The Sophistpundit, my eldest offspring, has a long post advocating a thoroughly libertarian approach to freedom of speech. This subject has never exercised me much. I have travelled a bit, read history a bit, and I’m willing to wager that any country that makes a cottage industry of comparing the President to Hitler, and popularizes TV cartoons like South Park – mocking John Smith as a fraud and Jesus as a faker (“Turn around,” he pleads before every “miracle”) – is as free as has ever been, possibly as free as can ever be.
Still, I’m interested in the libertarian ideal, which I think is a default position for many otherwise perceptive minds today. Libertarianism (ugly word) I will tackle in a later post. Here I’ll touch on how it plays out with regard to freedom of speech.
Sophistpundit rests his argument on the Bill of Rights: “Congress shall make no law . . . abridging the freedom of speech, or of the press. . .” I believe he maintains that, short of doing harm, this entitles every citizen to say anything, anytime, anywhere. “I disagree with laws limiting profanity,” he writes. “I disagree with laws limiting violence, nudity, and sex on television.”
Such laws, he holds, are unconstitutional. Further, they are immoral: by compelling morality, they are no different than the forced veiling of women by the Taliban. Citizens should come to good behavior by means of self-restraint, not external compulsion. Bad behavior should be punished with a free market approach:
If an institution upholds values or behavior that you resent or disagree with, then you and those who agree with you should pull your resources and support away from them. You should then invest those resources in institutions you feel are more appropriate or moral.
In this way, disputes about the limits of free speech will be kept out of the hands of judges, who Sophistpundit believes (rightly, in my opinion) are liable to produce arbitrary interpretations of the law, including baroquely argued limitations on free speech.
Where to begin? First, with the letter of the law: the First Amendment bars Congress, and by implication the Federal Government, from interfering with free speech. Nothing is said about the right of states and localities to do the same. In fact, when the Constitution was ratified many state and local laws were in place banning obscenity, profanity, lewdness, nuisance-making, and a host of other forms of speech. And while we tend to be more liberal today, the principle remains.
If my next-door neighbor tries to put up a huge billboard, or open a sex shop, the power of the law will compel him to stop. Why should that be so? Because the various goods of the world conflict with one another, and a community is by definition the choice by free citizens of certain goods over others: in this case, having a neighborhood that is pleasing in appearance and safe for kids trumps my neighbor’s freedom of speech.
The fundamental error of libertarianism is to assume that the law dictates the limits of behavior. This is both flawed logic and impracticable as a social principle. The errant logic comes with the assumption that social life flows downward from grandiose principles, like a mathematical equation. It doesn’t. Social life flows upward from cases, moments, trials and errors, historical conflicts and resolutions, out of which the grand principles are generalized. Custom and morality, which are based on tradition, determine the limits of acceptable behavior.
Can parents abridge their children’s speech? Of course they can. (The advent of children also abridges the parents’ speech. I used to wonder why otherwise normal males would use words like “dang” and “gosh.” Then the Sophistpundit was born.) Can a military commander abridge the speech of his men? Again, yes. Can a congregation abridge what is said in church, or a company what is said at the office? No question, and they can call the cops on “dissenters” if need be. Even at RFK stadium, with the Nats winning, there’s a limit to how loud my profanities can be shouted, before I get thrown out of the park.
In the MSM, the audience or the owners abridge what is said on TV, or in a newspaper, or on the radio. Dollars or ideology decide.
None of this is written anywhere. None of it flows from any great principle, but rather from a sense of rightness largely derived from the way one is raised. What is appropriate at RFK won’t be tolerated in church. What I say to my drinking buddies I’ll never repeat in front of my young daughter.
Speech is never “free”: it has a value and a cost. Can we, then, treat it like a commodity, as Sophistpundit suggests? We can and often do, but there are limits. The marketplace requires a set of shared rules if it is to work adequately. Morality precedes, and makes possible, the free exchange of goods, including speech. At some point, the power of the law makes an appearance, otherwise the shouters and the bullies and the con artists will push the rest of us offstage. Where that point is has changed in time, and will change again, and is impossible to fix mathematically.
The value of speech varies greatly. The right to shout naughty words is, to most of us, little valued. Political speech, on the other hand, is of the highest value, and should be protected in every place and occasion, regardless of how shallow or wrongheaded its content may appear.
For this reason, the abridgment of political speech by legislation such as McCain-Feingold, which sparked the Sophistpundit’s libertarian explosion in the first place, makes me rather queasy as well. That the Supreme Court acquiesced in this law pokes a larger hole in the First Amendment, I think, than all the legal compulsion and customary restrictions we have inherited from the past.