Free speech is a meta-meme, a collection of ideas about the management of ideas. It sets up an official level of analysis quite distinct from the personal where speech is concerned. Just as people may be tall, short, thin, fat, rich, poor, good or bad, but are officially all "created equal" from the viewpoint of democracy, all ideas are similarly considered the same.
Here, as in the last essay, we detect a gap between the rule-book and the way the game is played. On the field, we are determinedly judgmental, constantly pointing out and loudly criticizing, bad people and bad ideas. But, should we don the robe of the judge or the mantle of the legislator, the rule-book now requests us to suspend judgment and not to apply laws or write new ones censoring speech.
The theory is that, even as judges or legislators, we are not God-like enough to decide which speech to ban. Our opinions, strong as they are, are too deeply planted in our guts, yet not scientific enough to be translated into laws. The proof is that we cannot all agree on what to ban anyway. In a "pluralistic world of small communicators" (Ithiel de Sola Pool's phrase) each of us has his own personal speech demon and would ban speech about inequality, socialism, Darwinism, creationism, or whatever. In fact, even when most of us agree that a particular thing, such as pornography, is bad, we still cannot agree what it is. The silliest word ever uttered by a Supreme Court justice was Potter Stewart's immortal acknowledgement that he could not define pornography, but "I know it when I see it." The genius of free speech is the resolution that, for our own benefit, we must let words fight words, instead of fighting them with laws.
John Milton and John Stuart Mill both eloquently said that even bad ideas are good for us, because they help illuminate the good. And no-one has expressed this more cockily, or courageously, than Holmes did in his dissent in Gitlow v. U.S.:
If in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.I call this cocky because, reading between the lines, one detects an arrogant confidence that bad speech can never triumph. At the same time, it is courageous because Holmes, picking out the speech most commonly considered evil and inimical to American democracy, acknowledges the full neutrality of the rulebook and says that if Communism can win fairly, then it deserves to win and must not be disturbed. The First Amendment is the Marquess of Queensbury rules applied to speech.
A few years later, historian Charles Beard wrote that the technology of mass communications, carrying free speech to the four corners of the world, had irrevocably changed the moral topography of the world so that "mass ignorance" will be dissipated for all time:
Censorships and tyranny may delay the process here and there, now and then, but the disintegration of mass ignorance will proceed apace. So it becomes inconceivable that a basis of mass ignorance can ever be laid again, such as existed for the slave-owning aristocracies of Rome or the clerico-feudal regime of the Middle Ages.
Beard, apparently a very great optimist, was writing thirteen years after the Russian Revolution and only two years prior to the democratic election of Hitler in Germany. In every generation, there are powerful forces at work laying a "basis of mass ignorance." They are at work in the United States Congress today, as it writes a 19th century indecency law to govern speech on the Net, and palpable also in the shadows where the powerful Christian Coalition whispers in the Congress' ear.
To believe in free speech, to write the rulebook as the Founders did or to play by it as has been delegated to us, you must also be an optimist, believing that on the battlefield of ideas, the good speech will always triumph. If you go out on the street and ask the people you encounter, however, you will find that no-one believes this. Free speech is not popular in this country. Most people who hate a particular form of speech--and almost everyone hates some speech-- slip very easily into a desire that the government intervene to crush what they hate. Even the conservatives who are insufferably forever quoting the adage that "That government is best which governs least," only mean that the government should not interfere in business, for they are also the first to wish the government to pass a flag-burning amendment or to censor the Net. To most people, free speech means the complete protection of the ideas which they themselves find sympathetic, with complete license to government to suppress those they do not.
Artists have discovered the impressionistic craft of making a host of imperfections look like a beautiful entirety viewed from a distance. If we believe that the good speech always triumphs, it is only because we are looking at the canvas from afar. Because history is written by the victors, we do not always know of the speech that died, or have any basis to compare it to the speech that trampled on it. In many cases we may confound the fact of its death with the inferiority of its status. This, of course, is a philosophy of might making right, and reverses the valences: instead of something surviving because it is good, it is good because it survived.
Of course, the picture looks a little different when you take a longer view, that truth transcends many lifetimes and the tree of liberty may be watered, as Jefferson said, by the blood of patriots. Those who died in 1918 or after calling for a democratic alternative to Communism may be vindicated today. Those who died for the idea of German democracy in 1933 and after were vindicated when the tyrant fell a mere 12 years later. It is in fact hard to kill an idea for ever. But the triumph of an idea is pyrrhic when it is rooted in the blood of millions. The rulebook envisions a bloodless contest. The death of even one person because of an idea represents a terrible human failure.
In this country, which prides itself on being the most democratic on earth, a bloody price is still paid every day for the utterance of unaccepted ideas. John Milton cried out against Britons being forced to take their ideas down "the pipe of a licenser", but we do that every day here and believe that we are free. It is not only censorship we endure, but sleep. The spectrum of available ideas is far greater than those we suffer to be told. It is not a prison if you never try the door.
Many a bullet is still fired in this country to stop an idea-- not just the bullets that hit the two Kennedys, Dr. King or the four young people at Kent State. Timothy McVeigh forgot he was killing people; his intention was to explode an idea. The police who beat Rodney King were beating the idea of a black man, but the blows landed on real flesh. Mumia Abu-Jamal is on death row because of the idea he represents. If he were there because he killed a policeman, ballistic tests and unperjured police testimony would prove it. These things are not necessary or even convenient when the aim is the judicial murder of an idea.
On the eve of the twenty-first century, free speech in this country is in danger. Not only do the majority of the population not desire it, but our leaders, who have so much benefited from it themselves, don't seem to understand it. Newt Gingrich's To Renew America, which longs for the age of Jefferson and De Tocqueville, does so because those were times of commerce without unions or government regulations. I looked through the book in vain for an elogy of speech, even in the chapter on the Internet. The indecency legislation about to pass Congress will again prove that the bad speech wins, for now, that people will have to face prosecutors and persuade judges and possibly give up their freedom before we will again have liberty of speech on the Net.
Anthropologist Lionel Tiger said in his book Optimism: The Biology of Hope, "Neither the consciousness of mortality nor a cold sense of human frailty depresses the belief in desirable futures." Evolutionary biologist Robert Trivers adds that humans "readily create entire belief systems with self-serving biases, and the more skillfully these self-serving components are hidden from both the self and others, the more difficult it will be to counter them."
Free speech is a self-deception. We believe we have much more of it than we do. My high school was a microcosm of the nation: student elections were held to teach us democracy, but we learned the real lesson when candidates were disciplined for advancing unacceptable ideas. The dean of boys surely never stopped to think that he was punishing speech. In order to attack speech in this country, we first call it action, or degrade it some other way.
The triumph of the good speech is a self-deception. Good ideas sometimes lose, and sometimes an inhumanly high price is paid for victory. Gandhi said, "We must be the change we wish to see in the world," and paid the price for it, but most others do not do so willingly. When Jefferson spoke of the tree of liberty being watered with the blood of patriots, he might not have spoken so complacently if he meant his own and not the blood of other patriots.
Now that I've depressed you, I'll acknowledge that self deception in the defense of speech is not a vice when it keeps us going. "If Merlin had seen what you have seen," the Druid told Jurgen, "Merlin would have died, and Merlin would have died without regret, because Merlin receives facts reasonably." Trivers and Tiger both point out that self-deception is an evolutionarily successful strategy, in that it helps us survive in a dangerous and chaotic world where a more reasonable man might not. Given a choice of paths, I would rather live as if free speech existed, as if the good speech will always triumph.
As humans, we are used to making leaps of faith, when we take a job, vote, marry, or pray to God. Believing in the triumph of ideas is a leap of faith. If we believe that good speech can be beaten down and killed, we have nothing left. The liberty of speech is the predecessor and guardian of all other liberties. If it is vulnerable, if the world is skewed against it as in the film noir where the villain's bullet hits at a thousand paces but he cannot be killed with a shot fired point blank, then we are hopeless. If we put aside faith for a moment and look with cold eyes, we will see systems where the rule book leads to suicide, as in the election of Hitler.
But there is a practical component here too, as there always is in an evolutionarily successful strategy. A belief in the triumph of ideas succeeds because, even when it is a self-deception, it is better than the alternative. Repealing the rule book to avoid suicide is nothing but killing yourself now to avoid the chance of death later. When you pluck out free speech, all other freedoms are lost with it. To defend against the enemy, you become the enemy, and there is nothing left to defend.
The danger occurs at the moment when the self-deception stops promoting the reality and becomes a substitute for it. Lost in a dream, we may not know we have crossed the line. "Soon enough," said Yeats, "the dream itself had all my thought and love, and not the thing it was an emblem of." But perhaps we are not there yet. Humans always dream of a thing first, then make the universe manifest it, through the force of their desire. Free speech, like morality, is a beautiful meme. We long for beauty. I am with Holmes and in favor of the beautiful rule-book, whether or not it is real. We can make it real.