More by Glenn Greenwald on free speech (concluded)

May 1, 2010

This post addresses what I consider to be the main argument against regulation of the activity of uttering ideas. I note that that “uttering ideas” – to friends, or to small groups, in a setting that does not require much resources or authority to arrange – is separate from the activity of broadcasting ideas. I argued before that the latter activity – essentially engaging in a competition for the attention of large numbers of people – is always regulated in one way or another by government and is therefore subject (at least on some level) to different considerations and treatment.

The argument against regulating the utterance of ideas is that a such regulation infringes on what Robert Dahl calls a “democratic right”, (or could alternatively, and perhaps better, be called a democratic need). These democratic rights or needs are activities that are essential to democracy (i.e., to political equality).

If someone cannot express their ideas, then that diminishes their political power, leaving them weakened compared to others who hold different ideas. Thus any such suppression is an anti-democratic feature of government. Therefore, if we consider political equality to be a necessary condition for the legitimacy of all public policy decisions, and therefore a supremely important value of society, or a characteristic whose violation would have dire consequences, then regulating the expression of ideas should be avoided. In some cases the conflict between this consideration and other considerations is strong enough to call an outright deregulation into questions – the cases of libelous speech and threatening speech, for example, are usually treated as justifying regulation. (Greenwald didn’t explicate what his position in those cases is, but it seems safe to guess that he does not see these cases as meriting the outrage he expresses against anti-hate-speech laws.)

But even if the consideration of political equality is considered uniquely supreme, there are cases in which the utterance of a certain idea can be considered a threat to that value itself. The rationale for the Canadian law which Greenwald discusses, is presumably of this kind. In light of those cases, it appears that the right thing to do when considering the options regarding the regulation of speech is not to argue by stressing one consideration solely, but by carefully considering the pros and cons of the possible public policies. Those options are: (1) allowing no limits to utterance whatsoever, and (2) having some way to decide which ideas should be suppressed and how.

Under policy (1), for example, no defamation or libel laws could be instituted which would ban or penalize the utterance of falsehoods about people or institutions. Threats and incitement to violence would also be universally allowed. Clearly, contrary to Greenwald’s claims, the U.S. does not currently have such a system or an approximation of such a system. Specifically, for example, libel laws are very similar in some respects to anti-hate speech laws. Justifying libel laws against individuals but ruling out the possibility of such laws against, say, racial minorities, would require careful argumentation addressing this particular distinction, rather than simply appealing to the desirability of the freedom to express ideas.

Policy (2), which seems quite attractive in view of the considerations above, could still be consistent with wide ranging freedom for speech. The limits of that law would have to be regulated by appropriate representative bodies, according to accepted ideas. Those ideas should, and hopefully would, give the appropriate weight to the fact that speech is an important political tool whose curtailment can cause serious political inequality.

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