First Amendment Symposium Part IV: The First Amendment is Properly Rated (But Perhaps for the Wrong Reasons)


“What he [John S.] says may be irrational, incoherent, unfounded, and foolish, but I defend to the death his right to say it.”

-Josh*

*I have as much claim to this phrase as Voltaire.

This response will proceed in three steps. First, I will respond to misguided presumptions that underlie John’s critique of the First Amendment: 1) that the goal of the First Amendment is not to suppress any speech and 2) that free speech absolutism is the only interpretive option for the First Amendment. Second, I will refute John’s two main claims: 1) The First Amendment is only aimed towards preventing government suppression of speech, but the coercive non-governmental forces and differential access to forums are problems just as serious that the First Amendment promotes or, at least, does nothing to prevent. 2) There is nothing inherent about the First Amendment that promotes the Millian benefits that flow from free speech. Third, I will discuss the Citizens United issue separately since it’s sufficiently distinct from the other issues in this response.

Citing Mill, John fallaciously argues that “the general principles that underlie actual liberty of thought and discussion” are primarily grounded in opposition to the “suppression of opinion, whether it be by government or any entity….” [emphasis added].

In my post ranking the First Amendment at the top of the Bill of Rights, I anticipated this response and specifically indicated that I wanted to preempt it. Let me repeat what I argued since it directly responds to (or preempts) John’s presumption:

First, and Mill makes this distinction, to say that speech should be permitted does not mean that it should be said. Social norms and reputation matter a lot in affecting what people say and don’t say; the government is just one factor that affects speech, but the difference with the government is that its restrictions’ effects are more widespread (not just limited to your community or your audience) and more directly physically coercive,* resulting in fines and/or imprisonment.

*Community norms surely may be coercive at times too, but I consider physical coercion, particularly confinement, a bit more harmful than other forms of coercion even though the other forms may nonetheless be painful.”

Of course, some of this depends on how you define suppression or how the suppression comes forth. Some suppression is surely bad. A religious group threatening to stigmatize an adherent for promoting evolution is a bad form of non-governmental suppression. But, an outspoken racist not yelling racial epithets on the street due to social norms is a good form of non-governmental suppression. It’s unlikely that him saying those words on the street is going to lead to a rational discussion that results in him letting go of his erroneous racist beliefs. Maybe in a different setting, say while discussing race with his formerly racist friend, the racist expressing such racist beliefs will elicit some sort of beneficial discussion that changes his mind. But, in some settings, suppression is actually good. What’s really categorically bad is governmental suppression, because of the reasons of scope and physical coercion I discuss above. Non-governmental suppression is more of a mixed bag and certainly not the primary goal of free speech.

John’s second presumption is that free speech absolutism is unquestionably promoted by the First Amendment. John says “Is there something vague about ‘Congress shall make no law’ that I am missing?” No, but there’s something about “abridging the freedom of speech” that you might be missing. As I explained in Part I of my critique, it’s not entirely clear what freedom of speech includes, notably whether political donations are protected by the First Amendment. So, while I have no problem defending the absolutist free speech John discusses, it is not obvious that the First Amendment promotes this.

John’s first and most significant claim is that the First Amendment doesn’t prevent the access/coercion problem. Certain groups have privileged access to speech, John argues, which leads to “different inequities that have nothing to do with the quality or degree of truth in the speech.”

It’s not really that certain groups have privileged access to “speech,” it’s that certain individuals have privileged access to forums to express speech. The wealthy corporation can buy an advertisement in the newspaper, the pundit can speak before millions on national television, and the talented journalist can write magazine articles that thousands read. Does this lead to certain views being overrepresented? Surely. Death panel talk in the recent media discussion of healthcare is one such example. Nonetheless, with the advent of the Internet, speech has become quite decentralized. The major TV networks and newspapers no longer have a monopoly over the dissemination of information. Fringe views are more accessible than ever before because, once one has the Internet, the marginal cost of accessing these ideas is virtually zero. If anything, the bigger problem might be one of confirmation bias: that individuals seek out “speech” that they agree with rather than seeking to challenge their views. But, as I stated in my first post, the harms that flow from this privileged access problem (or the confirmation bias problem) need to be weighed against the harms that flow from the alternative, which is government regulation suppressing speech.

John can equivocate all he wants about how he actually likes free speech but the First Amendment is just promoting neutrality not free speech, but, in the end, to be consistent with the rest of his arguments, he HAS to support government regulation of speech to respond to this privileged access problem. And, the harms that flow from this regulation are generally consistent with the harms Mill foresaw. Something like the Fairness Doctrine, which John alludes to, has the effect of government suppression of speech. The Fairness Doctrine requires the holders of broadcast licenses (e.g. TV stations) to present “balanced” views of important public issues: what this results in (unless, like Fox News, the TV station was already perfectly fair and balanced) is TV stations being forced to choose to cut programming that they otherwise would have shown. The result? Government suppression of speech. Because of the unique position the government is in to coerce, as I discussed earlier, this is not a good outcome.

Additionally, I never claimed that the promotion of free speech would be absolutely truth-promoting. There ARE trade-offs and John points out some of those trade-offs. But, in an evolutionary sort of way, there are non-governmental mechanisms that do promote truth. Newspapers compete to break truthful stories. Most people are somewhat rational and will occasionally change their minds when exposed to persuasive ideas. In the past 60 years or so, a large number of people have become persuaded that smoking is harmful to their health, that gays are not evil, that a centralized command government is economically flawed, etc. Ideas matter and the battle of ideas matters. In some instances, privileged access and confirmation bias may slow truth promotion, but it rarely eliminates it. Government regulation of speech has a much higher risk of eliminating it.

This brings me to John’s other claim that  “the First Amendment doesn’t really deal with [the values promoted by free speech]…. In other words, if the First Amendment ever stopped leading to good outcomes, then, well, too bad.” Holmes’s view is insufficiently sensitive to the uniqueness of the United States. If you look at almost every significant suppression of a category/type of speech across different countries, the suppression has almost always been put into force by a government. The United States is exceptional in its possession of judicial review (based on a Constitution that is almost universally acknowledged to override statutory law) the prospect of which limits Congressional and legislative action. The First Amendment itself has, as John has said, promoted a sort of sacred view of freedom of speech or, put more neutrally, a cultural premium is put on freedom of speech. Individuals in the United States, on balance, value free speech far more than individuals in most other countries. These are tied to more “collective” free speech rights such as the right to petition and assembly, as I discuss in my initial post, which help enforce the connection between free speech and peaceful resistance to the government. The result, then, is that getting to the dystopian point that Holmes alludes to is technically possible but is just not very realistic considering the context and background of the United States.

Now, Citzens United: Justice Stevens says in his dissent: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it…Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment , it was the free speech of individual Americans that they had in mind.” What Stevens is essentially arguing is that the freedom of speech does not apply to corporations, that when we try to apply the First Amendment to corporations it is incoherent. Whether Stevens is right is a subject for another Symposium, but the point is that even if political donations are “speech,” the nature of the relation between the speech and the individual is quite different than the rest of the speech we discuss and requires a more nuanced discussion not conducive to a few sentences here and there in a broader discussion of the First Amendment. Of course, some of the arguments I made above about non-governmental suppression still apply to Citizens United, as a whole using Citizens United as a guiding example is unrepresentative of free speech generally.

Ultimately, the fact that the First Amendment prevents Congress from making any law abrogating the freedom of speech is a big deal. Because of culture, the evolutionary nature of competing ideas, and judicial review, among other factors, the First Amendment isn’t just promoting meaningless neutrality: it leads to real benefits. Of course, these benefits aren’t absolute and John’s arguments shine light on these facts, but his arguments don’t come even close to justifying an alternative scheme or the proposition that the First Amendment “doesn’t really deal with any of [the benefits that flow from free speech].” The First Amendment is properly first.

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One response to this post.

  1. […] Trey Parker. Leave a Comment Exhibit A for why there should be abridgements on some speech: To prevent people like Josh from quoting himself in his own […]

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