On Freedom of Speech

Should content matter?

(Originally published 3/19/21)

“If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”

Thomas Jefferson, First Inaugural Address, March 4, 1801

The Bill of Rights has a rather interesting history. The federalists opposed the idea saying it was not necessary. The anti-federalists, afraid of too much federal power, insisted that the Constitution specify certain individual rights in plain language. To ratify the Constitution, the federalists compromised and included a Bill of Rights – and James Madison (a federalist) was one of the editors. Free speech topped the list.

The First Amendment, at first glance, appears to be a bit of a shopping cart – religious freedom, freedom of the press, the right to peaceably assemble, etc. But it is easy to sum up as this: people have a right to think and speak as they please. The Founders decided, rightly, that governments’ role in this was “hands off.” There are very practical reasons for this; for starters, no one can control what anyone thinks in no small part because they can not know what anyone thinks (if you can’t measure it, you can’t manage it – as the saying goes). As for speech, the Founders, again rightly, determined that free speech was essential to self-government. If, for example, it was illegal to criticize the government, what then would prevent tyranny? Was not the Declaration of Independence a clear criticism of the British Government?

Arguments over criticism of government are not however what we face now. What we face now is “cancel culture”, book burning (and banning), and silencing of conservative voices. Recent news articles show plainly that this nation’s number one book seller bans books.

Ideas are not much different than products. If the market likes the product, it sells. If not, it doesn’t. If artificial market controls must be put in place to favor one product over the other, is that not an admission that one product is inferior to the other? If progressives want to silence conservatives, they are openly admitting that their ideology can not compete in the free market of ideas.

There are very few limits (so far) on the First Amendment. This is as it should be. The voices from the extreme left and the extreme right are, to most of us, repulsive. But it is vital that we protect them none the less. It is tempting for the majority to pass laws silencing the minority fringe – but it is a mistake. Who would decide what speech is acceptable and what is not? The current president? The previous president? Are both parties ok with both of those eventualities? Not likely.

The classical liberal argument, at least to my mind, has been that free speech is good in the abstract. In other words, without regard to the content. That in order to preserve the good content, we must also protect the bad content; the price we pay to protect the good.

There now appears to be a “populist” notion on the left (and some on the right) that only the “good” content deserves protection. Trouble is, they do not provide a mechanism by which we can tell good from bad.

“No – no” progressives will cry, “You’ve got it all wrong. We want to ban hate speech, things that offend and upset people, lies and misinformation.” Yet, some of the most alarming aspects of H.R. 1 are the restrictions on political speech.

Do they mean, for example, when Joe Biden said during the campaign, and a talk show host said much more recently, that Antifa is an “idea” or a “myth”? Or the argument that an “assault weapons” ban will reduce violent crime when it has already been tried and proven to have no such impact? Are they referring to those lies and misinformation?

By hate speech, do they mean calling people “racist” or “Nazi” for disagreeing with them? Are they referring to the tirade spewed by the representative from California’s 43rd district?

The Washington Post recently had to “correct” (retract) a story about President Trump’s phone conversation with a Georgia election official. How would such a thing happen if individuals were not allowed to question, doubt, investigate, and think critically? How would the “good” content (the truth) come to light? 

The First Amendment does not exist to protect speech we all agree with. It exists to protect exactly the opposite; to protect controversial speech. It exists to enable and preserve the free market of ideas.

The arguments in favor of “hate speech” laws are nothing but an emotional appeal. In practice such laws would be subjective, or worse arbitrary. Almost anyone can claim to be offended by almost anything. I for one am deeply upset and offended by politicians promoting policies that would weaken the First Amendment.

We have already seen, in practice, how arbitrary “speech codes” are. Some college campuses have already been forced to abandon their speech codes. Parler was shut down allegedly because they were not adequately policing content, the events of January 6th being at the time at the forefront, even though other platforms were much more “involved” in those events (and not shut down).

TheRealTommyC did some podcasts on the topic of Parler being shut down, links here, and here.

I disagree with Black Lives Matter. For that, some (and more than just a few) would call me racist. Their argument would be that I refuse to side with the oppressed against the oppressor, that they are trying to elevate mistreated people and my opposition is proof that I agree with the mistreatment. Wrong. I can’t read anyone’s mind, so obviously I can’t know what their motivation really is. But I can read their website which describes their goals, and I can see on the news and on the internet what their methods and rhetoric are. And I can disagree with elevating one race above others, disagree with riots and looting, and disagree with disrupting people trying to buy groceries, go to work, and take care of their families, without being racist.

If you don’t like Dr. Seuss, don’t buy the books. If you don’t like Parler, don’t log in. That is the market at work.

Dr. Robert Mather, in a recent podcast, expressed some thoughts on cancel culture here.

One of the great strengths of the scientific method is self-correction which is only possible if we are allowed to question what we think we know. The free market of ideas, properly understood and respected, provides this same self-correction.

I agree with the Founders that the First Amendment is vital to self-government. Those that would have speech restricted should consider this: if the people do not have a right to think and speak as they please, do not have a right to assemble and petition, what options are left to them? Our own history provides the answer, and it is not at all appealing.


Leave a Reply