Freedom of Speech

150 days until classes start.

From that task list I posted yesterday, I have decided to work on an article governing the right to freedom of speech. And here it is:

The right to freedom of speech is a right against violence or threats of violence for mere words and similar communicative actions.

John Stuart Mill in the book, On Liberty outlined the basic argument for this right.

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

More specifically, he looked at the three possible alternatives for an opinion that others might want to suppress, these being that the opinion is true, that the opinion is false, or that the opinion is a mixture of truth and falsehood.

If the opinion being suppressed is true, then humanity loses the benefits of that truth. Humanity suffers the loss of making decisions based on false information. In this era of “alternative facts”, “fake news”, and social media bubbles, we seem to have forgotten the value of truth. Imagine a person who is thirsty seeking a drink of water. She believes that the glass sitting on the table contains clean water. If her beliefs are true, she quenches her thirst. But if it is false and the glass contains poison, then the results may be fatal. For the sake of our own well-being and that of those we care about, true belief is essential.

Because of the value of truth, one might argue that all false claims be silenced. However, this requires a certainty in knowing what they are – something about which every generation has made significant errors. But even if the opinions being suppressed are false, to silence it by rehearsing the reasons for believing it is false benefits us more than silencing it by violence. If the false belief is suppressed by force, then the truth becomes a dead dogma – cited by rote memory but not truly understood. But when we must exercise our reasons by confronting the fictions expressed against it, then we not only know that it is false, but why it is false, and that knowledge counts for something.

And if the suppressed opinion contains some truth and some fiction, in the same way that the received opinion contains some truth and some fiction, suppression through violence denies us both the opportunity to exchange our fictions for truth and to more fully appreciate that part which is true.

Mill published On Liberty in 1869. Four score years earlier, in 1789, the founding fathers had their own reasons for proposing a right to freedom of speech into the Bill of Rights. Not far in their own past, England – and much f Europe - suffered from a series of civil wars that consisted substantially in factions seeking to use violence to silence those who held opinions contrary to their own. Their interest in ending this history of recurring violence became an interest in restricting the use of violence – in establishing a set of rights understood as actions against which violence was not a legitimate response. The right to freedom of speech was one of these.
If we return to the idea that violence is a legitimate response to criticism and competing ideas, we can expect that different factions will again start to compete to see which can most effectively use violence to silence criticism and competing ideas.

The right to freedom of speech is not a right to immunity from criticism or even condemnation for one’s speech. In fact, both criticism and condemnation are, themselves, protected speech. This is true even if the condemnation takes the form of a protest – so long as the protest commits no act of violence or threatens violence against the one who would be speaking. However, a protest does violate a right to freedom of speech when it creates a reasonable fear for the speaker of violence.

Shouting down a speaker counts as an act of violence. Its practical effect is no different than physically gagging the speaker or stopping the ears of the listener. The advocate of these tactics is an advocate of responding to words with violence.

The right to freedom of speech is not a right to have an audience. It does not give others a duty to listen. A refusal to invite a speaker or a decision to disinvite a speaker once invited violates no right. In fact, invitations and did-invitations that are freely made – not made under duress - are themselves expressions of the values of those who extend or revoke an invitation and, as such, are themselves protected as a part of the right to freedom of speech.

The right to freedom of speech is not a right to deceive. It is a right to express opinions one sincerely believes to be true, but not to express ideas that one knows or some easy effort would have shown to be false.

Thus, the right to freedom of speech is not a right to engage in fraud or defamation. Violence in the form of civil or criminal penalties may be legitimately applied to the person who attempts manipulation through deception. Deception in promoting or advertising a product – such as deception regarding the effects of smoking on cancer rates or greenhouse gas emissions on climate change – are not examples of protected speech.

The subject of defamation brings up the subject of epistemic negligence. A person can be convicted of defamation on the basis of making a false claim that is harmful to another that the accused could have easily checked. In other words, making a sincerely held claim where a little effort would have shown it to be false is not always protected speech. For example, claiming that a person was convicted of a crime, even when sincerely believed, when one can easily check to determine that this is false (and it is false) is not protected speech. This suggests that epistemically negligent false claims that harm others are not protected speech.

Epistemic negligence, even where it may be counted as protected speech, such as in political speech, is illegitimate. An individual who is deciding on policies that have an impact on the lives of others – which certainly includes legislators and office holders – have an obligation to ensure that their beliefs are well grounded on solid data and valid or strong reasoning. Voters should consider it essential to hold candidates to a standard of epistemic responsibility.

Finally, speech that creates a clear and present danger to others is not protected speech. This applies to the paradigm case of shouting "fire" in a theater or inciting a mob to violence. Clear and present danger means that the danger must be reasonably certain to occur and immediate. A vague possibility of distant danger is not sufficient.

Because of the importance of freedom of speech – in terms of exposing falsehoods, keeping true beliefs from becoming dogma, and in preventing factional violence – speech is presumed to be protected, with the burden of proof placed on those who would claim that a given case is in violation of the principles listed above.

As time moves on it becomes harder to remember that there was a time when imprisonment and execution for mere words were common as tyrannical leaders – and equally tyrannical majorities – sought to control the opinions of others by the force of arms rather than the force of reason. We must also remember that, when societies allowed individuals to express new opinions that challenged existing prejudice, we got ideas like that of a government of the people, by the people, and for the people. It is inevitable that, when people see violence as a legitimate response to opinions one does not share, that those with the easiest access and willingness to use the instruments of violence will be those who dictate, as much as they are able, the thoughts of opinions of others.