Matt Zeitlin: Impetuous Young Whippersnapper

I should note that I’ve only barely dipped my toes into the free spech literature, and so if my points have been made before by someone else, or have been conclusively answered and rebutted by another, I’m not referencing them because I’m ignorant, not because I’m trying to do some intellectal claim jumping. 

There’s an idea that seems innocuous, but I find rather silly. Namely, that freedom of speech is some sort of natural right that all persons have by virtue of being persons. Because we are autonomous and free human beings with the ability to express ourselves and communicate, it follows that we should have the maximum feasible range of free speech rights. Stephen Hayman, whose book “Free Speech and Human Dignity” I found through a google search of “free speech as a natural right” expresses this rather succintly:

According to this view, freedom of speech is founded on respect for the autonomy and dignity of human beings. But these values also support other fundamental rights, ranging from personal security and privacy to citizenship and equality. Speech that invades these rights is subject to regulation through narrowly drawn laws, except in cases where the value of the speech is sufficient to justify the injuries it causes

The obvious question to ask proponents of this view (from Locke on down) is “what is a natural right?” and “why is free speech one of them?” Heyman says that his theory of rights “is based on the idea of mutual recognition and respect: rights instantiate the respect that individuals owe one another as human beings and citizens.” and that “those rights are founded on respect for the intrinsic worth of human beings and are meant to enable them to develop their nature to the fullest extent.”

The tricky parts are that I don’t suspect that Heyman has a great answer to “what is respect” or “why do we owe eachother respect as human beings” and “what is the intrinsic worth of human beings, why do we have intrinsic worth?” and so on and so forth (Let me note, it’s very possible that Heyman actually answers these questions in the same way I do, I haven’t read his book. But I think we probably disagree because he uses concepts like ‘dignity’ and ‘intrinsic worth’ which generally signal a fundamental difference with my approach to these issues).

I think one can develop a comprehensive system of rights, including those of free speech, that will balance competing values and insure protection against tyranny without reference to any natural rights tradition or notions of intrinsic values or dignity. Here’s the quick and dirty of it.

People form governments, write laws, make constitutions and such for the purpose of ensuring voluntary cooperation that advances everyone’s interests in a non-zero sum way. There are plenty of accounts of how this happens (or should I say, how it should happen or how a hypothetical way of this happening explains a theorists’ preferred mode of government), but from Hobbes through Rawls, there’s a basic agreement of how this stuff basically works. The difference in my mind are between those like Robert Nozick(and Locke and Hobbes and most social contract theorists) who just propose as an axiom that people have individual natural rights that should be protected, and those like Rawls who actually explain why we have these rights or why we would want them. And this is where the knotty question of free speech comes in.

For the natural rights types, we have free speech and every curtailment of free speech needs to be justified by showing some sort of concrete harm to someone else – i.e. shouting fire in a crowded theater. But this standard is by no means universally applied. For example, starting since Bethel v Fraser,  there has been been a steady curtailment of student free speech rights, with a lone exception – political speech.

We generally recognize that political speech has a place above other forms of speech and that any restrictions on it should face a higher level of scrutiny than restrictions on other forms of speech. This view would imply that freedom of speech is about something else than human dignity or intrinsic worth or any natural-rights based claim. Instead, what we all actually seem to agree on is that freedom of speech is a concept whose utility is in allowing free deliberation among parties and thus further encouraging mutual cooperation.

So, I think that we should be able to curtail this type of speech:

 

Photographer Joe Eddins and I headed over to the closest one and found a steady line of voters hoping to cast ballots early. Most seemed to be Obama supporters and several had come from the rally. Nearly all the voters were black.

 Also at the polling site was a group of loud and angry protesters who shouted and mocked the voters as they walked in. Nearly all were white.

 

 As you can see from these videos, no one held anything back. People were shouting about Obama’s acknowledged cocaine use as a young man, abortion and one man used the word “terrorist.” They also were complaining that Sundays are for church, not voting.

 

 

This is speech whose sole intent is to imitate people from participating in the democratic process. It’s speech with the sole end goal of inhibiting the ability of free people to collobaratively make decisions. It, to me, seems worse than most “hate” speech, incitement or any other category of speech most find objectionable. Now, the problem comes with how to regulate this type of speech. Although I’m very skeptical of slippery slope arguments people make about the sanctity of free speech (Europe has much more restrictive speech laws than the US, but I don’t think anyone would argue that we’re much freer), I still think we should be careful about any speech restrictions. It’s very hard to predict what the long-term effect of offensive of inflamatory speech will be, and content-based restrictions are certainly open to abuse and malenforcment. I guess what I’m really saying is that there should at least be a recognition by people that free speech is not always good and that we shouldn’t simply resort to platitudes about the only cure for bad speech being more speech and poorly thought-out slippery slope arguments when we’re talking about free speech.

PS

What I just wrote is pretty hard to reconcile with what I wrote back in June

But I don’t think one needs to make the slippery slope argument to generally defined “tyranny” to defend a broad proection for free speech, but instead one needs to make a slippery slope argument about restrictions on speech becoming too broad. As Jesse Singal argues, once you enshrine certain vague categories of speech that can be restricted – “offensive” speech, speech that offends dignity etc, inevitably these restrictions will be read incredibly broadly and freedom of speech will be tampered down. So, in Canada for example, they are not on the slippery slope to tyranny, but is a world where Mark Steyn is (rightfully, I may add) a martyr for free expression a good one?

Free speech is one of those values that anyone who claims to care about liberalism must hold incredibly dearly. Liberal theorists from Mill to Rawls have put freedom of expression at the top of their list for protected and guaranteed rights because it’s a key component to two key liberal values – autonomy and open discussion. The autonomy argument is obvious, restricting freedom of speech (especially when there’s no “real” or demonstrable harm) is pretty damn close to thought control. As for the value of a multitude of opinions,  Mill argued that only a totally free speech environment could eventually figure out “truth” or good arguments. In short, we need a market place of ideas. And anyone who has any respect for the Enlightenment can tell why this argument is A. true and B. self evident.

Freedom of speech is one of those issues that goes to the very heart of what it means to be a liberal. A liberal who doesn’t support expansive protections for speech, especially offensive speech, can hardly call themselves a liberal. Free speech is a value in its own right, and it’s one that goes to the very heart of what it means to live in a liberal democratic society.

I don’t know if I’m really being inconsistent. I still think that an open public sphere and a proliferation of viewpoints and opinions is incredibly important. I think we should be suspicious of anyone who wants to restrict speech and should be even more suspicious of legal restrictions on speech. But I also think that we should be able to talk about free speech without using poorly thought-out claims about human dignity and autonomy.