This post by Michael Moynihan, responding in part to this post by Thane Rosenbaum, asks how “free” free speech should be. The question of discriminating between different forms of speech—based on questions such as “is it knowingly false,” “how likely is it to incite violence,” and “is it political”—is an instantiation of an aggregation problem, exactly the type of problem that motivates the analysis and arguments in the forthcoming book I penned with Maggie Penn, Social Choice and Legitimacy.
But, aside from the question of how one would (or could) construct meaningful and coherent “bounds” on “free” speech, I was led to think about the instrumental nature of speech by the following quote from Moynihan’s post (which includes a quote from Rosenbaum’s post):
“Actually, the United States is an outlier among democracies in granting such generous free speech guarantees. Six European countries, along with Brazil, prohibit the use of Nazi symbols and flags. Many more countries have outlawed Holocaust denial. Indeed, even encouraging racial discrimination in France is a crime. In pluralistic nations like these with clashing cultures and historical tragedies not shared by all, mutual respect and civility helps keep the peace and avoids unnecessary mental trauma.” So one would assume that racial discrimination has been dumped on the ash heap of history in France, considering racist thoughts and symbols have been made illegal. How, then, does one explain that the National Front, whose former leader Jean-Marie Le Pen was found guilty of Holocaust denial, is now the most popular party in the country?
The math of politics point here is both simple and arguably subtle. Basically, speech limitations are not imposed at random, and citizens should draw inferences about the motivations of, and information held by, whoever imposed them.
Consider the classical “marketplace of ideas” justification for strong free speech rights. In a nutshell, this argument says that free speech is socially beneficial because it does minimizes the probability that a “true” (and, by presumption, socially beneficial) argument will be prescreened or forestalled by speech limitations. (Consider, for example, the creationism vs evolution debate.)
My argument here, though in favor of strong speech rights, is slightly different. Specifically, it focuses on constraints imposed by the government. This is an important qualification. In particular, democratic governments are in the end chosen or “produced” through collective action. If “ideas matter” (as the marketplace justification justifiably presumes), then evaluating the policies of the government and its potential successors matter. Then, the transmission of ideas between citizens might lead to changes in/pressures on the government.
Accordingly, if one presumes that governments prefer to maintain power, ceteris paribus, then a policy that discriminates between speech based on content can arguably be informative in its own right.
Here’s a quick sketch: suppose that a government favors some policy that may or may not be socially suboptimal and people have variously informed opinions about the social optimality of that policy.
Suppose that people are prohibited from talking “negatively” about that policy. If people don’t consider the government’s motivation to choose/support such a prohibition, then the prohibition would—for the sake of argument—tamp down dissidence regarding that policy. However, if the citizens think about the government’s motivations—regardless of whether they be policy-based, reelection-focused, or a combination thereof—then the government’s imposition of the prohibition would justifiably lead to the citizens suspecting that not only was the policy in question more likely to be suboptimal, but also that the government does not have the best interests of the electorate at heart. (NO WAY!)
In short, all governments are at least practically dependent upon their citizens’ support. If speech “matters,” then governmental limits on speech—perhaps especially those accompanied by the purest of putative motives—should be viewed with suspicion.
Note that this logic gets even “stronger” once one considers the timing of the limitations: that is, if one thinks about a government considering the (per se) costly imposition of speech limitations that might potentially (in a naive world) mitigate agitation against the government, the fact that the government is willing to incur the costs of imposing such limitations in a particular policy area should make one consider whether the government was alerted to an increased frequency of individuals unhappy with the government in this realm. This “strengthens” the conclusion about the effects of the ban—arguably mirroring the Le Pen example above—-because savvy citizens would infer that the imposition of a limitation on speech on a particular topic is itself indicative of citizen unrest on that issue.
With that quick post, I leave you with this reminder of the most eternal right.