Free Speech

The issues surrounding the doctrine of free speech are long standing even if the current debate, as it involves what to do with the Internet, and how foreign powers tried to influence the American election in 2016, raises some new wrinkles. Both Plato and, for most of its history, the Catholic Church, favored the view that the right of free speech was limited in that ignorance or untruth did not have the same standing as truth and could lead people into error. It was therefore necessary for authorities to limit what people could be exposed to. The Catholic Board of National Review gives its imprimatur to wholesome films that are tastefully done even if they deal with difficult material. That, I suppose, is about as good as censorship can get. Morning Joe supports this view because he believes that Alex Jones’ view that the Sandy Hill shootings were staged is too unbelievable to warrant public attention. By those lights, however, Donald Trump would have been barred from having his views on the airwaves because he furthered the Birther controversy which was also just ridiculous. That would have been a serious infringement on the right of voters to select any primary candidate they care to.  On the other side are the Founding Fathers, and various liberal theorists such as John Stuart Mill, who hold free speech as itself of the highest priority in that any limitations on it, short of libel, are likely to interfere in the political process and, even more important, in the feeling of individual liberty, which is always thwarted by the values of the community. So free speech is an unending battle between the forces backing freedom of conscience and those siding with tradition. How do these perennial doctrines fare in the present communications environment?

Rapidly developing events show just how contentious the doctrine of free speech is. It is far from being a settled matter, as if it ever were that. Two contrasting articles, both appearing yesterday on the opinion page of the New York Times, show this to be the case. Om the one hand, there is an article by a former poetry editor at the Nation magazine which decries the apology by the current poetry editor for having even published a poem that turned out to offend some readers. So, while the former editor would have the magazine stick by its editorial judgment, letting the poem speak for itself, and reserving to the poem the right to offend some readers, the new poetry editor has to apologize for the poem and her own now clearly mistaken judgment in having published it in the first place. Self criticism is the only stance a person can take in the face of political correctness. I done wrong and won’t do it again and I rue the day I fell from grace.  On the other hand, on the same opinion page, there is an article saying that it is about time that Facebook and other social media are getting rid of the rabid hatemongers who pollute the social media. These are necessary steps to take to protect our elections as well as truly free discourse.

What do these cases have in common and what distinguishes them? The argument that Facebook is correct to censor what it puts out there rests on the idea that rational speech is protected while appeals to hatred and other emotional forms of speech are not. The same is true of the Nation poem. You cannot offend the emotions of your readers by exposing them to what might shock them. But free speech advocates have not until recently claimed that such a distinction between rational and emotional speech is possible. People get hot headed when they express their political opinions and are not to be censored for that. Moreover, who is to determine what arguments are rational and which are largely or purely emotional? That depends on the ideas that are in power. Germany today bars directly pro-Hitler speech as incendiary, but they have what seems recent if seventy year old history to reckon with, while Americans have everything from Father Coughlin to KKK inspired speech to deal with and have not found it necessary to go beyond making a legal distinction between speech directed at prompting violent action and speech with no such immediate intent. That is enough to justify the state intervening in what might become a lynching while allowing people to be as foulmouthed as they like about racial groups. But, then again, that looks back to a situation before we had a President who seems to want to foment violence and hatred. Are there no limits to his free speech, and if the President can say it, why can’t an ordinary citizen say the same racist things?

Another way to draw the distinction between what can and what cannot be said is to tie it to the means by which the free speech is expressed. The thing about a free press is that there is someone to be held accountable: the publisher who owns the presses. What comes out in his newspaper has to meet his standards, not just the standards of editors or reporters or even of the public. A byline is a license to print offered by the publisher. Now, until recently, it was fairly cheap to buy yourself a printing press and it was difficult to deny ownership, and so there were either contending points of view, different papers supporting different candidates and each having their own slants on the news.

By the 1950’s there were newspapers (and television stations) which considered themselves above the fray and to provide “objective” news. That was partly because cities could not support that many newspapers because of the competition of television and because printing newspapers was becoming more expensive so that newspapers of record had to aim at larger swaths of the reading public. Television was also obliged to take on the objective model so as to satisfy the requirements of the Federal Communications Commission, which at that point objected to any form of editorializing by stations. Moreover, there were, after all, only three television networks to choose from and so there were some obligations that these lords of the airways had to take on.

All that has changed. Cable television arrived, which meant there were innumerable channels and different outlets pursued different editorial policies, Fox News going Conservative, MSNBC going Liberal and CNN, which had been best known for its disaster coverage, at first trying to appeal to the Trump audience, and then giving that up. And then came the social media, originally designed to be a way for friends to keep in touch and then becoming a platform for disseminating viewpoints.

But social media make it difficult to identify ownership and so accountability. Mark Zuckerberg sees himself as the owner of a technology company that provides the means whereby other people can communicate their thoughts. He is a transmitter rather than the creator of material. And so it is reasonable for him to cut off from circulation only those sources that are not identified. He can eliminate Russian based sites from his apparatus for transmitting viewpoints. But what of cutting off American grown loonies like Alex Jones, who is perfectly willing to own up to what he peddles?

By eliminating those sites, Zuckerberg is acting as a publisher and so no longer just as a tech company, and that is perhaps fair and proper in that the social media have evolved into a way for people to communicate their views to the public and so a publisher’s role has to be established and Mark Zuckerberg has become that whether he likes it or not. Social media are therefore no longer neutral. But if that is the case, then what is to bar Mark Zuckerberg from, for example, finding a way to feature columnists who share his point of view, or for his media platform to find a way to endorse one or another Presidential candidate? I don’t know the answer to those questions other than that a respectable Congress, one interested in legislating, would hold extensive hearings on just what media companies can and cannot do and create a division of the FCC to look after these continuing evolving issues.

The underlying premise of free speech advocates is that good speech will drive out bad speech. This has been expressed in numerous ways. “Sunshine is the best disinfectant”, Justice Brandeis said. That other expert on public opinion, P. T. Barnum, put it this way: “You can fool some of the people some of the time but not all of the people all of the time.” The trouble with that last adage is that for the duration of an election cycle you only have to fool a bare majority of the people (and given the Electoral College, not even that) for a brief period of time to produce awful results. But in that case, in the view of the Founding Fathers, you just have to wait for the next election cycle. The system is strong enough to outlast even a vastly incapable leader. What is happening at the moment is that people are doubting the resilience of the system while the politically correct people and the Trump supporters do not care about free speech at all but only about their own points of view. Uncertain advocates of free speech think that, for a while at least, bad speech will drown out good speech, and that will spell disaster for the Republic. I am not yet of that mind.