The Value of Free Speech
If you prefer to listen rather than read, this blog is available as a podcast here. Or if you want to listen to just this post:
A long time ago, in a galaxy far, far away, I used to watch Sesame Street. As I recall it was in black and white, probably because the entire world was still black and white back then. It could also have been because we were poor. In any case, one of the recurring features of Sesame Street was one of these things is not like the other. It even had a song to go with it, which I can easily recall without any effort, such is the power of childhood indoctrination. I would assume that most of my readers are familiar with the segment, but for those who aren’t, the way it worked is they would show four things and three of them would be similar and one would clearly be different. An example might be a chalkboard with three “2”’s and one “W” or an alarm clock next to a knife, fork and spoon. I assume you get the idea or, like me, saw Sesame Street as a child. If not, it’s too late because we are about to play “One of These Things”!
Of course to start with I need to provide you with the “things” (I’m going to cheat somewhat an only provide three things.)
2- United States of America
And to really get us in the mood here’s the song:
One of these things is not like the others,
One of these things just doesn't belong,
Can you tell which thing is not like the others
By the time I finish my song?
Did you guess which thing was not like the others?
Did you guess which thing just doesn't belong?
If you guessed this one is not like the others,
Then you're absolutely right!
Did you guess the USA? If so then, as promised, you’re absolutely right! I know this edition of “One of These Things” was not quite as obvious as the alarm clock and silverware, but also we’re not six anymore either, so hopefully we can expect some deeper thinking. But why is the United States the odd man out? Why is our country the one thing that’s not like the others? On the surface the answer is easy, perhaps even trivial, Russia and China are authoritarian states ruled by a single individual. The USA is a not. (Unless Trump wins and all of the most extreme fears of the anti-trumpers come true.) But why is this? Or more importantly how did it come about?
I think you’ll find that on paper the actual governmental structure of the other two countries is not that different from that of the USA. Russia and China both have elections and they both have legislatures. Russia has the Duma and China has the National People’s Congress. They both have what amounts to a Bill of Rights. Russia has the Rights and Freedoms of Man and Citizen and the Chinese have their Constitution which has sections on Democracy and Minority Rights. They both claim to have an independent judicial system, charged with impartially interpreting the law. Russia’s is modeled on the German and French system, while China’s contains protections like the right against self incrimination, and the suppression of evidence which was obtained illegally.
If the difference isn’t in how the government is organized perhaps it’s somewhere else. Maybe the US has a better economy? That’s possible, but China has, or shortly will pass the US as the biggest economy. And if you’re more focused on per capita GDP, Saudi Arabia is basically tied with the US on that measure but they’re actually more authoritarian than China and Russia. The US, China and Russia all have a strong militaries and nukes to boot, so that’s not a difference. It also can’t be the size of the country, or the number of people, or the latitude. So what is it?
If you remember the end of my last episode then you already know where this is headed. I would argue that a large part of the difference comes down to the level of free speech (and free expression in general) in each country. If we look at the World Press Freedom Index we find that the USA is 41st out of 180 countries while Russia is 148th and China is 176th! I think 41st is still disappointing, but it’s obviously a lot better than 148th or 176th.
It is not lost on me that this could be a chicken and egg question. Which came first the authoritarianism or the speech restrictions? Or perhaps more accurately I could be confusing correlation with causation. Restrictions on speech could accompany authoritarianism without necessary causing it. We’ve definitely seen it come about even in situations where freedom of expression was relatively unrestrained. As far as I can tell the time between the collapse of the Soviet Union and Putin assuming power was a time of relatively free expression (unfortunately the index I was using only goes back as far as 2002, at which time Russia ranked 121st out of 139). But even if speech restrictions don’t cause authoritarianism it’s indisputable that they perpetuate it. And that’s what I really want to get into.
As I said, I’m not entirely sure how good freedom of the press and freedom of speech are at stopping bad things from happening. I would argue that they’re a lot better at uncovering bad things once they have happened. Take the current election as an example. I should mention that I try to be objective here at “We Are Not Saved”, but it’s possible I’ve picked on Clinton more than Trump, so we’ll pick on Trump for awhile. At this point there is a large group of people worrying that Trump is going to be bad news if he gets elected. People are using the term fascist and even comparing him to Hitler, and yet as just a few days ago Trump was polling slightly ahead of Clinton in at least one national poll. In other words despite these warnings there are a lot of people who still think he’ll be a better president than Clinton. And you know what, it’s hard to tell what kind of President he’ll be until he actually is President. Campaigning is a lot different than actually being in office and it’s hard to say what kind of president Trump will be (in fact I think it’s particularly hard with Trump.) All the people who are sounding the warning could be right, and he could be terrible, or he could surprise everyone. But if he does become president and he is terrible, we’ll hear about it (oh boy, will we hear about it). But only because we have free speech and freedom of press. In short, you would hope free speech would be some protection from even electing potential dictators, but even if it isn’t, it has a, potentially, still greater role, that of uncovering and deterring the authoritarian impulse after an election has happened.
For the moment let’s assume Trump is the second coming of Hitler. Or that he at least aspires to be. How does he go from wanting to be Hitler to actually being Hitler. The first step is getting elected President. And while it would have been nice if free speech had prevented that, for the purposes of our argument we’re assuming that it didn’t. But just being made President doesn’t make him Hitler, he has to start doing evil things, and if he starts making all the Muslims wear crescent moon armbands, we’ll hear about it, and presumably do something. The best way for him to get away with doing evil stuff is if we don’t hear about it.
It may be overly simplistic to say that free speech is all that prevents Trump (or anyone) from becoming Hitler, but that’s only because speech itself is so complicated. Setting aside the difficulties of keeping people from finding out about Trump’s Hitlerish acts, if it were possible and people actually could be kept in the dark it would be very effective in suppressing dissent. It’s true that in addition to the protection of free speech that we also have Congress and the Supreme Court to protect us. But as I mentioned above Russia and China also have legislatures and courts and it hasn’t prevented Putin or Xi Jinping from being authoritarian. Also, closer to home, we’ve discovered that it’s relatively trivial to gridlock Congress, and with the next President possibly appointing four new justices, I’m not so sure the Supreme Court will be of much help either.
Additionally don’t forget the vast expansion of executive power which has happened over the last century or so, and the President’s unique influence over the military. (Particularly since congress was cut out of the process of declaring war.) You may be thinking that I am saying that Trump could stage some sort of military coup. While anything’s possible that seems pretty unlikely, but I have much more confidence in the ability of free and open speech to keep him in check than relying on every member of the military to remember their oath to the constitution, or in Trump’s inability to use the military in some other way to boost his popularity. Recall that Putin boosted his approval ratings both by using the military in Chechnya and in his recent annexation of Crimea.
Perhaps the example of the aspiring Hitler has convinced you of the importance of free speech, or perhaps you were convinced already. However, it is almost certain that however important you think speech is that it you don’t believe that it should be entirely unrestricted. Most people, at a minimum, would argue for a ban on child pornography, and I am no exception. But this still leaves us needing to draw a line somewhere between speech that prevents a second Hitler, and child pornography. Where should that line be drawn? A lot depends on the value provided by certain forms of speech and expression. Child pornography provides zero value and causes incalculable harm (to be honest it makes me uncomfortable even typing the words.) While preventing a second Hitler is one of the more valuable things that we can do, as it prevents incalculable harm.
At first glance one straightforward way to approach the problem would just be to figure out at which point the net benefit of speech is negative and draw the line there. Unfortunately while that may appear to be a straightforward solution it is anything but. For one thing, as I already mentioned, logistically it’s very hard to do, particularly in the age of the internet. That said, it’s not impossible. I think censorship by the Chinese government has been more effective than the Information Wants to be Free Crowd would like to admit. Of course that effectiveness has only been possible through a huge degree of centralization, something most Americans would strenuously object to if for no other reason than its potential for abuse (which the Chinese have more than adequately demonstrated.) But for the moment let’s move past the logistical difficulties and just focus on the thorny problem of determining the ultimate value of any given bit of speech
I hear a lot of people arguing that as the internet has increased the quantity of speech that the quality of speech has declined. As the saying goes, on the internet, no one knows that you’re a dog and all opinions seem to carry equal weight. People like to point to the good old days when Walter Cronkite would soberly report the evening news in an objective and dispassionate fashion, with none of the fear-mongering, conspiracy theories, speculation or innuendo of the internet. And yet, this doesn’t seem to have worked all that much better. To put things in context, Walter Cronkite became the evening anchor at CBS in 1962 and yet in 1964 we had the Gulf of Tonkin Incident, one of the more egregious examples of the government misleading people, a cover up with arguably very serious consequences. And yet as far as I’m aware no major news outlets of the day managed to uncover the truth, which was that no attack had occurred and that Secretary McNamara had distorted the evidence in an effort to get Congress to pass the Gulf of Tonkin Resolution.
I can’t say for certain how the Gulf of Tonkin would have played out in this day and age, but I think it’s safe to say that an accurate assessment of what happened would be out there somewhere. And it might even have been pretty easy to find. On the other hand there would have been a lot of false and misleading speculation as well. And even if an accurate description of events had been out there and easy to find, you still would have to recognize that it was the truth, sifting it out from all the other theories which would have emerged. My sense of the situation, therefore, is that we are more likely to have access to accurate information, but only because we have access to more information, both true and false. Therefore one question we need to ask ourselves is whether it is better to have the truth out there somewhere, but buried in a thousand blogs and a million Facebook posts, or is it better to not have access to the truth at all?
Let’s turn from examining how free speech played out (or didn’t as the case may be) in the age of Cronkite to examining how it played out in the age of the internet, using the example of the Clinton email controversy. You may from this assume that I’m done picking on Trump, but in reality you could use any scandal or controversy as an example. I use the email controversy because it’s the biggest item of news at the moment and it represents a real free speech issue with some people arguing that FBI Director Comey is a hero and other people casting him as a villain.
For the purposes of our thought experiment let’s further assume that the email controversy would not have come out in the age of Cronkite. Obviously I can’t say that for sure (though they didn’t have email, so that’s one argument) certainly Watergate came to light and resulted in the resignation of Nixon, but I think the fact that Johnson and McNamara were able to cover up the Gulf of Tonkin, arguably far more serious that anything people have even imagined Clinton doing, leads me to believe that there is a good chance that Clinton’s email issues would not have come out at all. Plus, once again if you can’t imagine a scenario under which Clinton’s email issues would not have eventually seen the light of day, pick one of the other dozens of controversies and scandals that have come out in this election and surely out of all of them one or more would not have come out in the pre-internet era. In other words if you’re uncomfortable with using Clinton’s emails, then use the scandal of your choice as an example.
This leaves us with four possibilities with respect to Clinton’s email controversy, and more particularly their impact:
1- The accusations will cost her the presidency but they shouldn’t.
2- The accusations will cost her the presidency and they should.
3- The accusations won’t cost her the presidency and they shouldn’t have.
4- The accusations won’t cost her the presidency but they should have.
When we examine these possibilities it becomes clear that only the first reflects a situation where too much free speech was the problem. Here the accusations should not have kept her from the presidency and yet they did.
The second possibility is a triumph of free speech. This is free speech working as intended, the accusations reflected something bad enough that she shouldn’t have been president. And that’s what happened.
The third possibility would have to be taken as evidence that people can handle all the free speech we have and then some. That despite the enormous coverage given the controversy, people correctly intuited that it shouldn’t keep her from being President.
The fourth possibility is hard to view in any other way than as a failure caused by too little free speech. If the accusations should have cost her the presidency but didn’t, then why didn’t they. Probably because the true extent was never known.
Of course speaking of never knowing, while we will know on November 9th (unless something crazy happens) whether Clinton is President, we may never know if the accusations flowed from something serious enough to disqualify her from the presidency.
Out of all these possibilities only number one is an example of there being too much free speech, but of course that’s also the one that Clinton supporters probably find most alarming. In fact if Trump does win this will almost certainly be the explanation that many people offer. That the email controversy and in particular the latest revelations, cost her the presidency and they shouldn’t have.
For many of these people the true tragedy will not be that Clinton lost, but that Trump won. And given their fear and loathing of Trump it will appear, in retrospect, that restricting his speech and the speech of his supporters would have not only been justified, but patriotic, particularly if they think that too much free speech was the problem. Of course as always we have to ask who would have implemented these restrictions? And how can we be sure that they wouldn’t be abused, either now or later? To return to the subject of my last episode, Facebook and Twitter could have applied speech restrictions and it would have been legal, and it may, if Trump ended up as bad as they feared, have saved the country. Surely this justifies a few restrictions?
But look back to where we started this episode, to the key difference between Russia, China and the USA. Free speech is our best protection against authoritarianism and that includes Trump’s. Any weakening of it, even in service of what appears to be noble goals, makes it that much easier to get rid of free speech entirely when it becomes inconvenient. The fact that censorship and authoritarianism go hand in hand is not some weird coincidence. It’s only by eroding free speech that authoritarianism can flourish. Therefore any erosion, however legal, however justified, can make it that much easier to do away with free speech entirely when the time comes. Also it’s important to remember that whenever one “side” uses a tool they make it that much easier for the other “side” to use that tool when the end up in power.
To phrase it another way do we want to mangle free speech to prevent Trump from becoming President, and risk having him become president anyway? Only now in addition whatever harm he causes as President we’ve given him a precedent of free speech restrictions to use on top of that. Or do we want to keep the principle of free speech as strong as possible knowing that it’s our best defence against whatever shenanigans he might try to pull? Even if in the short term our defence of free speech makes it more likely for him to be elected?
This is an important point to emphasis. Facebook, Twitter, Instagram, the New York Times and any other newspaper you care to name could pull out all the stops and refuse to give Trump any positive coverage (they may already be doing that) and this could not only fail to stop him from becoming President, but make the situation worse if he does become President. In fact they may already be making the situation worse. Any accurate assessment of Trump’s popularity would have to take into account that a huge amount of his support comes from people who are angry at the censorship they already perceive. As an example, it’s entirely possible that things like shadowbanning Scott Adams help Trump more than they hurt him.
At the end it boils down the ancient trade-off between short-term and long term gains. It’s entirely possible that certain restrictions on speech would be beneficial, as this most crazy of all elections nears its end. (Okay 1860 was probably crazier, but who remembers that.) I certainly don’t claim to be wise enough to know what those restrictions would be or even which side to apply them to. But, I do know, that free speech occupies such an important defensive position that any long term weakening in service of short term goals is a potentially fatal mistake.
We’ve gone so long without any serious censorship (certainly nothing to rival Russia and China) that I think we no longer worry about it. For many people the idea of the United States descending into authoritarianism appears as probable as Elvis being found alive (he would be 81, nearly 82), but I assure you that it’s not. Free speech isn’t free, it’s costly, and yes, with things like child pornography (there’s that phrase again) there should be restrictions, but we should be very careful about those restrictions, even, if not particularly, when it comes to stuff we hate. As expressed so memorably by Oliver Wendell Holmes Jr.:
...if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.