The Dangers of Free Expression

Ah, the halcyon days of the House Un-American Activities Committee ("HUAC").  See the giants of HUAC above, Senator Joe McCarthy and Roy Cohn, hard at work.  Have those days returned, or are they returning?

The People's House, as it is called by some without apparent irony, or at least certain of its members, recently took the opportunity to posture for us by interrogating high officials of certain Ivy League schools regarding anti-semitic speech and conduct if not in the halls of academia then on campus.  As a result, certain of them have resigned or are on the cusp of doing so, and the professionally outraged and great donating individuals and corporations are gunning for their jobs.

It's always amusing when politicians strike attitudes for the cameras and exercise their relatively limited powers of expression on most any topic.  But this is particularly the case when self-righteousness is what is on display.  To be frank, the very idea of members of Congress inquiring into free expression isn't merely amusing; it's alarming.  Their tendency is to regulate, as regulation involves the exercise of powers that, unfortunately, are given them, and except for the acquisition of money it is the exercise of power which gives them the most joy.

So, any meeting of a committee of Congress for the purpose of exploring issues which may be impacted by First Amendment concerns, or questions of morals, is prima facie disturbing.  What seems to be motivating the head hunting now taking place, though, is itself disturbing, as it seems that the sad recipients of Congressional attention had difficulty affirming that advocating the extermination of the Jewish people would violate the codes of their institutions relating to bullying and harassment. 

Calling for genocide would seem objectionable per se.  Ambivalence on whether it is in the case of Jews in particular is especially objectionable at this time, given increasing instances of anti-semitism, which is what evidently led to this latest salle by Congress into higher education.  One would think that it would only make sense to confirm that calling for genocide of a people is bullying and harassment even in Ivy League schools.

Just what caused the hesitance and equivocation isn't entirely clear, but it seems to be motivated by the belief that, at least in the academy, there should be few if any limits on expression.  Just why this would be believed is also unclear, to me at least.  To a certain extent, I tend to blame John Stuart Mill, the author of On Liberty.  On the question of freedom of speech, he remains something of an idol.  Mill is thought by today's version of conservatives to be a liberal, and therefore evil, but the truth is he was very much a Classical Liberal, which is what conservatives were in many instances in the days when conservatism was a legitimate point of view.  He is perhaps more accurately called a Libertarian.

Regardless, though, when it comes to free expression Mill was unfortunately something of an absolutist.  Thus, according to him--"if all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind."

There is danger in absolutism.  In the case of free expression, claiming that all expression must be free requires the suspension of intelligent judgment.  It requires that we accept the view that all speech be treated as equal in value and merit.  That simply is not the case, and no appeal to a mythical "marketplace of ideas" justifies such an irresponsible position.  In fact, as we should know to an increasingly reasonable degree of certainty, people will believe anything, no matter how stupid, no matter how insensible, no matter how irrational, and once believing won't be persuaded not to believe.

This is not to say that there's anything seemly or worthy in the histrionics being engaged in by certain politicians and the wealthy as they seek to outdo each other in their self-righteous demands for academic blood.  But it is to say that free expression can be dangerous, and isn't always to be allowed.

Free Speech and the Suspension of Judgment

Several times in this blog o' mine I've noted the confusion which often surrounds pronouncements and platitudes regarding what we enjoy calling free speech.  Here in our Glorious Union, it's claimed that our right to free speech is grounded in the First Amendment to the Constitution, which states that Congress shall make no law abridging the freedom of speech.  Strictly speaking, of course, no right is created thereby; it's a prohibition.  It doesn't say everyone has a right to free speech.  It says only that Congress may not adopt laws of a particular kind.  

Although many feel that the First Amendment provides that nobody may restrict our freedom of speech, it very clearly refers only to Congress.  Via the Fourteenth Amendment and case law, it's been extended to apply to actions by state and local as well as the federal government, but it doesn't relate to the actions of any person or entity which isn't a representative or agency of a government.  

One can if one wishes claim there's a natural or God-given right to free speech, but it's difficult to rely on such a claim to prevent someone from restricting our speech.  If we wait for nature or God to punish those who make us shut up or prevent them from doing so, it's more than likely that we'll be unable to speak when that happens, if that happens.

There's a kind of romance associated with free speech.  The picture associated with this post is of someone speaking at Bughouse Square in Chicago, across from the Newberry Library, where I labored as a student for a time (studying J.S. Mill and the Philosophical Radicals, interestingly enough).  The speaker is speaking from atop a box, possibly a soapbox as would be traditional.  The purpose of the box is to make the speaker visible above the crowd which (it's hoped) would be listening intently to what's being said.  This is an image which is conjured up from time to time in reverence to free speech--the common, or perhaps uncommon, person delivering views in public.

It's an attractive image, as is the idea of free speech itself.  Everyone should be able to speak their mind without fear of reprisal.  But in these sad times the tendency is more and more to claim that that everyone should be able to speak their mind no matter what they say and without objection or limitation.  Reprisal isn't required to violate free speech, according to some of those who self-interestedly champion free speech these days.  Vocal or active disagreement may violate the right to free speech, or a boycott may do so, even when by private persons.  Even shaming may do that, or not being allowed to say something in a particular (private) place or on privately owned media.

This is called censorship, and when it is called that those who make the claim also do so as a result of their confusion, or ignorance regarding the meaning of the word.  A censor is a government official.  Censorship is an official action, not a private one.

Even the First Amendment and the legal right it creates (to the extent there is a "right") is limited.  The government is not prohibited from restricting speech in certain circumstances.  Since the First Amendment doesn't apply to private conduct, it makes sense that a private person or entity would be able to restrict speech to a much greater extent than the government particularly where the speech is taking place in property the private person owns.

This shouldn't be surprising.  It should be even less surprising that certain speech is unworthy of protection beyond legal protection, and that no "right" to that speech exists.  People have no more right to indulge in malicious, stupid, ignorant, bigoted or hateful speech than they have a right to be malicious, stupid, ignorant, bigoted or hateful people.  Other people are perfectly free to object to such speech or people and act against them, within the law.

Free speech doesn't entail that all speech is equally worthy, or that there is no basis on which speech of any kind can be objectionable.  Free speech doesn't require that we suspend judgment when we encounter speech that is despicable and accept any view voiced regardless of its merit.   We need not tolerate all speech, just as we need not tolerate all conduct on the grounds that all people are free to do as they please.  The legal right of free speech and the First Amendment are poorly served by those who claim the right to say whatever they want whenever or wherever they want.

A Strange Kind of Liberty

Six professors at Wellesley College, members of an entity with the daunting title of "The Commission on Race, Ethnicity and Equity", recently sent to other members of the faculty at that college an email which has made the news.  As one might expect from a body so named, the email is in the nature of a pronouncement, but is in the guise of a recommendation, that recommendation being that certain kinds of people not be invited to speak at Wellesley.  Also as one might expect from members of such a commission, the email's closing salutation is "in solidarity."

Wellesley's mission, according to its Web Site, is "[t]o provide an excellent liberal arts education to women who will make a difference in the world."

The email is peculiar in several respects, but most of all I think in its use of the word "liberty."  The members of the Commission were apparently induced to issue it because within recent years speakers professing "controversial and objectionable beliefs" were invited to the college.  The members of the Commission are careful to say that they--of course--defend free speech and believe it essential to a liberal arts education,   However, they note that as noted by a historian, the "enlightenment principles" underlying free speech prescribe that the limits of one's liberty begin when it imposes on the liberty of another."  The Commission then declares: "There is no doubt that the speakers in question impose upon the liberty of students, staff and faculty at Wellesley."


For me, the fact that professors at an institution like Wellesley refer, with apparent approval, to enlightenment principles is something of a surprise in itself.  I may be misinformed, but I was under the impression the Enlightenment is disapproved as being too European, imperialist; too committed to an unsupported and detrimental regard for what was and still is considered to be science and reason.


But I digress.  I wonder, primarily, just what liberty of (evidently) everyone at Wellesley was, without doubt, imposed upon by speakers holding controversial and objectionable beliefs.  Regrettably, the members of the Commission are not clear just what the liberty is, or how it is being restricted.  Reference is made to students who feel "the injury" most acutely and "invest time and energy in rebutting the speakers' arguments."  Is their liberty imposed upon because they feel injured?  Or, is their liberty imposed upon because they devote time and energy to rebutting arguments; time and energy which could have been devoted to some other activity, or restful inactivity?

My guess is that the members of the Commission think liberty is being imposed on because of the former.  They reference in various ways the distress of students, and harm to them, several times in the email after their declaration regarding the clearly offended liberty of all at Wellesley, so I don't know what else they could intend.  So, the pertinent question would seem to be--is the liberty of a person "imposed on" when they feel disturbed or offended ("harmed") by the fact certain people say certain things?

"Liberty" is defined as consisting of freedom, i.e. the freedom to do or say what one pleases, the freedom to choose.  A person's liberty is infringed when that person's freedom to do something or other is restricted unduly.  Arguably, a person feels disturbed or distressed when he/she isn't free, but that feeling isn't itself the state of being unfree anymore than pleasure is the state of being free.  I don't have liberty because I feel good nor am I lacking it when I feel bad.  I feel distressed when I'm insulted, but that doesn't mean my liberty has been taken away or infringed upon.

This strikes me as fairly obvious.  Did the members of the Commission actually mean, instead, that liberty was being imposed upon because the students felt called upon to rebut the objectionable speakers, or somehow had a duty to do so?  I think when someone is actually compelled to do something we can say that he/she had no choice, and so wasn't "at liberty" to do otherwise.  But if one's liberty is imposed on whenever one rebuts a claim or argument, it is imposed on whenever there is disagreement, or strong disagreement, and I don't think we use the word "liberty" in that manner.  Besides, isn't time and energy invested in rebutting an incorrect concept or idea time well spent, especially (even?) in the halls of the Academy?  Regardless, I think the professors of the Commission are using "liberty" in a most unusual, artificial manner.  Which is to say that they use it inappropriately.

I think they do so because they understand that their "recommendation" will be taken to be a recommendation to restrict free speech on a college campus, and understand also that it is such a recommendation.  They could, of course, claim that free speech should be restricted in order to avoid students being harmed, or disturbed, or distressed, but would rather not say that. 

The quote from J.S. Mill I inserted at the beginning of this post should be familiar to most academics, and probably is familiar to the members of the Commission.  They're also no doubt familiar with something else he wrote, to the effect that we should be free to do as we wish provided we cause no harm, i.e. that our liberty is permitted to the extent that it doesn't infringe on the liberty of another; that is where they began in their email.  But it's clear that Mill didn't think, with them, that speech should be silenced when it is disturbing.

Silencing speech is clearly a limitation of freedom.  Preventing someone from speaking imposes upon that person's liberty.  Hearing someone speaking doesn't impose upon the liberty of the listener, though, nor does hearing of someone speaking or having said something objectionable or controversial in any normal sense of the word.

The Commission and those who share the opinions of its members must resign themselves to the fact that much as they may support free speech, they seek to prevent it in certain circumstances.  The more honorable course would be for them to admit this and maintain that certain speech should not be permitted.  That, of course, is not an easy claim to make or defend, but that is the actual claim being made, today, by some of those involved in higher education. 

No Country for Poor Men

It's not a country for poor women either, of course, but I'm obviously mimicking the first line of the great poem by Yeats, and the title of the not quite as great but quite good movie, and so it must be.  The country I refer to is our Great Republic, and this post is devoted to the Supreme Court's latest curious decision regarding the First Amendment, McCutcheon v. Federal Elections Commission.  In that decision, the majority finds, once again, that the First Amendment requires that those with a great deal of money to spend in an effort to support the election of politicians and the success of political parties they prefer, and who want to spend it for that purpose, must be allowed to do so.

Not long ago, SCOTUS taught us that money is speech.  That's not entirely clear to me, but what is clear and what has unquestionably been the case for much longer--a very long time indeed--is that money is power.   Speech may be powerful, but money always is.  Money is power because money allows us to do things and to buy things.

Among the things which may be bought with money is influence in politics, which is to say influence in the election of politicians and influence thereby on the making of political decisions.  Speech may influence, but it cannot do so with the persistent and and overwhelming efficacy of money in a political system which is so entirely dependent upon the expenditure of money, which in turn requires the acquisition of money. 

Money "talks" in this sense only.  It isn't speech any more than it is a belief, thought or an idea, but it serves to contribute to the expression of particular beliefs, thoughts and ideas in such a manner as to assure their predominance.  That is particularly the case where money is essential to the "selling" of beliefs, thoughts and ideas, as it is in these United States.

The majority of the court acknowledges, as it must, that even the right of free speech is subject to reasonable restriction.  However, it apparently feels that money as speech cannot be restricted except in the very limited cases when it is used, directly, in obtaining a quid pro quo.  Also, in a rather stunning statement under the circumstances, it asserts that its decision is required in order to foster the primary purpose of the First Amendment which is to protect the minority from the tyranny of the majority.  Money as speech therefore may be restricted if it is a bribe.  As a bribe, however, money is clearly not speech, as it is in that case something of value given to influence an official in the performance of a public duty.  One is not "bribed" by speech.

So, apparently, money as speech may be restricted when it is not speech.  This would seem to serve to raise questions regarding whether money is in fact speech.  Can money when used to influence politicians be speech when a quid pro quo is not demanded, but not speech when it is demanded?  If it is a thing of value in the latter case, why not the former?

But it also serves to establish what money really is in the context of politics.  It is a means by which influence is obtained and exercised, regardless of whether we call it "speech."  It's not possible to contend that the Justices of the Supreme Court are unaware of this fact.   What SCOTUS seems to be saying is that when money is used to influence public officials, its use is improper, but only in limited and very specific circumstances.  In other circumstances, it is protected by the First Amendment.

Perhaps the majority feels that the very rich, who are indeed a minority, must be free to contribute to politicians, political parties and political causes in a way others cannot in order to protect themselves from the very sizable majority who are not very rich.  If so, the honest assertion of this view would be appreciated and even honorable, in a sense.

If that is their view, though, it would seem that the odd legal conclusion that money is speech is rendered unnecessary.  But when it comes to influence, the rich have no problem getting their voices heard, but not through speech.  Speech is not required for influence, but money most certainly is required.  The influence of the rich will not be thwarted by that of the 99% by any means, and will never be thwarted by them, not because money is protected speech, but because money is spent.

In a system so dependent on money, speech strictly speaking is of little relevance or consequence.  That would seem to be the primary problem with characterizing this as a First Amendment issue.  It is one of power and influence, and where power and influence are concerned, the rich are substantially better equipped than the majority will ever be. 

It's true that the rich have always been better able to influence, if not control, our politics than others.  So that they continue to do so is not remarkable.  What is remarkable to me, though, is the way in which the law is being used to support their influence.  In the past influence was exercised more directly in one sense but also stealthily.  We were less inclined to extol their influence, even inclined to downplay or hide it.  That's no longer the case.   Now we claim that their influence, indeed their greater influence, is required by the Constitution. 

The Best Government Money Can Buy

We had it, according to Mark Twain, quite some time ago, and will have it again.  He could be amusing at times, could old Sam, and perceptive as well when he was not pandering to his readers by commenting buffoonishly on noisy, dirty, smelly foreigners in such works as Innocents Abroad (I was reminded of this sad characteristic while reading Mencken's fine essay on Puritanism in American literature).

That Twain felt we had in his time such a government reminds us that things are not all that different, our Supreme Court's decision in Citizens United notwithstanding.  I can't but feel that there lurks in liberal criticism of that decision a petulance born of the belief that there are simply not enough liberally-minded corporations readily available to foot Democratic bills as there are conservative ones to pay for Republican campaigns.  Regardless, though, it is always a concern when money figures so prominently in the election of officials of any kind.  It's not clear to me, however, that the view of the majority of the Supremes that corporations are people for purposes of free speech as well as for other purposes adds that much to the corruption of our politics.

Of greater concern I think is the rejection of limitations on financial contributions to the efforts of our leaders and those who wish to lead us to induce us to vote for them or those things they hold dear.  Corporations have been treated as persons in the law for so many years for so many reasons that maintaining they are not for other, particular purposes is somewhat awkward.  Limiting financial contributions is relatively clear and simple, would likely reduce the opportunity for corruption and would seem to have no clear adverse impact of any significant kind.  It may make it more difficult for our politicians and their minions to bombard us with increasingly trite, simplistic and hyperbolic propaganda, but this would not be a bad thing.


This brings us to the rather perplexing view which is translated into the phrase that "money is speech."  It clearly is not in itself.  It can, though, facilitate the ability of some not only to speak, but to speak very loudly and frequently in many different locations to many people.  Is this facilitation itself free speech, to be accorded constitutional protection?


Consider the law applicable to restrictions on the constitutional right to free speech.  Consider, in other words, those circumstances in which it has been held that government has wrongfully limited that right.  I think it would be accurate to state that money is not often a factor, except to the extent that it somehow figures in action which results in the prohibition or limitation of speech itself.  That unconstitutional limitation rightfully relates to the content of speech or the act of speaking, however, not to the quantity of speech.

If one is prohibited from saying something by government, or speaking at all, that is or should be significant in the law.  If one is prohibited not from saying something, but from having access to unlimited amounts of money from particular donors which will allow you to say it again and again, at all times and in all places through media of all kinds, and hiring professionals to say that something in the most persuasive manner, that is or should be something quite different as far as the law is concerned.

Of course, we can only truly avoid being led by the nose by our politicians and their lackeys by thinking analytically.  But that would mean spending money on educating people to do so.  That wouldn't make money thought, but it would be a thoughtful use of money (I should never have read Chesterton; I can't avoid these cloying little gibes at times, and blame it all on him).  Unfortunately, thinking is often something those who have the money would rather we not do.

Justice, the Law and the Problems Caused by their Association

The commentary I've read regarding the decision of the SCOTUS on the campaign financing law serves to support an opinion I've held for quite some time.  That is, that associating the law with justice is a fundamental error, albeit a common one.

Every practicing lawyer has encountered (and dreads) the client who engages in litigation driven by the belief that they are right, and their opponent wrong, and more often than not evil.  Such clients are usually eager to go to trial, to punish the wrongdoer and achieve the just result they expect from any impartial judge or jury.  Any effort to persuade them that a trial won't determine who is right and who is wrong, and will at best tell them what the law provides for under the circumstances, which may not be the same thing, is futile.

Those of us who are not lawyers naturally tend to think of court decisions as right or wrong.  Those of us who are lawyers often think of them in that way too; but we recognize that what is right and what is wrong is not the issue decided by the court.  What is decided is what the law says about the situation.  This, at least, is the ideal.  Judges are human, and their personal beliefs will often intrude in their decision.  But prior case law, the rule of precedent, the rules of statutory construction, and other rules and aspects of the vast body of the law make it difficult for judges to render decisions based solely on personal preference.  They exist, in part, due to a justifiable desire that judges refrain from imposing their personal preferences (and be "impartial").  In this fashion, decisions rendered are to some extent predictable and uniform, which is deemed desirable in a system developed to regulate social conduct.

Considerartions of what is just, what is right or wrong, often inform legislation, and appropriately so.  When legislators become too concerned with such considerations, however, and vote solely based on their personal moral beliefs, we get bad laws, like Prohibition.

So, I've felt that much of the commentary I've read on the recent decision is too often an expression of outrage, and rather lacking in analysis and understanding of the legal issues involved.  Those who believe the decision, and the majority of the court in this case, corrupt and evil would I think be surprised if they read the decision, and especially the dissents.  They would find that even the dissenters approach the issue very differently than they do, because they are considering the application of the law, not what is right and what is wrong.

The right of free speech is accorded such significance in our law that there is a presumption the right should prevail in most circumstances.  Government may regulate it only to the extent that there exists some compelling interest which requires the regulation.  Those who seek the regulation have the burden of establishing that it is compelling.  Claiming corporations should not have free speech rights is a simplistic response to the issues involved in the decision.  Generally, those who make such an assertion find themselves in something of a bind when asked whether non-profit corporations formed as citizens groups, to promote a particular political and social agenda, should have such rights.  And, since the media largely operates through the corporate form, denying such rights to corporations generally becomes problematic.  When one starts picking and choosing corporations which should and should not have such rights, things get very interesting indeed.

Assessing this decision (and the law generally) solely from the standpoint of what we personally believe is just, therefore, is not particularly useful.  It should be assessed as a legal decision, i.e. based on the law.  The law in this case happens to be the Constitution and a great mass of case law, applied to the campaign finacing law.  If the decision doesn't appropriately analyze or apply the law, the pertinent question is what to do about it.  When that question is realistically addressed, the options are change the Constitution, rewrite the law in question or adopt new laws drafted to avoid the decision, or wait for the decision to be overturned.