In Defense of Free Speech

When the internet opened up to the general public three decades ago, we thought that governments around the world would never again be able to suppress the truth. The battle cry of the early days of the interconnected world was: “Information wants to be free!”

How naive we were!

New attacks on free speech

Calls to restrict speech are frightfully frequent these days. The social-media era has given us “cancel culture” which, although not adopted by government, has made it morally acceptable for many to silence their opponents. In the recent pandemic, disagreement with state-imposed restrictions and mandates in some cases led to serious government intrusions on individual freedom. These measures were accompanied by an implied threat throughout the pandemic that governments could silence critics of lockdowns, mask enforcements, and vaccine mandates.

The Russian invasion of Ukraine has led to more direct speech restrictions. Some Western democracies have taken aim at arguments on the war that don’t comply with government-set parameters. According to multipolarista.com, some former Soviet-empire states are leading the charge. They reference Slovakia, where state media outlet RTVS reports (by Google translate):

In connection with the Russian military invasion of Ukraine, the police warn that in some cases, imprisonment for 10 to 25 years to life may be threatened for the promotion of the war. The National Criminal Agency (NAKA) will adequately address the search for such crime on the Internet.

They also link to pardrosibu.lv, a Latvian publication (by Google translation):

There are at least 4 articles in the Latvian criminal law that prohibit supporting and justifying Russian aggression in Ukraine. … As sworn lawyer Arturs Zvejsalnieks explains: “Saying such things as ‘Occupy and destroy Kyiv, turn it into dust’, as well as messages from Russian propaganda channels that ‘All Ukrainians are fascists’, calls to kill Ukrainians or people of other nationalities are statements about which these articles may be applied.”

The third link in the multipolarista.com story leads to the Ukrainian embassy in Prague, by way of the Kyiv Independent. The embassy explains (by Google translation):

Czech law enforcement warns that public approval of Russia’s invasion of Ukraine could be classified as a “crime of denial, questioning, approval and justification of GENOCIDE.” There are already the first two cases of detainees incriminated under this paragraph of the Criminal Code.

The war in Ukraine is one of the great tragedies thus far in this century. Russia deserves all the global condemnation and sanctions coming their way. At the same time, if a state of war can merit the silencing of those who disagree with government, or even those who want to add another view to the public discourse, without any prejudice—then what other circumstances can be used as a pretext to silence dissent? Does a pandemic rise to the same level as war?

These questions are pertinent, especially since the Czech Republic, Latvia, and Slovakia are not at war. The war in Ukraine is relevant to them in the same sense as a pandemic is relevant: both are serious events profoundly affecting a nation in peacetime. But they are not at war.

The origin of individual rights

Any question about the status of free speech inevitably boils down to the question of where we get our individual rights from, including free speech. Are they provided to us by government, or is government simply a protector of rights that we have by virtue of being humans?

The difference is fundamental; consider these famous words in the United States Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

In other words, every human being is born with these rights. It is the role of government not to provide, but to protect these rights.

It is no coincidence that freedom of speech is guaranteed in the first amendment to the U.S. Constitution. Its authors considered the unabridged right to express one’s opinion to be a cornerstone of a free society. 

The U.S. Supreme Court fiercely protects this right, as exemplified by a case from 2017 where the Court invalidated an effort by Congress to statutorily limit the freedom of speech. The case considered speech that some considered offensive. In their verdict, the Court explained:

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

In a separate note, Justice Anthony Kennedy added:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. 

The protection of offensive speech is an excellent test case for just how adamantly we are willing to defend the freedom of expression. Since some people claim to be harmed by offensive speech, it parallels the free exercise of speech in times of war when free speech could be said to harm the war effort.

A theory within jurisprudence, free-speech consequentialism, focuses on precisely this point. In a recent, representative contribution to this theory, law professor Erica Goldberg of the University of Dayton (“Free Speech Consequentialism,” Columbia Law Review, April 2016) tries to explain how courts could ban certain speech based on an assessment of the purported harm it does. When the harm exceeds the benefits of free speech, the speech should be restricted. 

A free-speech matrix

Any analysis of speech ultimately breaks down to logic, which distinguishes between positive and normative statements. The former are statements with truth value—they are either true or false—while the latter are statements of an emotional character. The matrix in Figure 1 below applies this distinction with two separate columns.

Before we proceed, it is worth noting the objectivist literature claiming that normative statements have truth value. For reasons to be argued at another time, applying objectivism here would add more complexity than explanatory power. Therefore, with a note of respect for it, I shall exclude moral objectivism here.

Figure 1 distinguishes between two contexts of speech: military, i.e., wartime, and civilian. To put our desire to protect free speech to its utmost test, let us now throw in four controversial statements:

Starting in the north-west corner, the statement “there is a military unit in this location” is positive in the sense that it can be proven to be either true or false. If true, the harm from it is easily identifiable: if our country is at war and the enemy learns of the location of our military units, it may help them win.

Are the consequences of this statement grave enough to motivate its ban? 

In search of speech harm

The answer to this question is better understood in the context of the other three statements. Moving to the south-west corner, we have another positive statement, i.e., one that purports to convey facts. It is, again, verifiable or falsifiable, but it has no moral content. 

What is the harm done by this statement? This is the question that free-speech consequentialists are trying to answer. Before we get to the harm part of the question, let us first note that the call to ban positive statements because of their alleged harm, inevitably will target true statements. While the statement “Asians are smarter than Africans” is false, banning it for reasons of alleged harm is a carte blanche to ban other positive statements. 

Just as offensive statements can be proven false, they can also be proven true. There was a time when saying ‘The Earth revolves around the sun’ was considered offensive and harmful. In either case, facts and pursuit of the truth must be the final arbiter. 

In the normative column we have two statements that cannot be proven either true or false. One expresses the moral sentiment that war is immoral; the other that universal suffrage is immoral. 

The search for speech-inflicted harm conveniently begins with normative statements. Moral opposition to a war could be said to harm the morale of the people in terms of supporting the nation’s armed forces. It could also undermine recruitment of military personnel. If so, the end result could be that the country loses the war.

There is no doubt that losing a war is incredibly harmful to a nation and its people. However—and I realize that this is a controversial question—is the preservation of national independence reason enough to restrict free speech? 

If the answer is affirmative, government is granted jurisdiction over both free speech and of what we are allowed to mean by ‘national security’, in both theory and practice. In line with Justice Kennedy’s note as quoted earlier, we may want to think twice before granting government such powers.

To counter Justice Kennedy’s point, if losing a war means that we lose our freedom of speech, then the exercise thereof in wartime, with explicit reference to the war effort, might motivate speech restrictions.

But what about the civilian statements? 

Speech wants to be free

A statement in moral opposition to universal suffrage will rightfully draw universal ire. 

However, if we begin to ban normative statements because everyone except the speaker considers them to be immoral, then where do we end up? What if two people share in moral opposition to universal suffrage? What if half the population does? 

Any attempt to assess speech-inflicted harm runs into an insoluble measurement problem. Suppose I say that women ought not to be allowed to vote, and Erica Goldberg—the aforementioned legal scholar and free-speech consequentialist—claimed that the statement harmed her. I, on the other hand, claim that my freedom of speech has vast benefits. 

Since Ms. Goldberg wants my speech banned with reference to her alleged harm, a court is asked to independently rule in favor of one of us. To do so, though, it needs to be able to independently identify the harm Ms. Goldberg claims to have suffered. That harm, while real to her, is an emotion inherent to her mind. How is the court to measure it?

If person A punches person B on the nose, the broken nose and the bleeding are independently verifiable injuries. In the case of speech-inflicted harm, no independent yardstick exists. Inevitably, Ms. Goldberg would herself be the judge of the severity of the harm; she would be both judge and party to the case.

As libertarian philosopher Robert Nozick put it (Anarchy, State and Utopia, ch.2), whenever people can “judge in their own case” they are going to “overestimate the amount of harm or damage they have suffered.” Passion, he explains, “will lead them to attempt to punish others more than proportionately and to exact excessive compensation.”

The only way to avoid over-exaction of punishment, is to sever the ties between “harm” and “harmed.” This is impossible, and not only with reference to normative statements. Any harm claimed from the statement “Asians are smarter than Africans” is as difficult to identify as in the normative case. In other words, even if we were to try, the consequentialist argument for restricting free speech breaks down to a purely academic exercise.

Once free speech can be restricted based on alleged harm, whoever holds the consequential yardstick will have the power to tilt permissions and bans on speech in whatever biased direction he or she prefers. As explained by the U.S. Supreme Court, advocates of such government power may soon find themselves at its receiving end. 

Defending free speech is no simple matter. It requires unrelenting, selfless commitment. Only the threat of loss of freedom itself, by means of a lost war, might constitute sufficient reason for its restriction. In peacetime, though, no such threat exists. Therefore, no viable arguments exist in favor of speech restrictions. 

Speech, like information, wants to be free.