Sometimes it seems as though people no longer know what freedom of speech is. The Stanley Fish argumentation in his infamous essay against the very coherence of free speech has not increased clarity or general understanding — though I take it that was indeed what Fish was trying to provide. So I have, in a number of venues, tried to explain free speech.

Recently on Quora I have answered two questions that sketch out what I believe to be the correct formulation of the idea:

I provided the gist of my understanding in the first essay:

Remember, freedom of speech is a term of art. It does not mean “all speech is free,” or that all symbolic acts are legally justifiable. Freedom of speech is merely speech broadly construed (semiosis) that does not aggress against the rights of others to be free. It is a way of defending freedom in the realm of speaking, listening, reading, writing, etc.

We cannot (rightly) possess a right to use speech to conspire against the rights of others.

The most important point to take away is this: a right to free speech does not mean that all speech is free.

Free speech “absolutists” get this wrong all the time, for they are constantly moved by their desire for consistency and absolutism to construe all speech as free. One reason for this is that they wish to use the First Amendment in a lawyerly way, with specific words carrying the most weight. They most strongly wish to avoid philosophy, and instead use the Constitution as a magic document, and the words in it as incantations that solve all problems.

We can see how well that has turned out.

And perhaps my free speech absolutist friends are afraid of Fishian (piscine?) error, of saying that if some speech is free and other speech is not, then the demarcating line must be arbitrary.

This is just simply not the case.

So, what is the line of demarcation between speech that is protected as free and speech that is not?

Freedom itself, in the wider context.

Most importantly, free speech really only makes sense in societies that regard general freedom (liberty) as in some sense primary. Indeed, it also only makes sense — and this can be seen best when paired up with freedom of religion and especially the press and association in the First Amendment listing — in a private property rights regime.

You have the right to speak freely on your property. You have the right to speak freely on property you have hired for the occasion.

It necessarily becomes murky regarding public places. This is especially murky regarding the freedom of the press when the press is a government outfit, like Britain BBC. What is “freedom of the press” regarding a government-run medium? All speech is finite, and its purveying is done under conditions of scarcity. Everyone must ration their resources. Including newspapers and blogs as well as radio and TV networks. So when the BBC makes an editorial decision, “free speech” is problematic: which words and ideas to broadcast is a constant decision-making process, with some telling others what to say and what listeners and viewers may hear. “Freedom of speech” is perilously close to meaningless. (But is not.) Which is why minimizing government is a necessity: it obviates basic principles and places government bodies in the position of serving some people and not others.

And government is, in theory, supposed to serve all people.

Oh, why did I bring up “freedom of the press”? That is not free speech, I can hear someone protest.

But it is. “The press” is just a technological way of distributing speech beyond our local realms, outside of our properties. It is free speech with extended borderlines. But the extension must always conform — as speech alone must conform — to individual rights in society.

It might be useful to remind today’s confused connoisseurs to see these concepts in a continuum:

freedom: of thought — of speech — of press

with the most basic being on the left and going from private to public as we read right.

And the context of property rights integrates everything. Without property rights there is no freedom of any kind. For freedom depends on exit rights and exclusion rights. Which, together, make up free association, which is implied by free speech and press freedom.

And, as I noted on Quora: No one has a right to contract a hitman to murder another. You cannot absolve yourself on “free speech” grounds for that sort of criminal speech. Similarly, you may not command someone you have reason to believe will follow your orders to commit a crime, either. The common law has long held that incitement to riot and similar acts do not constitute protected speech because free.

The idea is simple: freedom as both a fact and a right requires reciprocity. Your speech cannot be defended as free speech if your speech precludes others from their free speech.

It is an old idea, reciprocity. But people still get this wrong.

Maybe it would help to compare freedom of speech and press with freedom of religion. In the United States, the First Amendment prohibits Congress from messing about in religious matters, or favoring one religion over another, ceteris paribus.

But that does not mean everything declared “religious” is protected. It may be the case that you desire to sacrifice infants and virgins to your god Ashtaroth, but let us be realistic: sacrifice of this kind abridges the rights of infants and virgins. “Religion” is no excuse for crime.

This is not so nuanced an idea that it cannot be readily understood. No? But maybe it is difficult. After all, I cannot recall anyone else make this exact formulation.

So this is what I insist upon: all these British-American concepts are terms of art, and the art should not seem to us British and American citizens at all recondite. The art is liberty. As soon as you erode liberty either by erecting a Leviathan state (of any variety) or by engaging in piecemeal criminal activity, these freedoms become incoherent.

twv

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