term one of my atheist friends calls such anti-religion types) being the “Hate Speaker”.

    I severely dislike those types, but don’t want their speech to be considered illegal.

  2. So an atheist is someone who believes there is no God, and an anti-theist is someone who wants to ban those who DO believe in God. Nice distinction.

  3. A lot of people do misunderstand “free speech” and sadly while this essay is very well written, is another essay that missed the main point of “free speech”

      1. Both, I do not mean to say that people are not making good points on this essays, but is more of a point of trying to follow the letter of the law, while not following the spirit of the law, and sadly the letter of the law is written in such a poor shape that well every person has a different interpretation of it. Very difficult subject to explain, and well if you would like to know my point ask me.

        Anyways thank you for your time.

      2. Personally, I think the “Letter of the Law” is quite clear and reflects the “Spirit of the Law” quite clearly.

      1. Ok this is going to be a bit long so I do please ask that you read it all.

        The right of “Free Speech” was put on the american constitution in 1780, give or take some years, you need to remember that at this point in history we do not have radio (radio started in 1895) and we do not have Television either, also newspaper was not as common nor as cheap as it became in future years, So why the founding fathers ended up putting the right of free speech on the constitution?

        Very simple when the states was a british colony and under the laws of britain at the time, if anyone criticized a law or any person who was part of the government you could go to jail or even lose your life, there were several laws 1 of them “lese majeste” and other that were in place to ensure that no one disrespected the king or queen and along with this there were several other laws that also covered the nobility and obviously the laws, so any criticism to anyone in power and you went to jail.

        Freedom of speech was created at this point in time so that the citizens could criticize the laws and the people who ruled over them in safety, in other words if you wanted to criticize the president you cannot be arrested because is your right for free speech, if you want to criticize any law, again is your right under freedom of speech.

        The law when it was first conceived by the funding fathers was meant as a way to ensure that people could talk back to their government and not get punished as an unruly teenager, but nowadays the “free speech” law is being used as a way for organizations to manipulate politicians, the law was not meant for organizations, it was meant for citizens, some people do lie when they quote facts that are wrong and whenever someone tell them that they are wrong they say its my right of free speech, no the law was not meant for you to spread lies, it was meant so you could do a proper criticism about the country, and some lies are very damaging like the one about vaccines and autism and the one about flat earth, also some people use the right of free speech to verbally assault other people and again this was not meant for you to just go and verbally abuse someone.

        In other words a law that was created to protect citizens and try to ensure that the government would hear their citizens without retaliating is now used for hundreds of purposes that this law was never meant to cover, there should be laws or regulations to avoid organizations abusing free speech, there should be laws that ensure that people should not do lies specially ones that harm society and then cover under “free speech”.

        In conclusion we continue to put more and more Subjects under the umbrella of “free speech” and a lot of this subjects should have never been there, they should have their own laws and their own regulations, but people continue to just put everything under free speech.

        And this is why I say that we are not following the spirit of the law, the spirit of the law of free speech is for citizens to be able to criticize their government and not be punished for it, but nowadays a lot of people and organizations follow the letter of the law, about free speech I can say whatever I want whatever you like it or not and you cannot shut me up, I can abuse you i can manipulate the truth i can even tell lies and you can not bring me to court because if you do you violate my right of “free speech”

        Do I disagree with your essay, no, I do like a lot of essays that are published about free speech and I think some of them are quite ingenious, but again I think these essays miss the point and its that right now that famous right of “free speech” that was intended to protect citizens and allow them to criticize their government is being abused by organizations and individuals to commit all kinds of other crimes.

        I could say a lot more but it would be examples of specific violations I have seen personally and some other stuff that in reality would just make this entire letter a whole lot longer without really adding anything to the content of it, this is my view after studying why the founding fathers choose free speech to be one of the rights, other people can have other conclusions, I just hope you sit down and think about this for some time.

      2. According to everything we know about how the Founders thought about Freedom of Speech, Libel and Slander (telling lies about others) was never “protected”. Mind you, the Supreme Court has rule (IMO incorrectly) that if somebody knowingly publishes lies about a “public” person, that the public person must show that that the person acted “maliciously”.

        Speech “causing harm to others”? While “incitement to riot” is has generally not been protected, the Supreme Court has been rightly correct is saying that the Government must prove that “the words must be shown to cause violence to happen” before the Government can proactively ban certain speech. While I’m not a Lawyer, “incitement to riot” is generally an “after the fact charge”. IE When a riot occurs, a person can be charged for actively calling for violence against others.

        Sorry but “speaking falsehoods” save when it is about a person is covered by Free Speech.

        However, the person “speaking falsehoods” has no “Free Speech Grounds” to prevent you from speaking out against him.

        Sorry, you may not like what somebody else says, but the Government has no business in “shutting him up”. However, both you and the government can speak out against what he says.

        I’ve seen too much garbage where so-called Liberals tell Conservatives that “they must shut up”.

        Too many of these so-called Liberals are willing to call for “Hate Speech bans” while using language that I consider “Hate Speech”.

        All “Hate Speech” really actually is “speech that some listener doesn’t like” and the Government has no business in deciding “what speech should be banned”.

        Hey! Where did this soapbox come from! 😉

    1. I appreciate your thoughtful reply, Charley. And yes, you are correct that the founders meant Freedom of Speech primarily to protect political speech. They also reformed the existing libel laws; at the time of the writing of the Constitution, even Truth was not a defense against libel if it was aimed at the Crown or the crown’s government.

      You are certainly correct that the category of things which are said to be protected by Freedom of Speech has indeed widened over the last 200 years. Certainly the founders never intended it to cover things like pornography, for example! My master’s degree was in colonial and post-colonial American history, with an emphasis on political development, so I know how things have changed.

      However, two centuries of judicial experience has taught us a few things since the beginning. One of those is the tendency of over-aggressive laws and courts to stifle contentious speech; libel laws are very strict today precisely because far to often The Truth of a defamatory claim can be hotly contested. Incitement is narrowly defined because governments could previously lock someone up for disturbing the peace if it offended too many people and caused disorder; it could be a way of making the speaker the one responsible for his opponent’s reaction. Likewise with the difficulty of proving that someone who states something untrue knows it’s untrue; if ignorance of the truth (or conviction that the truth is NOT the truth) were not a defense, then scientists and academics would be suing each other over hot-button disputes.

      But the arena of debate regarding Freedom of Speech today isn’t any of those things, it is Hate Speech. Should Hate Speech be protected as Free Speech? On the face of it, you would think that of course it shouldn’t, Hate Speech has no place in civil society. But then you begin to look at cases that are being called Hate Speech. Very few of them are outright vile attacks by one person on another person for their ethnicity, sexuality, religious beliefs, political beliefs, etc. Most of them are opinions by one party that another party deems hateful.

      The issue of Hate Speech is most contentious on university campuses, and the issue is mostly driven by the Left. But not always; during last year’s campaign cycle, students on both the Left and the Right condemned graffiti written on sidewalks (some pro-Trump, some anti-Trump) as Hate Speech.

      There are many people who believe that if something is bad, it should be illegal. And this is a reasonable position; why should people be allowed to get away with doing things that hurt others? But with speech, as with other issues of personal liberty, the prohibition is more damaging than the license and our current legal balance regarding speech has been one arrived at by a great deal of trial and error. But the balance in the courts is almost immaterial right now, with the real threat to speech rising in the public arena. The campus riots shutting down protested speech are a very dangerous sign, and the situation is only going to get worse until faculty administrations return to a policy of enforcing freedom of speech on college campuses.

      When it comes to erring on one side or the other, I would rather go too far in protecting Free Speech than not far enough. Laws can always be tightened if later experience proves it necessary; but organizations like the American Civil Liberties Union have spent decades painfully widening our freedom of speech, often against the opposition of government leaders who would rather the people had fewer civil liberties. It would be a shame if our current social strife cost us all of that progress.

      1. Amen.

        To be honest, there are people that I’d love “to make them shut up” but as morally bad as it would be for me to use force to make them, it would be worse if I could get the Government to “make them shut up”.

        Once, the Government has the power to “make them shut up”, the Government has the power to “make me shut up”.

        Personally, I think anybody who wants the Government to “ban speech” should be concerned about the Government banning their speech.

        Sadly, too many people in favor of “banning hate speech” never consider that their speech might be thought to be “hate speech” and therefore banned.

        Of course, here’s a paradox.

        IMO Charlie’s comments are “dangerous to society” which appears to be his idea of speech that should be banned.

        But believers in Free Speech won’t consider banning his speech.

      2. Yeah and sadly as I see it, precisely because of people that prefer to go too far in protecting “free speech” than not enough is that the society will crumble.

        Because sadly the social strife comes from people pushing the laws for situations that were never intended to be covered by them, and while you talk about 2 centuries of judicial experience, I see it as the slow death of our society, and also when you talk about making laws tighter later if necessary, sadly that does not happen, and the last 15 years have several good examples of this.

        Anyways I disagree and sadly this medium is too slow and the exchange of info is too limited to allow me to have a proper debate with you, to either show you what i mean and the reasons behind my logic, and at the same time to know what you mean and what are the reasons behind your logic.

        In any case thank you for your time.

      3. Oh BTW drak my idea is not that speech should be banned, you misunderstand me on that point, I just think that current laws as they are being applied allow too many people to get away with committing crimes and not being held accountable for it, I think is a bit like having doctors without any Hippocratic oath behind them.

      4. Depends on what you mean by “getting away with crimes”.

        If you’re talking about actual acts of violence against people, then I’d say that those crimes have nothing to do with Free Speech.

        Some idiots have gotten away with calling “violence against others” Free Speech but I don’t consider that Free Speech.

        As for “Doctors without any Hippocratic oath”, again what crimes are you talking about?

        Humans aren’t perfect and we should always act responsible using our Freedoms, but words in general should be countered with other words.

        I’ve heard enough “garbage words” from others that I understand the urge to want to make them shut up but claiming that their “words” are somehow a crime isn’t what I think should be done.

        Not wanting to ban speech?

        Well, what do you want to happen?

        Sue the speakers? That might work but you’d have to prove that their actual words caused real harm.

  4. It’s been a year, and what you said is still true.
    It’s been over 200 years since the Founding Fathers set forth the Bill of Rights, and what they said still holds; although poorly defended by our not-so-Supreme Court.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s