The Hunter Biden story has refueled the debate over free speech or free press, whichever you think applies to Internet postings. Seeing no useful distinction, but being a former journalist, the notion of a free press has a special appeal to me. Besides, I think the Internet is more analogous to giving everyone their own printing press than to allowing the whole world to participate in a town hall meeting. Whichever the case, the issue is whether anyone, be it a government agency or a privately owned company, should be allowed to silence anyone whose views they find unacceptable.
We are often reminded of Oliver Wendell Holmes’s observation that “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” But on its face, that just isn’t true. The First Amendment says, “Congress shall make no law . . . abridging the freedom of speech, or of the press.” No exceptions are granted. And if you allow no exceptions, you can’t get more stringent than “no law.”
Holmes’s argument was that it makes no sense to allow no exceptions. “The question in every case,” he said, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Right, but that is just a reminder that governments exist to protect many rights, not just one, and there are times when it is not possible to protect all of them at once. Your right to life means the government can make it illegal for me to kill you—except when you are trying to kill me, in which case my right to life makes it OK for me to kill you in self-defense. The question of whether my life is more valuable than yours is irrelevant. The question is whether I am obliged to let you—the one who chose to imperil me—make the final decision.
Many things posted on the Web can deprive people of their lives, liberties, or pursuit of happiness. This is not a hypothetical threat. It has already happened, and it is essentially certain to happen again. No reasonable person can say it should not be prevented. What reasonable people can disagree about is how it should be prevented.
This is not to say we should feel free to ignore the First Amendment or to grant that it can mean whatever we want it to mean. The founders probably did not mean “no law” literally. But then, if they intended there to be exceptions, why didn’t they specify at least one? Because any specified exception would be either too specific to cover all relevant specifications, or else so vague as to apply to any situation where a tyrannical government could want an exception. In their minds, any violation would have to be in response to a threat so obvious and so immediate as to make “But it violates the Constitution” a clearly irrelevant objection. It would have to be a threat against the survival of the republic itself. After all, if the republic doesn’t survive, then its Constitution can’t protect anybody’s rights, and the republic can’t survive if its members don’t survive.
It seems that even John Stuart Mill would have agreed, as encyclopedia.com reminds us:
Mill did not advocate an unqualified freedom of expression. "[E]ven opinions lose their immunity," he says, "when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act." He offered an example to illustrate the limits of his principle: "An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard." (https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/mill-and-freedom-expression)
Fortunately, hardly anyone wants to empower the government to regulate the Internet more than it already does. Or at least, hardly anyone will say on the record that they think there should be an Internet exception to the First Amendment. What they will say, though, is that the First Amendment was never supposed to apply to private enterprises. Our founders did not want the government telling anyone who owned a printing press what he could or could not do with it. Thus we had freedom of the press. But I couldn’t exercise that freedom unless I owned a press. If I didn’t but had a book or essay I wanted to publish, then I had to find someone who did own a press and was willing to let me hire him to publish my stuff. If, for whatever reason, they were unwilling, then that was that. Whether their reason was good, bad, or just silly was beside the point.
Given the state of information technology in the late 18th century, this was the best the founders could have done. And as good as it was, it did not prevent Congress from passing the Sedition Act of 1798, which “criminalized making false statements that were critical of the federal government” (https://en.wikipedia.org/wiki/Alien_and_Sedition_Acts). Perhaps the act’s sponsors thought that such statements were in some way equivalent to shouting fire in a crowded theater, but the key term here is “false.” This law, in effect, empowered the government to (a) decide that some statement was false and then (b) punish whoever made the statement if it was critical of the government.
This Sedition Act expired in 1801. Congress passed another one in 1918, amending the Espionage Act of 1917, which made it illegal “to distribute flyers opposing the draft during World War I” (https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater). This was the law Justice Holmes was commenting on, and which, in his judgment, did not violate the First Amendment. Taking him at his word, he must have believed that distributing anti-draft literature during wartime created a threat to the survival of the republic. It seems pretty obvious to me that he was mistaken about that, and I am no pacifist. I agree with him that the law may do what it must, Constitution or no Constitution, to avert what he called a “clear and present danger.” I don’t agree that opposing the draft during a war constitutes such a danger.
But that was a call that somebody had to make, and it was his and the other justices’ job to make it. It is one reason we have a Supreme Court. This isn’t saying “The Supreme Court said so, therefore it is so.” It is saying that somebody has to have the final say about what the law means, until Congress changes the law to make its meaning clearer. It’s called separation of powers. If Congress refuses to do that, perhaps in order to improve its members chances of being reelected, then the courts will make the decisions that Congress ought to be making, in which case we might as well not even have a Constitution. That is a situation we seem to be fast approaching.
But I digress.
“No law” means, prima facie, no law. But as Mill explained at some length, there are social forces that can inhibit freedom of expression just as effectively as the law can. Those forces represent the collective will of us all, and Mill thought we should all, as a society, be as committed to freedom of speech and the press as the nation’s founders thought our government should be.
I find his arguments irrefutable, but of course many disagree. One dissident is Jason Stanley, author of How Fascism Works, from which the Boston Review published an excerpt two years ago under the headline “What John Stuart Mill Got Wrong about Freedom of Speech.” He leads with a rhetorical question: “Shouldn’t liberal democracy promote a full airing of all possibilities, even false and bizarre ones, because the truth will eventually prevail?” to which he makes it pretty clear that the answer is supposed to be no.
But the position I defend, and which I understand Mill to have been defending, is not about the fullness of any “airing of all possibilities.” It is about whether we may be justified in prohibiting any airing at all of certain ideas just because they seem false or bizarre. Stanley claims that Mill’s thesis relies on a “utopian assumption” “that conversation works by exchange of reasons: one party offers its reasons, which are then countered by the reasons of an opponent, until the truth ultimately emerges.” I'm not familiar enough with Mill's thinking to say how he would respond, but I make no assumptions of that sort. I infer from observation that people are capable of sound reasoning. I also infer from observation that they usually do not reason soundly, and so there can be no guarantee that the truth is destined ultimately to prevail. Mill’s primary argument was not that we must hear all viewpoints in order to find the truth, but that we cannot suppress any viewpoint without presupposing that we already have the truth, and that this presupposition cannot be defended without implicitly affirming our own infallibility.
Stanley then goes for a genetic fallacy:
Mill would surely then be pleased with the Russian television network RT, whose motto is “Question More.” If Mill is correct, RT, which features voices from across the broadest possible political spectrum, from neo-Nazis to far leftists, should be the paradigm source of knowledge production.
However, Mill never said or suggested that anybody who claims to care only about producing knowledge should be taken seriously. Would Stanley have us believe that because Fox News calls itself "fair and balanced," we should all strive to be like Fox News? We all surely do want to be fair and balanced, do we not? Just because bad people endorse an idea doesn’t mean it’s a bad idea. Evolutionary biology was never discredited by social Darwinism.
Stanley irrelevantly raises the issue of resource allocation: “Responsible media in a liberal democracy must . . . resist the temptation to report on every possible theory, no matter how fantastical, just because someone, somewhere, advances it.” Of course they must, and nobody is suggesting otherwise. Mill certainly never did. To say that every viewpoint must be allowed expression is not to say that every journalist must express every viewpoint.
Stanley then goes on at some length about the various methods employed by fascists to control the mass media. But Stanley seems to assume that only conservatives are tempted to employ fascist methods. It is precisely because we don’t want anybody using those methods that we try to keep the mass media as uncontrollable as possible. No faction, wherever it might lie on the political spectrum, should be empowered to decide what the mass media may or may not report.
Next: More on censorship
(This page last updated on February 22, 2021.)