Basic Principles of Free Speech: Part 3
The people of the United States have cherished freedom of speech so much that it is written into the very first amendment to the American constitution. It is a liberty that has been defended by American protesters and American courts. Those who have defended the Constitution through military service have endured the Westboro Baptist Church’s attempts to defile the funerals of their brothers in arms. A nation that will endure seeing its fallen slandered at their own funerals must be devoted to free speech indeed.
Yet today America sees numerous voices that wish to drown out speech they do not like. The movement seems to have started on college campuses, but has now grown to encompass the heads of major technology firms and even US Senators. The basic argument against free speech is that some ideas are too dangerous to express. We worked through this argument and three counter-arguments to it in the first part of this series. The second part of this series explored why banning political speech in particular is a fundamental affront to human dignity.
This piece will explore the dangers of empowering censors in a free society.
The Danger of Empowering Censors
The First Amendment’s prohibition on censoring speech applies specifically to Congress. Some Congressmen, such as Senator Chris Murphy of Connecticut, have called for private corporations like Twitter to do what Congress is forbidden from doing. In this way they seek to empower Twitter, and other private platforms, as political censors in America. One might say that it is a violation of a Congressman’s oath of office to work for a back-door ban through private corporations when he is forbidden to legislate such a ban openly and honestly. But let us instead consider why there is a Constitutional prohibition on Congress simply legislating such a ban itself.
In opening pages of his seminal work “On Liberty,” British thinker John Stuart Mill points out that the American experience has produced an insight on defending liberty that pure philosophy might not have. Ancient defenders of liberty, he wrote, thought of the state as usually being a power that had its own interests. The state, or the king, needed to be constrained from using its power to oppress the people when its interests and theirs conflicted. A philosopher might think that would not be true in a democracy, as the people are the sovereigns and are regularly offered the chance to replace elected officials. Then, the philosopher might think, any power could be entrusted to the state because it would necessarily be in the service of the people’s interests.
You might think that was just an axiom of democracy, Mill went on, until you’d seen democracy in operation. Practical experience proves that you still need prohibitions on state power – Constitutional liberties, such as the protection for free speech. The reason you do is that there are factions among the people even in democracies. A faction that wins control of the government will often use its powers to oppress other factions. The old problem of kings does not go away even if you sometimes get to be the king yourself. If the democracy works well, others will sometimes get to be the king over you. If the democracy fails, so that you yourself get to be the king forever, then the old problem really has come back full force. The part of the people that would feel oppressed by you will regard you as nothing else than an oppressive tyrant.
This should be evident to the anti-speech protest groups if it was evident to anyone. They are the ones who proclaim that they think the government of the United States is fascist, racist, and awful in so many ways. If that were true, the last thing you would wisely do is give that government more power. You should instead try to make sure that the government’s power to be oppressive was limited by strict prohibitions – like the First Amendment.
Nor does it help the situation to outsource oppression to private corporations, so that they do for the state what the Constitution forbids the state to do for itself. That is certainly not less fascist. That is what Mussolini meant when he talked about fascism: corporate power aligned with the state, in the service of the state. Indeed, in other contexts the American Left is usually the ones who are able to most clearly see the dangers posed by corporate power to a free society. Just as it is incoherent to complain of fascism while asking corporations to align with the state in suppressing speech, it is incoherent to complain about corporations and capitalism while doing so. It doesn’t make any sense to talk and act this way.
The Danger of Kings
At least, it does not make any sense if one takes these protest groups at their word about what they want. If that is the case, they have hit upon an incoherent and unredeemable idea and they should be talked out of it. But there is another possibility.
I said before that if our democracy fails, so that one faction gets to be the king forever, then the old problem of kings has come back full force. Let me put it another way: to say that you want a state you admit is oppressive to have unrestricted power is to say that you intend to be king forever. It would make no sense to ask for the state to have more power to oppress you. If you say the state is oppressive and yet seek to empower it further, you must intend to wrest that power permanently away from the other factions in your democracy. That means that you intend to end the democracy, so that your opponents can never again exercise power. To say that is to say that you intend the democracy to fail, and the Constitution to be set aside in favor of your power.
If that is the true intent, then – and only then – do these attempts to empower an allegedly oppressive government make sense. If that is the true intent, however, no American should support it. Nothing will guarantee the oppression of the weak and the poor more than an empowered state in the hands of those who wanted oppressive powers for that state. Whatever sort of people they think that they are, they are acting like tyrants and moving towards tyranny.
All Americans should reject such ideas. It is incumbent upon us to make sure that our children inherit our traditional, Constitutional liberties. Free speech is first among these. Rather than looking for private partners to empower as censors, our elected officials should be looking for ways to ensure that our public debate is carried on under First Amendment norms wherever it occurs. Freedom of speech in American politics is crucial if we are to remain a free people at all.
 John Stuart Mill, “On Liberty,” in On Liberty and Other Essays, ed. John Gray (Oxford World Classics, 2008), 6-9.