We’re on a collision course with technology. Free speech is being killed in order to save it.
Something is always boiling up that involves free speech. Cartoons are drawn of the “wrong” person, somebody is jailed for speaking out and gets the Nobel prize, there are plans to build a mosque in the “wrong” place. And some people picket funerals to gloat.
All of these things are a step too far for some people. Others insist that we can’t draw any lines without sliding down a slippery slope of more and more lines until there’s no free speech left.
The dilemma doesn’t actually seem intractable to me. Try a thought experiment. You’re in a huge room with 10,000 other people. Nobody can say anything. There’s total silence except for the occasional suppressed cough. Is there any freedom of speech?
Now you’re in the same room, but anyone can speak and anyone can say anything. Everybody’s talking — shouting, really, to make themselves heard. You can’t even hear yourself speak. Is there any freedom of speech?
We’re not in the first situation anymore. When the great thinkers of the 1700s were articulating the essential freedoms, few people had the means to disseminate their ideas to begin with, so there weren’t many voices. Nor was there the technology to din at people 24/7/365. So noise was not a large concern. They worried about silencing.
Silencing was and is a crime against inalienable rights and has to be prevented.
But noise can kill a message just as dead as silence. Either way, you can’t hear it. Either way, we lose the freedom of speech. Either way, the loss is just as lethal to a free society.
Insisting that everyone, everywhere, for any purpose, has an equal right to speak hasn’t preserved freedom of speech. It’s killing it. When everybody can shout as loud as they can about whatever they want, you either can’t hear anything or the biggest voices will dominate. It’s right back to the king having the only voice. The fact that it’s not literally a monarch these days doesn’t make it all right.
Yes, I know. If speech is limited we have to — horrors! — draw some limits. Well, … we already do, and that hasn’t killed free speech. That promotes it. Unless the signal to noise ratio favors signal, there is no signal. That’s not exactly hard to figure out.
So, let’s start with the easy cases, the ones where limits have long been applied and clearly don’t lead to disaster. Free speech doesn’t confer a right to perjury, to wrong answers on exams, to yelling “fire” for nothing in crowded theaters, or to incitement to riot. Truth in advertising laws say it’s unacceptable to lie in order to extract money. None of these limits has led to thought control. It is possible to apply limits on speech without losing freedom. As a matter of fact, we’d lose freedom if they were not applied.
If some limits work, then limits work, and people can stop pitching a fit every time there’s talk of limits. The rational response is, “What are the best limits for preserving freedom of speech?”
Half the answer is contained in the question. Anything that remains murky after our best efforts to find the limits gets the benefit of the doubt and is covered by freedom of speech. That part’s not hard to figure out either.
The hard part is updating the limits for a technological age in which everybody can shout their point of view. If everybody gets veto power, nothing can be said. If there’s no way to draw the line, nothing can be heard. There has to be a better way.
There’s a common denominator to the limits that work. If everyone claimed the right to the forbidden kinds of speech, chaos would ensue. If everybody lied, incited to riot, and yelled fire in crowded theaters, life would become impossible. Those kinds of speech require double standards. Only some people can use them and only some of them time. Everybody else has to keep the system working. Double standards have no place in a democratic society, so that kind of speech not only can be but must be forbidden. It’s noise. Bad noise. (Discussed at greater length in Free Speech vs. Noise.)
So, how does that help us resolve any of the disputes? Let me give it a whirl.
- Publishing cartoons of Mohammed in a Danish newspaper explicitly to make the point that Muslims cannot dictate what is published in secular papers. This one belongs in the “Well, duh!” category. Religious people don’t have to read secular papers. This is not an in-your-face exercise. If one side can veto the other’s reading material, then in a world without double standards, secular people could object to anyone reading about God in a holy book. Everything rapidly descends into absurdity when that kind of veto power is allowed.
- Building a cultural center containing a mosque near Ground Zero. If there is to be freedom of religion, there have to be places of worship. Some areas are certainly not appropriate. For instance, in a secular government that separates church and state, it would be wrong to worship in or next to government buildings. (I’m sure protests about the Congressional Chaplain will break out shortly.) But to start limiting worship with no basis in justifiable principles ultimately means the end of freedom of religion. And, again, if one side can suppress another’s beliefs, it can go in the other direction too. That way lies madness. There’s plenty of proof all over the world.
- Pro-democracy activist in China should not be jailed for speaking out. Okay. Seriously Duh! (And that goes double for his wife!)
- And then there’s the Phelpses and their crusade against queers. Do they have a right to speak out? Of course. Do they have a right to be sure they know what God thinks? Just as much as anyone else does. Is somebody else’s funeral their only avenue to expression? No. No, no, no, no, no. They can make websites, write books, sing songs in their churches, fulminate there, parade, start radio shows. Their freedom of expression is not limited.
What’s limited is their right to use it in a way that deprives someone else of their own rights. Political speech is very heavily protected, but you can’t use it within 200 feet of a polling station on election day. Because that would interfere with people’s right to vote. It would be a relatively minor annoyance, but it’s still illegal. If interfering with voting is enough to place a limit on free speech, how much more so interfering with the even more basic human right to bury one’s dead in peace.
When everywhere else is a venue for free expression, it’s idiotic to insist that crashing a stranger’s funeral is the only thing that will do. Of course, the Phelpses are idiotic, so that’s no surprise. The rest of us shouldn’t be as confused as they are about where the limits lie.