in many ways this is actually worse than just flat-out state media, because at least state media is widely acknowledged as state media https://t.co/nBALlyPpCS— kilgore trout (@KT_So_It_Goes) March 4, 2019
The discussion of free speech between Sean Illing and Brian Leitner is interesting in an abstract sense; and frustrating in concreto. The question of controlling public speech is a question of law, not just of why (although it is also a legitimate question of public policy). The legal issues are rooted in common law, even if all 50 states have libel statutes (mostly they memorialize common law). That's why they are also issues of public policy, which is what the doctrine of race based legal analysis also rests in: it is not in the public interest to allow race to be a determining factor in most legal decisions, and it is not in the public interest to allow people to be slandered freely and indiscriminately. Libel law is a regulation on speech, especially when libel law defines libel per se. How well such regulations on speech work, is another matter. Whether restrictions on speech should be allowed at all is the subject Illing and Leitner think they are discussing; actually, they are dancing all around that topic, preferring their vague and glittering generalities, their shadows on the walls of Plato's cave, to anything substantive and present in the light of day.
Sean Illing
As I read your paper, I kept thinking about the media critic Walter Lippmann (whom I wrote about for Vox), who struggled with these same questions. He didn’t think most people could be trusted to decide intelligently what ought to be done, so he wanted technocrats and experts to act as mediators of sorts. But the problem is always, who are the arbiters of worthy speech in this imagined order? And how will we stop them from abusing their power?
Brian Leiter
Under the current circumstances, I think that’s exactly right. But I’ll also quote the German philosopher Herbert Marcuse, who, when asked, “Who will make these decisions,” said, “Who makes them now?” And that’s worth bearing in mind.
These decisions are, in fact, being made now. They just aren’t being made by bureaucrats. They’re being made by Rupert Murdoch, by editors behind the scenes, by producers on TV programs, who themselves are responsive to all kinds of interested parties.
Sean Illing
What’s the alternative? We either live in a free society, or we don’t. There does not seem to be much room for compromise here. I mean, there’s no marketplace of ideas that isn’t saturated with bad ideas, right?
Brian Leiter
I guess it’s a matter of degree. Again, I think the big problem now has to do with the pathologies of our political and economic system. Maybe what we need is for the political and economic system to change if we’re ever going to adopt a more sensible approach to the regulation of expression.
I also think most people fail to understand what’s meant by “free society.” No one thinks we don’t live in a free society because there are restrictions on public masturbation or public sex, right? There are always limits. We countenance all kinds of restrictions on freedom. It’s always about trade-offs, and what we’re ultimately willing to live with.
Nor do we think we are not free because we still can't say the seven words on TV that made George Carlin famous. Or show Janet Jackson's breast with a nipple guard over it during the Super Bowl. But Leiter is making a larger point, one that Illing (not surprisingly) can't answer, and so prefers to reject as illegitimate:
Brian LeiterMill's basis for defending free speech is to assume certain conditions, conditions akin to Plato's idea of the Republic: educated people should be in charge. Plato wanted to restrict who could be in charge to the properly educated, because he didn't trust (or probably conceive of) a public education system aimed at making us all well-informed citizens. Which, of course, American public education has failed to do since the founding of the Republic. So Mill is still playing in the fields of Plato, but imagining a slightly more democratic set of philosopher kings. The problem with free speech is that Mill is right: unregulated speech is not unlike an unregulated market; and who wants to abolish the FDA and go back to the meat packing days described by Upton Sinclair? Libel law arose in the common law precisely because unfettered speech was not an unalloyed social good; and precisely because even educated citizens can say really dumb, even harmful, things, viz:
My paper is about running through all the arguments people make in defense of this assumption and showing why they don’t hold up. I’ll start with the simplest one, which is this idea that a free marketplace of ideas is likely to help promote discovery of the truth. This is probably the most famous defense of free speech associated with the British philosopher John Stuart Mill.
But what people often don’t stop and notice is that even Mill thought certain background conditions had to be established for it to really be true that a marketplace of ideas would lead to the discovery of the truth. Mill said, “People have to be educated, and they have to be mature.” Those are pretty thin conditions, and you might worry that a lot more is required for a real marketplace of ideas to be conducive to the truth.
As I point out, we have an important institution in American society that aims to discover the truth, namely the court system. And the striking thing about the court system is that it completely rejects the marketplace of ideas view. It says, “It’s crazy to think we’ll discover the truth by just permitting people to express any view they want, make any claim they want.” In the court system, we impose massive restrictions on speech to facilitate the discovery of truth.
“My mother came from a sense of loving her children and being concerned,” the teen insisted, adding that those who spread misinformation online “instill fear into the public for their own gain selfishly, and do so knowing that their information is incorrect.”
That's from the testimony of a young man whose mother kept him from being vaccinated until he was old enough to decide the issue for himself; and until he was self-educated enough to make an informed decision. Bad speech may finally be driven out by good ideas, but damage can be done in the meantime. And in the context of absolute free speech, does the argument of Sen. Paul really make sense?
“It is wrong to say that there are no risks to vaccines,” Sen. Rand Paul (R-KY) said during the session, voicing opposition to mandatory shots. He later added, “I believe that the benefits of vaccines greatly outweigh the risks, but I still do not favor giving up on liberty for a false sense of security.”
Both of these examples, of course, are also examples of good speech driving away bad; except Paul's argument is that even 'good speech' is not absolute enough, and 'bad speech' is not absolutely bad, so we have to allow both to be considered at all times by all persons, an idea that isn't working out quite so well in parts of the country where measles and mumps are on the rise, and your liberty to be un-vaccinated can mean a mother's liberty to take her child out in public can be curtailed. Is it really wrong to say there are no risks to vaccines, especially considering the much greater risk to the public of those who refuse them (not to mention the risk to those of whom they have charge? Is it reasonable to allow parents to refuse vaccination for their children until they reach the age of majority? I know people who lost hearing because of measles before a vaccine was available, and several people crippled by the polio outbreak I was vaccinated against in childhood. They fell ill before the vaccine came long. Should children today be crippled or suffer injury because they parents are fools depending too much on the absolute free speech of the internet? (The young man in his testimony said his mother got all her ideas about vaccines from Facebook.) The internet, in fact, presents us with the power and the perils of absolute free speech because, while I can't say Carlin's seven deadly words on broadcast TV or radio, I can certainly post them freely on the internet. It is the one place governments cannot effectively regulate, even when the subject is as vile and pernicious as child pornography.
Which raises the other issue with "absolute free speech," although the base problem with child pornography is the abuse of children in order to present it to an audience. What of pornography more generally, though? Would Mr. Illing be happy with a situation where pornography was freely available to children? (It is on the internet, but schools and libraries can block it from being accessible on their computers, or at least attempt to. Does this violate the 1st Amendment?) I tend to think he would not. There are ideas we don't want young children exposed to without careful presentation. NPR ran a story the other morning about talking about death to young children, using the Sesame Street episode where the actor playing Mr. Hooper had died, so his character "died" on the show, as a model. We don't want children seeing pornography, or watching mangled corpses on the news (I watched the Vietnam War on TV in my childhood every night on the news, and all I remember are explosions and soldiers in the jungle. I could have been a John Wayne movie, with less gore and violence.). We agree as a society that certain "speech" should at least be controlled as to who can see it. So how absolutely "free" is "free speech" meant to be?
But Illing and Leiter are both wrong in thinking the courts are a poor choice for regulating speech because, as Illing puts it:
A courtroom and a political community are wildly different contexts, which even you acknowledge in the article. To take just one difference: A court’s job is to establish the facts so that jurists can decide accordingly. But politics is about values as much as facts. Is there any way for a community to decide how to live and what’s worth pursuing without allowing the free exchange of ideas?Actually, the duty of the jurist (the judge or a jury) is to first establish the facts of a case, and then apply the applicable law accordingly. All legal appeals are based, not on re-finding the facts, but on determining through legal argument what laws are appropriate to the circumstances. Take, for example the case of NYT v. Sullivan.
The problem of free speech absolutism is that no absolute works for the greater good without consequence; not even free speech. Free speech is better than restricted speech, but free speech is not the unalloyed good that works by being wholly free, any more than the "free market" works best when it is wholly unregulated (back to the question of free and open access to pornography). I am, in fact, a child of the '60's, so I'm probably in favor of more market regulation than my Millenial daughter (I know I am, from discussions we've had; my frame of reference is not post-Reagan, as her's is). Freedom is a fine thing, but it stops at the end of my nose, as the old adage has it. Even regulating speech is not the worst thing a democracy can do.
Until NYT v. Sullivan, that regulation was the province of courts and juries. But the facts of the Sullivan case bear some scrutiny. I'm going to quote the Court's opinion for those facts, as this is the basis for the Court's legal conclusions. It's long, but my excuse is that it's in a block quote, so you can skip down if you want to.
Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was
"Commissioner of Public Affairs, and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales."
He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. 273 Ala. 656, 144 So.2d 25.
Respondent's complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960. [Footnote 1] Entitled "Heed Their Rising Voices," the advertisement began by stating that,
"As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights."
It went on to charge that,
"in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . ."
Succeeding paragraphs purported to illustrate the "wave of terror" by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, "the struggle for the right to vote," and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery.
The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading "We in the south who are struggling daily for dignity and freedom warmly endorse this appeal," appeared the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The advertisement was signed at the bottom of the page by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South," and the officers of the Committee were listed.
Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel. They read as follows:
Third paragraph:
"In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission."
Sixth paragraph:
"Again and again, the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have
assaulted his person. They have arrested him seven times -- for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him with 'perjury' -- a felony under which they could imprison him for ten years. . . ."
Although neither of these statements mentions respondent by name, he contended that the word "police" in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of "ringing" the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission. [Footnote 2] As to the sixth paragraph, he contended that, since arrests are ordinarily made by the police, the statement "They have arrested [Dr. King] seven times" would be read as referring to him; he further contended that the "They" who did the arresting would be equated with the "They" who committed the other described acts and with the "Southern violators." Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King's protests with "intimidation and violence," bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner.
It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not "My Country, 'Tis of Thee." Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time "ring" the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four, and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault.
On the premise that the charges in the sixth paragraph could be read as referring to him, respondent was allowed to prove that he had not participated in the events described. Although Dr. King's home had, in fact, been bombed twice when his wife and child were there, both of these occasions antedated respondent's tenure as Commissioner, and the police were not only not implicated in the bombings, but had made every effort to apprehend those who were. Three of Dr. King's four arrests took place before respondent became Commissioner. Although Dr. King had, in fact, been indicted (he was subsequently acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent had nothing to do with procuring the indictment.
Without getting into the details of the legal argument, the Court recognized that the purpose of this suit was what we would today call a "SLAPP" suit; it was meant to silence criticism through legal means. There is a doctrine at law, not involved in this case but illustrative of the way courts look at these matters, that concerns public interests. The best way I can explain it is a Supreme Court ruling on racial covenants in deeds for real property. The case came before the court that a property was subject to a racial covenant barring it from being sold to African Americans. The Court had no statutory or Constitutional basis per se to disallow such covenants, but it considered racial animus a pernicious concept and one the courts, as a matter of public policy and public interest (my memory of this case dates back to law school, so I can't quote the exact language), would not enforce. Such covenants remain in some title chains; the Court disavowed the power to remove them. But courts will not enforce them, because the public interest is against such covenants. In one sense, the Court in Sullivan is invoking the same doctrine, as it noted:
Any other conclusion would discourage newspapers from carrying "editorial advertisements" of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities -- who wish to exercise their freedom of speech even though they are not members of the press.As to how "out of line" the Sullivan decision is (and as an interesting slap, from 55 years ago, at our current President), the Court notes a line of cases for the principle that:
But the Court was careful to note that it "retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel"; for "public men are, as it were, public property," and "discussion cannot be denied, and the right, as well as the duty, of criticism must not be stifled."Which sounds quite a bit like a defense of free speech as an absolute, but it's more reasonable to argue the Court is trying to preserve freedom of speech against those, like Sullivan, who would stifle it.
Go back to the recounting of facts in Sullivan, and find where the libel is so severe, the facts so egregiously misstated, that an award of damages is undeniable. It was a commonplace before Sullivan for southern state officials to sue for libel against civil rights workers and organizations and even newspapers, to keep the news being published in line with their preferences for what the truth was. Donald Trump claims all manner of lies against, him, from the crowd size at his inaugural to what he said about Otto Warmbier and Kim Jong Un. This is an example of what the Court agreed were erroneous statements in the advertisement Sullivan sued (and won) over:
It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not "My Country, 'Tis of Thee." Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester.
I think the Court is clearly not sympathetic to Sullivan's legal claims, because none of these errors can be described as material (and isn't it interesting that the "wave of terror" described in the advertisement, becomes a phrase associated with our "enemies" after 9/11. In which case is it opinion, and in which case is it fact?). But materiality did not bother the courts of Alabama, where they allowed these facts to be the basis for a libel per se claim (libel so profound no proof of actual damages is required. I.e., a libel damaging in itself, without proof the plaintiff suffered more than anger at the words used.). The distinction between the two kinds of libel is instructive here.
Libel is false and defamatory statements made against a living person (death cuts off a libel claim. You can't slander the dead.). To prevail in a court of law, you have to prove the statement was false and defamatory (truth is an absolute defense), and you have to prove actual damages. In a personal injury case you can present evidence that your intimate relationship with your spouse is damaged by your injury (say, for easy reference, paralysis below the waist), leading to damages for loss of consortium (the claim for such damages is often more inchoate than my example). You cannot recover damages in a libel action for similar inchoate, i.e., incalculable, injury. Damages in a libel claim must be actual damages. That is, to bring a libel suit, you have to show the statement was false and defamatory, and that it cost you calculable money. If your reputation is damaged, you must show you lost money directly as a result, money you can present concrete evidence of losing (you don't have to prove your the details of your sex life in order to recover damages for loss of consortium). No actual damages, there's no reason to bring a libel action, even if you were defamed.
Libel per se allows recovery of damages simply for the libel; but it must be libel of a nature so pernicious that public policy (again) demands the libel be punished. I'm going from law school memory here, although I actually worked (as a legal assistant) on only libel case; but that was a long, long time ago now. Libel per se can exist where you are falsely accused of a felony (a crime of moral turpitude), for example. In the facts of Sullivan the plaintiff claimed libel per se because he was a government official, and the alleged libel brought the government of Alabama into ill repute, against public policy because the statements were false. In such cases you can recover damages without proving actual damages, and even recover punitive damages, as were awarded in Sullivan. This is probably what Justice Thomas imagines he can do if Sullivan is overturned; gleefully sue all his "enemies" and accuse of them of libel per se so he can collect without ever showing he lost money or business contracts/interests due the libels he would like to allege. It is partly the issue of libel per se that undergirds the 1st Amendment holding in Sullivan. Libel per se is libel so malicious it cannot be allowed. Sullivan still allows such claims, but doesn't allow them on the weak grounds the Alabama court allowed. What that opinion does, and doesn't allow, is contentious still, in large part because of what Leitner is discussing here:
Brian Leiter
It’s important to recognize that most of what any of us believe about the world depends on intermediaries, people who guide us as to what we ought to believe because it’s true. I believe in evolution by natural selection, but not because I did all the experiments in the lab.
The big crisis of the internet era is that it has eliminated a lot of the traditional intermediaries, such as the New York Times or the Wall Street Journal or PBS or the BBC and so on. Those old intermediaries weren’t perfect, but they were better than what we have now. So I think we need better intermediaries that help people to sort out the world.
But again, I don’t anticipate a law being passed that shuts down Sean Hannity or Rush Limbaugh — we’re stuck with them. Which means we’re stuck with a public sphere filled with nonsense. So the short answer is that we’re screwed.
We're stuck, in other words, in a world where Facebook can mean more to a mother than her child's health, or at least a rational assessment of what her child's health requires. Maybe philosophy can help us?
Brian Leiter
Well, if I may reference one of my favorite philosophers, whom I know you like as well, Nietzsche said, “Sometimes the truth is terrible.” And I think there’s value in recognizing the truth of our situation, even if it’s terrible.
We have massive amounts of worthless, dangerous speech in the public sphere right now, and at the same time I can’t see any legal remedy that isn’t likely to be used for even more pernicious ends. But the situation we’re currently in is quite dire, and the fact that we have a monster child as our president is proof of that fact.
Sean Illing
Given everything you’ve said, given the paucity of realistic solutions, what’s the point of an article like this? Why make the case against free speech if there aren’t any viable means of improving speech?
Brian Leiter
The fact that there aren’t solutions now isn’t a reason not to identify a problem. And of course, one point of the article is to challenge what I think is a slightly unthinking popular consensus. Free speech isn’t an inherently good thing; it can be good or it can be bad, and normally we think of the law as something that can step in when things can be both good or bad, like operating a motor vehicle, for example, which is why we have rules about it.
But in the case of speech, we have good reason to be worried about whether we’ll make the right rules. And therefore, the real question that we need to talk about isn’t about assuming the intrinsic value of speech. It’s about why we have a political and economic order that makes it impossible for us to regulate all the bad things about speech in a reliable way.
Is it the political and economic order? Or the social order? Does changing the frame change the answer? Because as an advocate for the basiliea tou theou, I would argue that the fundamental problem is the need to make the first last, and the last first (to begin with). Not that my "solution" is more inherently practical than no solution; but at least it's better than throwing up your hands and saying "Hell if I know!" We do make an advance, however, if we take free speech out of the "inherently good" category, and recognize it was just another tool that can be used, or abused.
As for regulation of speech, here's a whole other factual situation neither the courts nor Leiter and Illing have touched on:
And where does absolute freedom of speech fit into this?
Even the Supreme Court acknowledges you can't shout "FIRE!" in a crowded theater without legal consequence, if only because such speech is based solely on fear and, arguably, anger; and the purpose is clearly neither to be informative nor even to freely express an opinion. Race is a pernicious category under the law; is there no place for refusing to protect speech from legal consequence when that speech is racist? And is there no one in society who can be trusted with determining what speech is racist? No one at all?
And while we're complicating matters, let's add this to the mix:
But Rupert Murdoch is not engaged in "traditional television broadcasting." For one thing, the times I see FoxNews at all is either on websites where video excerpts are published, or in public spaces where televisions are running it because the TV has a cable connection. I see FoxNews in airports and waiting rooms, not my living room; and neither of those are "traditional" settings for TV viewing. While cable is as old as I am, it's not "traditional television broadcasting," and FoxNews is not "traditional broadcast news." I take the point, that this is coming not from internet sites but from a television channel, but the medium is not the message. The fundamental difference is between the impact of television v. the impact of print (who reads Breitbart anymore? It's on-line, but it's in print, not in front of cameras). The issue is less how the information is received, though that is an issue; but more what information is disseminated. That it is just more effectively and efficiently distributed by video than by print is not the problem; that it is widely and freely disseminated at all, is the problem. A lie is halfway around the world while truth is still putting on its boots; that observation was a bit less trenchant and worrisome, it turns out, when lies traveled at the speed of personal communications and printing presses. Jane Mayers' article on FoxNews is a deeply insightful look into that network and the propaganda it promulgates (everyone is talking about it, and deservedly so), but is Myers' article enough speech to counter the torrential spew of that network? The DNC doesn't think so:
Plato didn't presume that education would make us all philosopher king. Mill's argument lives in the shadow of that philosophy, though; that free speech can be absolute in the context of an enlightened citizenry imagines that education will raise all our boats into the sweet land of reason. It didn't take the creation of Facebook to prove that dream chimerical. Then again, the Constitution's rights are not so absolute as to make it a suicide pact; we are not required to trust in the kindness of strangers. anymore than we might trust in the benevolence of kings, or the power of a system to save us from ourselves. I think in the ends that's the problem with arguments that imagine an absolute, be it free speech or the power of the people in a democracy: the idea that a system will work for us while we do nothing for the system, if a form of magical thinking. Magical because the system so imagined fits the working definition of magic: a power that follows our desires and enacts our will with minimal effort from us, and has an absolute power to know what we want and what we need and how to deliver it to us at just the right time in just the right way. It is no less magical if you expect it from an Invisible Sky Buddy or from a well-reasoned argument. Not even the law will save us; but at least the law is constantly trying to balance competing interests against the requirements of justice and the public interest broadly, if not always accurately or fairly, conceived. At least the law takes on the responsibility for affecting people's lives; that is where, as the old tire ad had it, the rubber meets the road. It's the only system I can think of that doesn't really make obeisance to Plato. Maybe it's worth wondering why we still do in almost every other area of public policy concern.
As for regulation of speech, here's a whole other factual situation neither the courts nor Leiter and Illing have touched on:
If you’ve ever spent any time reading comments on a website, you’re no doubt surprised to find out that anybody had deleted anything. The internet often seems like a lawless wasteland. But there was a law. And it was me.The crux of "free speech" is whether or not something needs to be said, or heard, in the first place; and who gets to decide? The FCC does, in some cases. The law does, in others. I think people should be free to read Nietzsche; but I can't make them understand Nietszche (who isn't that hard to read, actually; not after you've taken on Emmnuel Levinas or Jacques Derrida, or even Martin Heidegger). The more pernicious problem with Nietzsche is not that people read his works; it's that they so badly misunderstand them (to be fair, I'd say the same about Kierkegaard, another 19th century philosopher/poet. But nobody ever did violence on others in the name of Kierkegaard's Knight of Faith or based on making a "leap of faith.") Yet the most interesting part of that article is the explanation for the triumph of Donald Trump, a candidate who sounded just like the commenters who were being banned for saying things nobody really needed to hear:
In case you’re curious about what called for deletion, here are the guidelines: Anything that was overtly racist, sexist, homophobic or violent had to be deleted. Along with spam. So much spam. Hundreds of links a day to jobs that promised riches while working at home. I worked at home. I was not getting riches. I was losing a part of me every day. You read the comments and you feel awful. You take down comments and people get angry. You ban certain slurs and then people create new ones. The resilience they show is heartbreaking. They get angry at the fact that they’re not allowed to say certain things. They never seemed to ask themselves why they thought they needed to say them in the first place.
All they knew was that he drove the liberals crazy. He was just like all of the anonymous internet commenters. He justified their existence, and they justified his. And they all rallied around him. The campaign was seemingly born out of, and supported by, comment sections. Our job became tougher. As a news blog, we were covering stories featuring a man running for president saying things that I would have deleted his account for had he been just another troll on the site. But he wasn’t just another troll.Because he was a troll in meat space? Or because the definition of 'troll' is no better defined than "absolute free speech" (because, as I say, there are uses of "speech" and even definitions of "speech" i know Illing would not agree with).
And where does absolute freedom of speech fit into this?
Blair Levin, at that time the chief of staff at the F.C.C. and now a fellow at the Brookings Institution, says, “Fox’s great insight wasn’t necessarily that there was a great desire for a conservative point of view.” More erudite conservatives, he says, such as William F. Buckley, Jr., and Bill Kristol, couldn’t have succeeded as Fox has. Levin observes, “The genius was seeing that there’s an attraction to fear-based, anger-based politics that has to do with class and race.”
Even the Supreme Court acknowledges you can't shout "FIRE!" in a crowded theater without legal consequence, if only because such speech is based solely on fear and, arguably, anger; and the purpose is clearly neither to be informative nor even to freely express an opinion. Race is a pernicious category under the law; is there no place for refusing to protect speech from legal consequence when that speech is racist? And is there no one in society who can be trusted with determining what speech is racist? No one at all?
And while we're complicating matters, let's add this to the mix:
It’s commonplace, for example, to treat the contemporaneous and narrow electoral victories of Donald Trump and Brexit in the United States and United Kingdom as revealing some important, deep-seated truth about the nature of global capitalism. An alternative explanation, however, is that Rupert Murdoch is a very powerful person in both US and UK media and he intervened decisively to put the Trump and Brexit phenomena over the top.How free is speech when one person controls it so decisively? Arguably Rupert Murdoch is not controlling our freedom of speech, but he is controlling what we do with our freedom, through his control of speech. Is this a fundamental concern to anyone? Shouldn't it be? Matt Yglesias, from whom I take that quote, thinks he knows the answer:
If true, lancing the boil of this particular destructive form of nationalism requires less a broad rethinking of the foundations of politics and more specific focus and the ability of a handful of propagandists to decisively alter the course of events. The past two or three years have seen a very intense social and political focus on the phenomenon of “fake news” spreading digitally on social media platforms. But while fake news is obviously not desirable, the evidence for its practical impact has been relatively slight compared to the evidence that mass opinion has been manipulated by traditional television broadcasting.
But Rupert Murdoch is not engaged in "traditional television broadcasting." For one thing, the times I see FoxNews at all is either on websites where video excerpts are published, or in public spaces where televisions are running it because the TV has a cable connection. I see FoxNews in airports and waiting rooms, not my living room; and neither of those are "traditional" settings for TV viewing. While cable is as old as I am, it's not "traditional television broadcasting," and FoxNews is not "traditional broadcast news." I take the point, that this is coming not from internet sites but from a television channel, but the medium is not the message. The fundamental difference is between the impact of television v. the impact of print (who reads Breitbart anymore? It's on-line, but it's in print, not in front of cameras). The issue is less how the information is received, though that is an issue; but more what information is disseminated. That it is just more effectively and efficiently distributed by video than by print is not the problem; that it is widely and freely disseminated at all, is the problem. A lie is halfway around the world while truth is still putting on its boots; that observation was a bit less trenchant and worrisome, it turns out, when lies traveled at the speed of personal communications and printing presses. Jane Mayers' article on FoxNews is a deeply insightful look into that network and the propaganda it promulgates (everyone is talking about it, and deservedly so), but is Myers' article enough speech to counter the torrential spew of that network? The DNC doesn't think so:
“Recent reporting in the New Yorker on the inappropriate relationship between President Trump, his administration and Fox News has led me to conclude that the network is not in a position to host a fair and neutral debate for our candidates,” DNC Chairman Tom Perez said in a statement to the Post. “Therefore, Fox News will not serve as a media partner for the 2020 Democratic primary debates.”(Funny how these examples keep coming up as I keep trying to draw this to come kind of close.) Less speech is appropriate, the DNC thinks, not more; because speech is not always free, and context always matters. In what absolute context is there ever absolutely free speech?
Plato didn't presume that education would make us all philosopher king. Mill's argument lives in the shadow of that philosophy, though; that free speech can be absolute in the context of an enlightened citizenry imagines that education will raise all our boats into the sweet land of reason. It didn't take the creation of Facebook to prove that dream chimerical. Then again, the Constitution's rights are not so absolute as to make it a suicide pact; we are not required to trust in the kindness of strangers. anymore than we might trust in the benevolence of kings, or the power of a system to save us from ourselves. I think in the ends that's the problem with arguments that imagine an absolute, be it free speech or the power of the people in a democracy: the idea that a system will work for us while we do nothing for the system, if a form of magical thinking. Magical because the system so imagined fits the working definition of magic: a power that follows our desires and enacts our will with minimal effort from us, and has an absolute power to know what we want and what we need and how to deliver it to us at just the right time in just the right way. It is no less magical if you expect it from an Invisible Sky Buddy or from a well-reasoned argument. Not even the law will save us; but at least the law is constantly trying to balance competing interests against the requirements of justice and the public interest broadly, if not always accurately or fairly, conceived. At least the law takes on the responsibility for affecting people's lives; that is where, as the old tire ad had it, the rubber meets the road. It's the only system I can think of that doesn't really make obeisance to Plato. Maybe it's worth wondering why we still do in almost every other area of public policy concern.
