‘Free Speech’ is a Blunt Instrument. Let’s Break It Up, by Robert Simpson

April 15, 1967, Spring Mobilization to End the War, San Francisco

Free speech is important. It guards against governments’ dangerous tendency to repress certain kinds of communication, including protest, journalism, whistleblowing, academic research, and critical work in the arts. On the other hand, think of a doctor dispensing bogus medical advice, or someone making a contract that she plans to breach, or a defendant lying under oath in court. These all involve written or spoken statements, but they don’t seem to fall within the domain of free speech. They are what the legal theorist Frederick Schauer at the University of Virginia calls ‘patently uncovered speech’: communication that warrants no special protection against government regulation.

However, once we extrapolate beyond the clear-cut cases, the question of what counts as free speech gets rather tricky. A business whose website gets buried in pages of search results might argue that Google’s algorithm is anti-competitive – that it impedes fair competition between sellers in a marketplace. But Google has dodged liability by likening itself to a newspaper, and arguing that free speech protects it from having to modify its results. Is this a case of free speech doing its proper work, or an instance of free speech running amok, serving as cover for a libertarian agenda that unduly empowers major corporations?

To answer this question, we need a principled account of the types of communication covered by free speech. But attempts to provide such an account haven’t really succeeded. We can pick out cases on either side of the divide – ‘Protections for journalism and protest? Yes! For perjury and contracts? No’ – but there aren’t any obvious or natural criteria that separate bona fide speech from mere verbal conduct. On the contrary, as theorists have told us since the mid-20th century, all verbal communication should be understood as both speech and conduct.

Some authors see these definitional difficulties as a fatal problem for the very idea of free speech. In There’s No Such Thing as Free Speech: And It’s a Good Thing Too (1994), the American literary critic and legal scholar Stanley Fish argued that ‘free speech’ is really just a rhetorically expedient label that people assign to their favoured forms of communication. There’s a grain of truth in this; but it doesn’t change the fact that governments still have a tendency to repress things such as protest and whistleblowing, and that we have good reasons to impose institutional safeguards against such repression if possible.

Instead of throwing out free speech entirely, a better response might be to keep the safeguards but make their sphere of application very broad. This is roughly what happens in Canadian law, where nearly any type of conduct can fall within the constitutional ideal of ‘free expression’, provided that it is trying to convey some kind of meaning. The downside is that if nearly anything can qualify as ‘expressive’ in the relevant sense, then we cannot categorically privilege expression itself as an inviolable norm. WhistlAll we can ask lawmakers to do is factor in the interests that such expression serves, and try to strike a balance with all the other, competing interests (such as ‘equality’, for example, or ‘national security’). While such trade-offs are standard in Commonwealth legal systems, they have the unwelcome effect of making it easier for governments to justify their repressive tendencies.

I’d propose a third way: put free ‘speech’ as such to one side, and replace it with a series of more narrowly targeted expressive liberties. Rather than locating actions such as protest and whistleblowing under the umbrella of ‘free speech’, we could formulate specially tailored norms, such as a principle of free public protest, or a principle of protected whistleblowing. The idea would be to explicitly nominate the particular species of communication that we want to defend, instead of just pointing to the overarching genus of ‘free speech’. This way the battle wouldn’t be fought out over the boundaries of what qualifies as speech, but instead, more directly, over the kinds of communicative activities we think need special protection.

Take the idea of public protest. Standard free-speech theory, concerned as it is with what counts as speech, tends to draw a line between interference based on the content of the speech, such as the speaker’s viewpoint (generally not allowed), and interference that merely affects the time, place and manner in which the speech takes place (generally allowed). But this distinction runs into trouble when it comes to protest. Clearly governments should be blocked from shutting down demonstrations whose messages they oppose. But equally they shouldn’t be able to multiply the rules about the time, place and manner in which demonstrations must take place, such that protests become prohibitively difficult to organise. One reason to have a dedicated principle of free public protest, then, is to help us properly capture and encode these concerns. Instead of seeing demonstrations as merely one application of a generic free-speech principle, we can use a narrower notion of expressive liberty to focus our attention on the distinctive hazards faced by different types of socially important communication.

If this all seems a bit optimistic, it’s worth noting that we already approach some types of communication in this way – such as academic freedom. Universities frequently come under pressure from political or commercial lobby groups – such as big oil, or the Israel lobby – to defund research that runs counter to their interests. This kind of threat has a distinctive underlying causal mechanism. In light of this problem, universities safeguard academic freedom via laws and regulations, including guidelines that specify the grounds for which academics can be fired or denied promotion. These moves are not just a specific implementation of a general free-speech principle. They’re grounded in notions of academic freedom that are narrower than and distinct from freedom of speech. My suggestion is that all our expressive liberties could be handled in this way.

The subdivision of expressive liberties isn’t going to magically fix all the genuinely controversial issues around free speech, such as what to do about search engines. However, we don’t need to resolve these debates in order to see, with clarity and confidence, that protest, journalism, whistleblowing, academic research and the arts need special protection. The parcelled-out view of expressive liberties captures the importance of these activities, while sidestepping the definitional problems that plague standard free-speech theory. These are not merely theoretical advantages. Any time a country is creating or revising a bill of rights, the question of how to protect communicative practices must be considered afresh. Multiple expressive liberties is an approach worth taking seriously.Aeon counter – do not remove

This article was originally published at Aeon and has been republished under Creative Commons.

~ Robert Simpson is a lecturer in philosophy at Monash University in Melbourne, Australia. He writes regularly about social and political philosophy. (Bio credit: Aeon)

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, supported by patrons and readers like you. Please offer your support today!

 

New Podcast Episode: On the Recent Intelligence Squared U.S. Debate About Basic Income

The Moneylender and his Wife by Quinten Massijs (detail)
This weekend, on the BART ride to San Francisco and on the walk to and from my destination there, I listened to this fascinating debate on Intelligence Squared U.S.: The Universal Basic Income Is The Safety Net Of The Future. (It’s also available as a podcast.) It was so thought-provoking that my walk turned into a rather long one, as I stopped every few blocks to sit down and scribble some notes in response to what I heard.
The debaters in favor of the motion are the libertarian political scientist Charles Murray, infamous in many

Listen to this podcast episode here or on Google Play, or subscribe on iTunes

This weekend, on the BART ride to San Francisco and on the walk to and from my destination there, I listened to this fascinating debate on Intelligence Squared U.S.:  The Universal Basic Income Is The Safety Net Of The Future. (It’s also available as a podcast.) It was so thought-provoking that my walk turned into a rather long one, as I stopped every few blocks to sit down and scribble some notes in response to what I heard.

The debaters in favor of the motion are the libertarian political scientist Charles Murray, infamous in many circles for co-authoring The Bell Curve, and labor leader Andrew Stern. These two make surprising debate partners, but of course, that’s part of the fun!

The debaters against the motion are Jared Bernstein and Jason Furman, both economic advisors to the Obama administration, and both more on the liberal / progressive end of the economic spectrum, which also adds to the interesting contrasts between audience expectations and the arguments made…. Read the written version here

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, supported by patrons and readers like you. Please offer your support today!

 

On the Recent Intelligence Squared U.S. Debate About Basic Income

The Moneylender and his Wife by Quinten Massijs (detail)

This weekend, on the BART ride to San Francisco and on the walk to and from my destination there, I listened to this fascinating debate on Intelligence Squared U.S.:  The Universal Basic Income Is The Safety Net Of The Future. (It’s also available as a podcast.) It was so thought-provoking that my walk turned into a rather long one, as I stopped every few blocks to sit down and scribble some notes in response to what I heard.

The debaters in favor of the motion are the libertarian political scientist Charles Murray, infamous in many circles for co-authoring The Bell Curve, and labor leader Andrew Stern. These two make surprising debate partners, but of course, that’s part of the fun!

The debaters against the motion are Jared Bernstein and Jason Furman, both economic advisors to the Obama administration, and both more on the liberal / progressive end of the economic spectrum, which also adds to the interesting contrasts between audience expectations and the arguments made.

Here’s the summary of the debate from the IQ2 website:

Imagine getting a check from the government every month. $600 guaranteed. It’s happening in Finland, where a pilot program is being launched to test what’s known as a “universal basic income.” As technology transforms the workplace, jobs and income will become less reliable. The idea is that a universal basic income could serve as a tool to combat poverty and uncertainty in a changing society, and provide a cushion that empowers workers, giving them latitude to take risks in the job market. But some argue a guaranteed income would take away the incentive to work, waste money on those who don’t need it, and come at the expense of effective programs like Social Security, Medicare and Medicaid. Is the universal basic income the safety net of the future?

I’ve written about basic income before in light of Thomas Paine’s case for a social welfare system, broadly distributed to the point that we’d call it basic income today, in his pamphlet Agrarian Justice of 1796. I’m broadly sympathetic to the case for basic income especially insofar as I’m convinced by two of his major arguments.

One, Paine argues that the right to private property is not an intrinsic right or derived from nature, or even from moral convictions about deservingness or our duties toward those less fortunate. Rather, property rights are artificial rights we’ve created for efficiency’s sake: it’s a way to incentivize people to be as productive as possible to the benefit of both individual and society. But whatever efficiencies property rights promote, Paine observes just as we observe now, they too often deprive people of the very thing they promise to provide. Economies based on property rights deny most people direct access to the world’s natural resources while sometimes failing to reward them proportionally.

This is true not only of those who produce the most necessary, useful goods and services such as growing and preparing food, building and maintaining our cities, towns, and homes, and caring for the disabled and sick; they are often the ones who receive the lowest wages. In the meantime, others who create such frivolous and even arguably harmful things as casinos, violent video games, and poor quality trinkets that become trash almost as soon as they’re made can often make money hand over fist. Some people are not able to make money even if they were willing: they may be disabled or aged, or the skilled work they’ve done all their lives becomes obsolete. Worst of all, those who raise children, care for the disabled and aged, and otherwise keep the home generally receive no pay, though their work benefits society most of all. The amount of money we can bring in generally determines the resources we have access to, so if we have no money, we have no property. Property rights, then, guarantee us the right to property without any consideration as to whether or not we actually end up be able to obtain or keep any. Therefore, Paine argues, we owe every person compensation for denying them their natural right to equal access to the world’s resources.

Two, Paine argues that a universal income is better than discretionary welfare, such as that based solely on need, because it prevents the inevitable jealousies and complaints of unfairness that can erode social cohesion and undermine mutual trust. If everyone starts out at the same basic level, we may not have all of the same chances in life just as we don’t now, advantages or disadvantages that we can’t do much about: we may have rich parents, poor parents, or none at all; we may be able-bodied or we may not; we may be beautiful, smart, or have other attributes that society rewards. But, we’ll all have the same basic chance that we can give one another: the freedom and well-being guaranteed by a basic level of economic security.

But back to the debate…. Why this digression, you might ask? I return to Paine because he makes the first sustained modern argument (that I’m aware of) in favor of a basic income and because his basic points, or closely related ones, are brought up throughout this debate. In the question and answer session, Andrew Stern refers to the way perceived unfairness, such as Paine discusses, has long politically undermined need-based programs, from publicly-funded unemployment benefits to health care insurance for those with low income. Stern also points out that many people already enjoy ‘undeserved’ basic income, such as those born to parents who can afford to provide it. If we have no problem with those people reaping the benefits of work they didn’t do, why not everyone? Charles Murray adds the element of personal responsibility to the question of perceived unfairness of needs-based welfare. If everyone were given the same basic level of resources, people could no longer justly claim victimhood for not having the same chances as everyone else. If we collectively provide the same benefits to everyone, we can hold people to a basic equal accountability for all who could work and contribute more than they do.

Murray, as you may guess from his emphasis on opportunities for traditional marriage and the preeminence of personal responsibility, is much more conservative than the other participants in the debate, and introduces a free market argument that many political conservatives might like just as well as pro-labor liberals and progressives. This argument is founded on the importance of competition in a well-functioning economy. To harness the benefits of competition, Murray proposes that if people have ‘walking – away’ money, employers will have to compete with one another for employees, and in doing so, they will have to innovate to make jobs appealing. Employers would have to offer good wages, provide a pleasant and safe working environment, and make the work seem meaningful and appreciated. This is a sort of competition that serves drives wages, standards, and productivity up, not sending wages and working conditions spiraling in the race to the bottom that so many unregulated job markets, mostly competing to lower prices, have exhibited throughout the history of capitalism.

Jared Bernstein repeats the argument throughout the debate, like a mantra, that a dollar given to someone that doesn’t need it is a dollar taken away from someone that does. Many in the audience seem to find this argument convincing, but I don’t, at least without much more justification than he provides. For one thing, neither Bernstein nor his debate partner Jason Furman addresses the vast expenditures of time and money of a bureaucracy required to administer large-scale need-based welfare. It’s expensive for government as well as for individuals, who are required to provide proofs of their need, which is multi-dimensional and subjective and therefore difficult and time-consuming to demonstrate. (Murray does address problems with this kind of bureaucracy, but he emphasizes its unpleasantness and the way it re-introduces a form of serfdom, creating a class of people whose freedom is limited by this system.) For another thing, neither Bernstein nor Furman directly addresses the fact that universal basic income would vastly expand the number of people with disposable income for the first time, much more vastly than needs-based programs do. Most of this money, in turn, would go straight back into the economy, rather than into the ever-inflating bank accounts of the ever-fewer, ever-wealthier wealthiest individuals who are now gobbling up an ever-larger share of the economic pie. Our targeted redistribution system has been entirely unable to resolve this inefficiency, and in fact, may exacerbate it.

The side arguing in favor of the motion, which, as I’ve already mentioned, I’m more sympathetic to for aforementioned reasons, does not, in the end, convince the audience. They’re handily defeated, as the side arguing against the motion not only convinces most of the undecided but also wins over some of the basic income supporters. I suspect that Murray hurts his side a bit by spending too much time on arguments that I think are beside the point, such as whether more people could afford to get married (it doesn’t have to be expensive!) and on very subtle, not-very-well expressed arguments that were lost among the rest. But I would like to hear another major debate in which basic income is supported by stronger arguments, more convincing answers to objections, and most of all, better evidence. As Stern points out, there are small-scale and short-term experiments in basic income happening all over, in Alaska, Finland, and Toronto, for example, but the results are not in yet. I agree that such a major social program should be rolled out with some caution, given the potential fallout from unforeseen as well as foreseen potential side effects. But perhaps smaller experiments can’t reveal the benefits that a complete reinvention of a large economy would reveal, especially if effectiveness is entirely a matter of scale. For example, such a well-balanced, sturdy, and beautifully functioning thing as a termite mound couldn’t happen without an incredibly large number of factors contributing, namely the weather, millions of termites, many square miles of dirt, and so on. If you took a small pile of dirt and a small number of termites, a well-functioning termite mound would not result.

Our American re-invention of government was another such experiment founded on the idea that people can govern themselves and on the ideal of universal human rights (the ideal, mind you, not yet the reality). Many societies before and for some time since had tried to correct abuses and oppressions with one reform here, one reform there, or with a wholesale chaotic and violent overthrow after societal cohesion had already collapsed through famine and extreme corruption (such as, famously, the French Revolution). But it took a large number of fair-minded people to come together and lay the foundation for an entirely new system of government based on the ideal that all human beings have the right to life, liberty, and the pursuit of happiness, or as John Locke originally formulated it, life, liberty, and property. Or in the case of universal basic income, to actual property.

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, supported by patrons and readers like you. Please offer your support today!

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Sources and Inspiration:

Labor Theory of Property.” Wikipedia, The Free Encyclopedia

Locke, John. Two Treatises of Government, 1689

Paine, Thomas. Agrarian Justice, 1796.

Paine, Thomas. The Rights of Man, 1791.

The Universal Basic Income Is The Safety Net Of The Future. Intelligence Squared U.S. Debate, March 22, 2017

Xerxes and Demaratus on Tyranny, Liberty, and the Law

Relief of the Persian king Xerxes (485-465 BC) in the doorway of his palace at Persepolis

Relief of the Persian king Xerxes (485-465 BC) in the doorway of his palace at Persepolis, public domain by O. Mustafin via Wikimedia Commons

I’m now reading Book Seven of Herodotus’ Histories which tells the story of Xerxes I of Persia and the second invasion of Greece, which he led to avenge the defeat of his father Darius, who led the first. Darius was defeated at the battle of Marathon when the Athenians and their allies the Plataeans, badly outnumbered, managed to drive away the Persians. In this story, I came across another interesting exchange I’d like to share with you.

After reviewing his massive forces, Xerxes calls for Demaratus, a former king of Lacedaemon (city-state of Sparta) who had defected to Persia after being deposed by a rival. He asks Demaratus if he believes that his fellow Greeks will dare oppose his invasion considering the size and wealth of the new Persian army. After all, Xerxes asks, ‘How could a thousand men, or ten thousand, or even fifty thousand come to that, possibly stand up to an army the size of mine, when all of them enjoy a similar degree of liberty, and have no one man in command?… Just perhaps, were they like us in having one man set in authority over them, they might indeed be prompted by their dread of him to conquer their own instincts, and under the compulsion of the whip to advance against a force much larger than themselves. Left to their own devices, though, there is no way they will do either of those things.’ (Histories 7.103)

Xerxes is speaking here of the land of Athens and Lacedaemon, cradle of democracy, a novel form of government at the time. Many of us moderns who are raised in societies which inherited that spirit of government would respond: ‘But of course! A free people who participate in their own government have a stake in the outcome of public enterprises. Therefore, in war or peace, free people have a reason to care about their outcomes and to be personally motivated to succeed, because the success belongs to each individual as well as the society. Those who are tyrannized and enslaved, however, have no personal stake in the outcome, and fear only motivates one to do the minimum needed for survival. Indeed, fear and resentment of tyranny can motivate the people to undermine the efforts of the tyrant, and to defect to another state at the first opportunity.’ I expected Damaratus to give some such answer.

But Damaratus takes a different tack. Though he begins by citing the courage and martial discipline of the Greeks, he tells Xerxes the main reason he believes the Greeks will stand up to him whatever the size of his army. They’ll resist, he says, because ‘Free as they are, you see, they are not altogether free. Set over them as their master is the law – and of that they are more terrified than ever your men are of you. Certainly, they do what it commands them to do – a command that never alters.’ (7.104)

I think it fascinating that Damaratus uses the expression ‘terrified’ when he describes the Greeks’ attitude to the law. I consulted two other translations and it used the word ‘fear’. I wonder: is this a fear or terror born of deep respect and awe, such as that due to the gods or nature itself? Of fear of their fellow citizens for breaking the social contract or upsetting the natural order of things? Why fear or terror? Then I realize: perhaps he uses this term because he wants Xerxes to understand what he’s saying, and the only thing Xerxes can imagine inspiring obedience is fear and terror. But it’s interesting that he holds on to that idea. After all, Xerxes knows that his father learned otherwise, and the hard way at that. A free

Or, do you think Damaratus means just what he says? That it’s possible that an otherwise free people can actually have a fear of the law itself? It’s not too far of a stretch, after all, that a religious, god-fearing society could fear something else that’s abstract which imposes order and its will on the world.

Or, it could be that Damaratus is talking about the fear of the Greeks betraying their own selves as living embodiments of the law. After all, if adherence to the law is instilled as a sort of sacred duty to the very thing that makes us both free and fully realized as human beings, then the thought of transgressing the law is as terrifying as the thought of destroying our very selves, of becoming something less than human. I suspect Damaratus is talking about something like this.

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, entirely supported by patrons and readers like you. Please offer your support today!

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Sources and inspiration:

Cartledge, Paul. ‘The Democratic Experiment‘. From History at BBC.com

Herodotus. Histories. Translated by Tom Holland. New York: Viking, 2013

Herodotus. Histories. Translated by A. D. Godley. Cambridge: Harvard University Press, 1920, from Tufts.edu

Herodotus. Histories. Translated by G. C. Macaulay, 1890, from Project Gutenberg.