February 16, 2012

Lies, Damned Lies, and Free Speech (Part 2)

So the Stolen Valor Act makes it a crime to lie about being awarded various military honors, including (in the case of Xavier Alvarez) the Congressional Medal of Honor. This strikes me as generally a bad idea – criminal punishment of speech which doesn’t really do any harm. But why? Why should I give any kind of shit whether a serial fabricator like Alvarez is convicted of a crime?

One of my regular blog reads is Dispatches from the Culture Wars. Ed Brayton is every bit the free speech hawk that I am. He spends a good deal of time discussing cases from around the world involving suppression of speech, some more serious than others. Some of Ed’s regular commenters, however, aren’t always on board with his outrage. Many of those folks tend to come from places in Europe or Canada that have a different conception of free speech and the impact speech has on the community.

A while back, some discussion over at Dispatches (I wish I could remember which one and provide a link – bad blogger, I know) about free speech made me start thinking that the Euros were making some good points. What struck me as I read the discussion was that I kept coming back to the same reason for thinking they were wrong – I don’t trust the government to sift the good speech from the bad. I think this was in the context of Holocaust denial, which is a crime in several places in Europe. Yes, I thought, Holocaust deniers are idiots (at best) and raving bigots (at worst), but do we really want the state stepping in and locking people like that up? I couldn’t come up with a good principled reason why not.

I mean, often times when we think of First Amendment issues we have images of Orwellian thought police (or the Zappa equivalent) and the horror of the state prying inside your mind. But speech is an outward act, of course, almost by definition. For it to have any meaning someone has to hear it. More to the point, for somebody to get pissed off about it, it must have an impact. Let’s face it – the state is all about making sure people don’t do certain harmful things to each other. Why should speech be off limits?

There’s a more utilitarian side to the argument, although I’m not sure I’d call it “principled.” That’s the argument that runs through neatly a century of First Amendment cases from the Supreme Court about the “marketplace of ideas.” The idea being that when the state stays out of things and everybody is free to chip in with ideas and arguments about ideas, the market will sort everything out. To go back to the Holocaust denier example, you could argue that such folks are regarded as buffoons and not worth of serious attention here in the United States, because their ideas have been so thoroughly debunked in the popular culture. By contrast, the very fact that their ideas are illegal in Europe lends them the credence of the outcast and put upon (i.e., “we must be on to something, look how desperate they are to suppress it!”).

But, again, why leave free speech to the whims of the market? We don’t do it with anything else. If anything, we’ve got mounting evidence that the market doesn’t do a good job of filtering out false or misleading speech. Just look at political campaigns and any news coverage having to do with them. Or lay discussions of Supreme Court decisions that show no solid grasp of what the case actually says.

So what else is there to support the hawkish position on free speech? Seems to me it comes down to a very practical concern – that even if we can identify speech that is harmful, we can’t trust the state to actually implement any scheme that would accurately punish wrongdoers. Whether it’s because the line between good speech and bad speech is so squishy to begin with or that unscrupulous enforcers will use their power to protect their friends and go after their enemies. After all, wouldn’t it be wonderful of politicians – those in power as well as those seeking it – could be punished for flat out bullshit? Probably, but do you trust a Democrat to fact-check a Republican or vice-versa? Even theoretically isolated bureaucrats would potentially have some axe to grind and an ability to wield it.

I think, in the end when it comes to brass tacks, that’s what it comes down to. I think a society could get together and pretty confidently identify speech that is so vile and harmful in and of itself that it should be banned (or otherwise heavily regulated). Where the real dispute comes in is whether the enforcement mechanism would be accurate enough to avoid the risk of squelching other speech that really poses no threat to anyone.

So, to circle back to the question I asked in the first post – is my general hawkishness on free speech issues something born of some bedrock principle? Or is it simply a practical recognition that any speech regulation regime is so fraught with enforcement issues that we should avoid such regulation if at all possible? I think it’s the latter.*

But that’s all right, because the end result in the real world is the same. Whether it’s because of some well rooted principle or simple practical expediency, I champion the cause of free speech. Just because I can hypothesize a perfect world where I might change my mind doesn’t mean I waver in the here and now. Which means I throw in on the side of Xavier Alvarez and his lies, not because I think he should spout them, but because I don’t trust the government not to come after me next.

* I should make perfectly clear that I am only talking about speech that causes some real harm. Harmless speech should always be protected.

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