Is free speech overrated?

Prof. Posner is stirring things up this week by suggesting that we Americans take our freedom of speech way too seriously.  It's a parochial attachment, he argues, and insensitive to the feelings of the rest of the world.  "Americans need to learn," he says, "that the rest of the world — and not just Muslims — see no sense in the First Amendment."

And how's that working out for them?  But to return to Posner's supporting argument, it seems to be this:  the First Amendment must not be that important, because until the 1960s it didn't stop the government from cracking down on seditious speech by Communists, etc.  Also, freedom of speech is not a legitimate concern for conservatives, because in the past they've argued that some kinds of obscenity undermine the public order; conservatives took interest only when political correctness got out of control in the 1980s.  When liberals figured out that freedom of speech is just another way of letting people "disparage" the ideas of others, conservatives countered that the "marketplace of ideas" would sort out the good ideas from the bad.  But we all know that some ideas are irretrievably bad, so there's no point in permitting their expression, especially since we also all know from sad experience that they won't go away even when exposed to sunlight.  What's more, America during the Cold War failed to uphold the Constitutional principle of state's rights under pressure from enemies who exploited our civil rights abuses for their own purposes of propaganda, so why should we now uphold the Constitutional principle of free speech in the face of worldwide animosity?   After all,
It is useful if discomfiting to consider that many people around the world may see America’s official indifference to Muslim (or any religious) sensibilities as similar to its indifference to racial discrimination before the civil rights era.
In the technical terms employed by those of us, like myself, who benefited from formal Constitutional training, this is balderdash.  Posner seems unable to think through some critical distinctions.  One is the difference between private curbs on behavior, on the one hand, and official government mandates, on the other.  There are many things I'm quite free to say legally that I have no intention of saying, for my own private reasons, including kindness, respect, or discretion.  The point is that someone has to decide when those reasons are good enough, and I insist that that person be myself, not my local speech-control bureaucrat.

There also is a critical difference between words and action.  Even supposing I felt a need to explain my Constitutional consistency to skeptical residents of other countries, I'd have little difficulty explaining why I might feel more qualms about pre-civil-rights-era racial discrimination than about my country's official indifference to anyone's religious sensibilities.  One involved violence and active injustice that deprived people of employment, education, and sometimes life and limb.  The other involves words and thoughts that hurt someone's feelings.

I'll add one more distinction that is fuzzier than it should be in Posnerland:   the difference between what we decide for ourselves and what the Muslim world abroad may think about it.  If Muslim leaders are willing and able to filter out our messages at their borders, that's up to them.  We don't need to become their agents in that censorship project.

We've had some form of freedom of speech so long in this country that coddled professors can forget the lessons of what it was like before the American War of Independence.  There was a reason our forefathers didn't trust the government to decide who should be locked up for expressing unacceptable ideas.  For one thing, they didn't much like the idea of life under a government that looked and acted very much like an Islamocracy.  Leaders naturally dislike being criticized.  Leaders also have to have some power, or they can't lead.  That's a dangerous combination, just the kind of thing the Constitution is there to keep a lid on.


MikeD said...

You're FAR too easy on Posner. He is a brainless, self-absorbed twit of the first order. He lives in a bubble and doesn't even seem to realize that he could not make his living without the protections the First Amendment guarantees him. He sneers at it from within the walls of its protection. As I stated in my own personal rant against this piece, if he wishes to live in a country where blasphemy is a crime, he is free to do so. And if he wants to stay in this country and spout his drivel, the First Amendment allows him to do that too. Not if he gets his way, of course, but don't go confusing the poor dear about it... bless his heart.

Anonymous said...

So, since I cannot meet 100% of the standards G-d set for His children, I should stop trying to be what G-d calls us to be. Hmmm. Well, that's certainly what it sounds like the professor is arguing: if an individual or country cannot or chooses not to be perfect, then there is no point in trying and the rule can be dismissed. (Yes, I'm oversimplifying.)


E Hines said...

Maybe it would help if people who object to free speech spent a year living on the economy in Iran, or Russia. Or the People's Republic of China. Or Somalia. Or....

Maybe they'll learn the value.

Or may be they'll feel so much at home, they'll stay.

(Yes, I'm oversimplifying.)

Not by much.

Eric Hines

E Hines said...

I wonder how Judge Posner feels about this remark by Democratic Presidential Candidate Barack Obama in a 60 Minutes interview last Sunday: a lot of these places—the one organizing principle—has been Islam. The one part of society that hasn't been controlled completely by the government.

Grim said...

I'm still thinking that we may need to reconsider at least some limits on proper speech. I am thinking of it in the context of the Duchess rather than the Prophet, but there are certain limits that have recently begun to seem reasonable to me.

What I don't think we can reasonably limit is political speech. This movie, whether you like it or not -- no one does -- is clearly an example of political speech. It's not just 'slander,' it's a complaint about the treatment of Coptic Christians and Jews by Muslims. The satirical treatment of Muhammad is, however grotesque, tied up with the political statement.

E Hines said...

I'm still thinking that we may need to reconsider at least some limits on proper speech.

Sure, just not by government. I said my piece on the matter at the Duchess link you provided.

Eric Hines

Texan99 said...

I think there should be lots of limits on free speech. I just don't think any of them should be enforced by the government.

One of the primary reasons we adopted the First Amendment, way back when, was to protect religious as well as political expression. But the Amendment itself is not limited to those two areas, and I'm glad it's not.

Texan99 said...
This comment has been removed by the author.
MikeD said...

I'm with Eric and T99. I will support private citizens shaming and embargoing offensive speech of all stripes. I think that's the proper response to such. And I would even go along with criminalizing the publishing of photos and documents that were obtained through illegal means (after all, we require the government to discard evidence that was illegally obtained). Fruit of the poisoned tree and all that. And maybe (I'm still wrestling with this) maybe allowing the criminalization of intentional lies with regard to military service (as it is already illegal to pretend to be a public safety officer or a federal officer, I don't see how falsely claiming military service doesn't fall under the same rubric). But that's about the extent of allowing government interference with free speech. After all, once you open the door to allowing the government to punish one type of speech, it becomes a matter of time before they start expanding what "unreasonable speech" includes. And I do not trust government to ever restrain itself.