December 2009
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What is Free Speech?

by Jonathan Wallace jw@bway.net

The following is an introduction to a book I am writing. I will publish each chapter here as I complete it.

 

            When I was twelve years old, I first noticed that grown-ups, insecure, defensive and needing to assert their authority, frequently had no idea what they were talking about. I have often remembered this lesson since and applied it in a variety of circumstances. It is a worthwhile experiment, in the middle of a three day symposium, a forty five page court opinion, or the Declaration of Independence, to interrogate the speaker or writer (in reality or as a thought experiment) to try to determine if they understand what they are saying. Most frequently, we assume complex speech has a meaning even if we don't get it;   we rarely consider the possibility that a speaker is communicating in gibberish, though this would seem to be an integral part of the inquiry.

 

            In fact, a surprising amount of speech is pure contentless blather, including some very dense academic speech. Some people (I have no opinion) think the philosophical writing of Martin Heidegger has about as much meaning as a blue jay: The latter's call means only “blue jay here” and any intricate paragraph of Heidegger may mean only “Heidegger here”. I recently read Martin Buber's “I and Thou”, and came away with the same impression, that it didn't mean anything, though it may have been badly translated.

 

            A related discovery is that words, which supposedly are units of communication, often serve the opposite purpose, as stop-signs which end communication. Like a father saying “Because” to stop a child's query, we frequently use words and phrases to communicate such paradoxical concepts as “I win” or “shut up”. “God” is frequently a shut up word. References to “self evident natural rights”, in the Declaration of Independence or a dorm room argument about guns, mean little more than “I declare victory”. The speaker has hung a hook from the blue sky and is happily swinging on it.

 

            I often noticed, when reading lengthy free speech rulings by the Supreme Court and other federal courts, that the underlying terms are not defined. Instead, the assumption is made that we all understand what we are talking about. After a lengthy history of prior First Amendment jurisprudence, an educated guess is made, often with the help of a metaphor, as to which previously decided situation the current dispute most resembles. All of this is reasonable enough, but doesn't get us any closer to understanding what free speech is.

 

            So I went to the professors and their treatises, and discovered the very same problem. There is a lot of focus on the genesis of the law, and what accords and conflicts with it, ending in proposals, some reasonable and some very much not, for extensions or elucidations of the rules. But there is little discussion of the subject matter we are adjudicating. I don't mean that the writers don't get specific; we always know if the cause of contention is porn, a TV show, or a political pamphlet. But we don't know exactly what makes it speech, or what speech is “free” as opposed to “unfree” at a high definitional level. It is as if we were reading cases and essays about the sale of corn, without ever knowing exactly what corn is.

 

            What we end up with, as a result, is a patchwork: we can recite fifty or five hundred rules, along the lines of “Its OK to distribute pamphlets anonymously, but not to tell someone you're going to punch him in the nose”. But we can't boil it down to one simple paragraph, which we should be able to do if it were a truly limpid subject matter. Contrast any free speech decision with almost any decision under the Uniform Commercial Code, which tend to be simple, logical and clear. The contract said freight on  board: buyer's risk. It said cost, insurance, freight: seller's risk. The reason is that the Uniform Commercial Code is based on centuries of practical arrangements made by businessmen, to ensure that they could sell and ship things to one another. But free speech jurisprudence is made by lawyers, who are as often interested in explaining problems away or reverse engineering a result, as they are in simplicity and truth.

 

            This book is an attempt to treat freedom of speech as if it were the Uniform Commercial Code. That statute mostly did not create law, but codified custom. Similarly, the First Amendment is nothing more than the U.S. foundation of a set of rules codifying the customs of free speech.

 

            The following book is therefore a historical-sociological-logical inquiry, which will largely disregard the specific jurisprudence except as it gives evidence as to the underlying customs, the way a fossil shell gives us some idea of the vanished organism. I am more interested in questions like, in what human culture, and under what conditions, did the idea first arise that saying whatever was on your mind was a good thing? Who followed with the proposition that it was such a good thing, it ought to be embodied in law? What does the Bible say about it, Sumerian or Greek mythology, the discourses of Athenian lawyers? Who first coined a word for it? Who was the first to erect a philosophical or theological structure to support it? Under what circumstances could free speech thrive without being reflected in law? Has it ever flowered in otherwise tyrannical surroundings?

 

            There are a few more things to be said at a meta-level, before I embark on a chapter by chapter chronological hunt for the idea of free speech. The first, and most important, is that there is no such thing as free speech. The words “free speech” are actually a shorthand for “freedom of speech”. These two concepts are radically different but are often confused with one another. The moment we start evaluating the speech itself, looking for qualities of “freeness” or “unfreeness”, we are on a very false and, from a policy standpoint, a dangerous road. Some of the most important First Amendment decisions extend protection to quite unfree speech: “I want to be Stalin's slave. I want to be a dominatrix's sex slave.” What we are looking for is not a quality of the speech itself, but a rule-set that surrounds it, that governs the circumstances under which it may be uttered, and the consequences.

 

            I only titled this book “The Idea of Free Speech” because that is shorter, punchier and (I hope) may  sell more copies than “The Idea of Freedom of Speech”.

 

            Another important thought, which I won't spend any more time defending because that would be a different book: I don't believe in “self evident” or “natural” law. When suns are born or implode, neutrinos and quarks engage in behavior, dark matter does what ever it does, and time arcs, nothing that these objects or constructs do has any bearing on freedom of speech, not even as a metaphor. Free speech is not engraved in the walls of the universe, but is a set of conventions which humans decided to adopt because it served some purpose. If you believe in natural law, then a hunt for free speech rules in the Old Testament or St. Augustine may not be very interesting. Put this book down now, or read it for its anecdotal value.

 

            I would like to underline an idea which I proposed above: freedom of speech can exist even in the absence of any rules whatever codifying it or protecting the speakers. In a monarchy or dictatorship, the prince, despite his power of life or death over his subjects, may be secure, compassionate and merry, and quite tolerant. He may even like to be teased. Or he may follow Machiavelli, and know that you should always have people (but not too many)  around you who tell you the truth, so you are not completely lost. I was very impressed years ago by someone with first hand knowledge who related that the men around Muammar Qhadafy look happy, while those who worked for Saddam Hussein looked terrified. The latter expected to be killed at any moment, and usually were. The former knew that they were well liked by their boss, and were safe. Yet both men were murderous dictators.

 

            So we will look for instances in which people felt quite free advising an autarch, or complaining to him, or about him. Then we'll ask why in some societies, and not others, the people went one step further, and put laws in place to protect the outspoken. Alexander was very tolerant of argument and teasing, until one day in irritation and tiredness, he picked up a spear and ran his best friend through. He was very remorseful, but his friend was still dead.

 

            Another premise of this book is that speech is universal and ubiquitous. We have a tendency to section things off in a corner, like my intelligent, Harvard-educated friend who said she didn't care much about the environment, apparently unaware she lived in it. Free speech is not merely something which happens, and get litigated, in Ohio. If you read the local police news for any large city—anywhere, for that matter—you will soon discover that a large number of the murders described were in response to speech. Someone said something someone else didn't like, and died for it. Even Mafia hits often result from speech. Speech is a life and death matter.

 

            A related thought is that free speech laws for the most part protect us against government interference with us, not from punishment by our neighbors. For that protection, we must rely on cultural norms of friendship and tolerance. Yet it is a very common dilemma,   that the very speech which the law will protect—to keep us out of jail—does not necessarily keep us from losing a spouse, our friends, the love of our neighbors, a loan, or a job. In a perfect world, the law would extend the cultural norm of tolerance; often the opposite is true: the law is tolerant when society is not.

 

            In examining the social ferment in which free speech norms are generated, we will often find surprising contradictions. The people most in need of the protection of the laws are sometimes those who are least committed to liberty.  Believers in dictatorship of the proletariat and supporters of regimes where freedom of speech is unknown bring test cases under U.S. laws,  but don't necessarily envision the continuing protection of freedoms if they ever were to prevail politically. In the early years of the American republic, the foremost defenders of freedom of speech were Thomas Jefferson and the Republican party, who were busy distributing lies and libels via captive journalists. The Federalists, led by president John Adams, a man of great integrity and incapable of lying, promulgated the notorious, censorious Alien and Sedition Acts, under which one writer was imprisoned for mentioning that President Adams had a large rear end.

 

            Finally, I stand by the thesis that powerful ideas (powerful either because truthful or because they are logical, compelling proposals) can by their nature be communicated in clear, simple language. For example, here are three of the most exciting ideas I know: Jane Jacobs believed that neighborhoods thrive when they contain diverse groups and uses, and fail when they are dedicated to a single group or use. Ernst Renan said that nations are based on what their people remember, and forget, together. Immanuel Kant said that before we take an action, we should consider the consequences which would ensue if everyone did the same thing. In none of these cases did the speakers need to resort to words like “hermeneutics” or “deconstruction”, and their ideas are made more exciting and compelling, as well as more accessible, by the fact they can be communicated in simple language. 

 

            My goal, therefore, is to keep this book as simple as I can. If I fail anywhere, I hope you will write to me at jw@bway.net and let me know.  A reviewer who otherwise approved of a  book I co-authored on Internet censorship in 1996, complained that it failed to include a sophisticated theory of free speech. I was hurt by this at the time; thirteen years later, I take it as a compliment.