Free Speech Is Hard. Its Alternative Is Worse.

It’s hard to hear ideologues spouting ideas you know are fully wrong, even harder when you know that the implementation of such ideas would hurt people, including you. Hardest is listening to a message full of hate, vitriol, and name-calling, especially when it’s directed against you personally.

It’s therefore natural to declare that there is no place in a civil society for such ideas, and shut them out for our own and others’ protection.

Yet America’s Founders, having just concluded a contentious, violent, and most uncivil revolutionary war, marked by high feelings and powerful propaganda on both sides, recognized the power of their superior ideas in building support for their cause, and concluded that suppression of free association and free speech poses an existential danger for a free society. They thus enshrined protection of both in the First Amendment that was a necessary condition of the ratification of a Constitution conferring powers in government—therein also ranking an armed citizenry as the second-best defense against tyranny.

Yet, as Judge Napolitano observed in his recent column “Trump’s Speech Is Protected Speech,” even these men fell prey, just ten years later, to our natural inclination to silence those by whom we feel threatened. Congress in 1798 passed the Alien and Sedition Acts, among which

made it a crime to utter ‘false, scandalous, or malicious’ speech against the government or the president, or to utter speech in opposition to the government’s efforts to shore up defenses from a war with France that never came about.

Subsequently fearing that their political opponents might use the Acts against them, Congress repealed them before Jefferson took office. (Today’s statesmen might take heed that power granted to your friends remains available for the use of your foes, and think twice before granting sweeping new powers to rulers.)

Fast forward to the midst of World War I, and Congress’ passage of the Espionage Act. It was brought to bear against five Russian anarchists living in New York who had published and distributed anti-capitalist pamphlets—the Facebook and Twitter of the day—exhorting workers in armaments factories to lay down their tools, and for the American public to withdraw their support of the war.

Convicted, the men appealed to the Supreme Court on the basis of Free Speech. The court upheld the conviction in Abrams et al. v. United States, observing

the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe.

In his dissent, Justice Oliver Wendell Holmes wrote:

the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

And therein lies the rub: while we all enjoy the benefits of competition, letting us choose what we like best among many alternatives, we don’t much like it for ourselves. It’s so much nicer not to have to face the threat of someone else being chosen for our job; someone else coming along with a product that people like better than our own; and worst of all, the pain of hearing hateful or dangerous ideas antithetical to ours.

Protecting against each threat means having to work harder: making sure we stay on top of current knowledge and training to perform our jobs as best possible, paying attention to our customers to make sure we continue to meet their needs well, and honing our own thoughts and expression of our ideas in compelling and effective means.

Writing about today’s college “cancel” culture, ACLU Senior Staff Attorney Lee Rowland observes in “We All Need to Defend Speech We Hate“:

Our Constitution protects hateful speech, yes—but on the theory that truly free speech means the best ideas will win out. We need students trained to really listen to ideas they hate—and respond with better ones.

Today’s suppression of social media accounts, and threat of legislation that would censor the expression of ideas deemed “dangerous” and the people who hold them are nothing but the result of decades of Americans too lazy to study and defend—or deprived of a proper educational grounding in—the principles and ideas of a free society.

As Benjamin Franklin observed and has been oft repeated, especially in our 21st century aftermath of the USA PATRIOT Act:

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

Glenn Greenwald, among others, is sounding the alarm against today’s calls to deplatform Trump and other “ideologues,” pointing out that in the aftermath of the Capitol incursion, “every War on Terror rhetorical tactic to justify civil liberties erosions is now being invoked in the name of combatting Trumpism.” Further:

That is because the dominant strain of American liberalism is not economic socialism but political authoritarianism. Liberals now want to use the force of corporate power to silence those with different ideologies. They are eager for tech monopolies not just to ban accounts they dislike but to remove entire platforms from the internet. They want to imprison people they believe helped their party lose elections, such as Julian Assange, even if it means creating precedents to criminalize journalism.

Our best defense against such authoritarianism is codified in our very First Amendment. Free speech for all is our most essential liberty. Suppressing it secures only those who feel superior to and thus want to be unaccountable to us: Politicians and their Big Tech bedfellows.

Mary L. G. Theroux is Chairman and Chief Executive of the Independent Institute.
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