Because We Love Freedom of Speech


Freedom of Speech is not some magical thing: like all freedoms in politics, there’s got to be a justification for it. In the case of the US – on paper, at least – individual liberties are defined in terms of, “other than the things the state says you cannot do, you’re free.”  So, because the state has not legislated that I cannot dye my hair blue, I can dye my hair blue. Freedom of speech is specifically called out, though, as a positive freedom. It’s not that “because the state has not told you what you can’t talk about, you can talk about anything else” – it’s specifically stated:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That’s pretty clear. Though I’d rather religion was at the end of the sentence somewhere, but we need to remember that in the broader context of the US’ history, freedom of worship was a biggish deal. Freedom of speech was also a big deal. I’m not into trying to interpret “what the founding fathers meant” but I feel that the 1st Amendment ties free speech with political activity, i.e.: the right to assemble peaceably and petition. This all makes sense in context; at the time the US was founded, political tracts like Thomas Paine’s “Common Sense” were widely distributed and read – in spite of illiteracy, some estimates I’ve seen are that over 60% of the colonial population had read Paine or heard Paine read aloud. That beats Game of Thrones pretty handily. Political speech needed to be protected because elsewhere in the world, the King could simply order you to the Bastille if you made the wrong snarky remark.

bastille

La Bastille prison, circa 1780

Voltaire, one day, was walking in a park in Paris when he encountered the Regent. Having recently written the “Henriades” – a poem making fun at length of the Regent, implying the Regent planned to usurp the throne – there was some awkwardness as Voltaire bowed sweepingly and the Regent commented that Voltaire was quite a wit. Voltaire agreed, and the Regent said, “I wager I can show you something you have never seen before.”
“Ah, what is that, Sire?” returned Voltaire.
“The inside of The Bastille.”
And so it was that Voltaire wound up in prison for the first time in his life. Upon his release the Regent gave him a payment as a sort of apology and stipend and Voltaire wrote him a nice letter thanking him for the money – and his freedom – and observed that “Now that you have taken care of my financial needs, I would be happy to arrange my own lodging from now on.”

You used to be able to find these on ebay in the 90s...

My Paine. You used to be able to find these on ebay in the 90s…

Paine wound up in prison as well, during the French revolution, and was in line for a visit to Place Nation (where the guillotine stood) but the government collapsed and the terror ended just before his number came up.

Freedom of speech was important when the US was founded, because political speech was dangerous. It was the sign of a tyranny or monarchy when political speech was restricted.

I have long felt that the freedom of political speech is much more important than other speech (be it religion, or blog comments, or trolling, or whatever) – because there’s more at stake: if you believe that a government gains its authority through the consent of the governed, and represents their will, you simply cannot restrict free speech because you are eradicating the foundation of government. How can you represent the will of the people, if the people cannot express their will?

I despise Twitter, but – this should worry you: the Department of Homeland Security is trying to use its warrant powers to de-anonymize an anonymous Twitter account that has been highly critical of the Trump administration.

This is pure abuse of power. [intercept] It is treason. It is not over-dramatic to say that this challenges the legitimacy of the state:

On March 14, 2017, Defendant Adam Hoffman, an agent within U.S. Customs and Border Protection, transmitted to Twitter by fax a summons, ordering Twitter to produce certain records pertaining to the @ALT_USCIS account. The CBP Summons invoked as authority 19 U.S.C. § 1509. It was signed by Defendant Stephen P. Caruso, a CBP Special Agent in Charge based in Miramar, Florida. A true and accurate copy of the CBP Summons, in the form it was received by Twitter, is attached as Exhibit A.

43. The CBP Summons states that Twitter is “required” to “produce[] for inspection” “[a]ll records regarding the [T]witter account @ALT_USCIS to include, User names, account login, phone numbers, mailing addresses, and I.P. addresses.” The purpose of this request appears to be, and the effect of Twitter’s complying with it likely would be, to enable or help to enable Defendants to pierce the anonymity of the person or persons who established and use the @ALT_USCIS account. [intercept]

Only a “failed state” needs to silence its critics. (Especially when its critics are stuck using a mediocre vehicle like Twitter.)

The absolute right of political free speech must include anonymity. “Voltaire”, for example, was a pseudonym – he used many during his life – often to launch scathing attacks against the church, or philosophers he disagreed with.* When political free speech begins to go anonymous that’s a danger sign: because in a government where the people are confident in their right of speech, anonymity is optional – but as soon as repression is suspected, it becomes necessary. That the President of the United States is a petulant, small-hearted, small-handed, and vengeful ignoramus means nothing – but, that he uses his power to settle personal scores places him in the company of historical figures like the Regent – worth forgetting. We remember the Voltaires.

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Game of Thrones has reached ~3 million people, a measly 2% of the population. Paine, FTW

*Voltaire was kind of a troll. But what a troll! He set the benchmark by which all other trolls should be judged.

Let us hope that Trump remains mostly forgettable and eventually just becomes a joke, like Dick Cheney or Richard Nixon.

Comments

  1. polishsalami says

    I’m dismayed when liberals and social justice people repeat that “only the government can censor” line, not least because it’s a favourite talking point of right-wing libertarians. For the record, the argument goes like this:
    The internet is private property > You have no free speech rights on private property > You have no rights to free speech on the internet. QED.

    This of course means that your opinions would have to meet with approval with whatever corporation(s) some court deemed to be the owner of this thing. Truly an Orwellian nightmare.

  2. komarov says

    Odd, the other day I saw headlines somewhere to the effect that Twitter had ‘won’ that particular dispute. I suppose the case has since gone on to the nth appeal and will continue to wander from court to court until Twitter gives up or the DHS gets what it wants by other means.

  3. Owlmirror says

    Note the update:

    Update: April 7th, 2017, 1:57 p.m.

    DHS has withdrawn its summons, and Twitter has withdrawn its corresponding complaint.

    And was this actually from Trump? I get the impression that the CBP is itself an agency used to having absolute tyrannical rule over anyone crossing the border, and this obvious attempt to infringe on free political speech would have been doomed if they had not withdrawn.

    I suspect that it’s more an example of the emboldening effect from Trump, like the rise in racist attacks.

  4. says

    I was wondering about the Twitter warrant. It seems highly probable that the spooks know, or can find out, that information.

    Was this an attempt at parallel construction? Mere theater? Or, one fantasizes, did the spooks start foot dragging when POTUS wanted to ‘get’ another bureaucrat?

  5. Brian English says

    I’m dismayed when liberals and social justice people repeat that “only the government can censor” line,

    Can’t say I’ve come across this line. Clearly any private organization can tell you to go somewhere else if they want to, you can’t come into my house and piss on my floor without my consent.

    The internet is private property > You have no free speech rights on private property > You have no rights to free speech on the internet. QED.

    It’s hard to tell from your comment if you’re agreeing or disagreeing with this argument. It is however simply true.
    Free speech, as Marcus pointed out above, is being allowed to express your will without sanction from the Goverment. Twitter or whatever is a money making excercise and owes nobody a vehicle to express their views. Again, I’m not abridging anybodies right to free speech, to call out the government, by saying no to using my floor as a latrine. :)

  6. says

    Andrew Molitor@#4:
    I was wondering about the Twitter warrant. It seems highly probable that the spooks know, or can find out, that information.

    I agree – I would expect the spooks to have that information already.

    Was this an attempt at parallel construction? Mere theater? Or, one fantasizes, did the spooks start foot dragging when POTUS wanted to ‘get’ another bureaucrat?

    I think it was two things – both of which disgust me. One, I think it was an attempt to show power: power must be seen to be appreciated. The surveillance state is getting cocky because they have been able to overrun all the constitutional and legal controls against them. My guess is that some underling at DHS thought they’d just make the demand because they could. Two, I think it was some overenthusiastic authoritarian follower who thought to be able to do some little gesture of submission and cruelty and bring their master a mouse to drop at their feet for approval. I think that sort of authoritarian suck-up behavior is going to be a “thing” in many government agencies for the next few years.

  7. says

    Owlmirror@#3:
    I suspect that it’s more an example of the emboldening effect from Trump, like the rise in racist attacks.

    I agree.
    Hey, I like a nice polished pair of jackboots as much as the next guy, but they’re all very excited about being able to strut around. It’s going to make the whole look unfashionable, I think.

  8. says

    polishsalami@#1:
    I’m dismayed when liberals and social justice people repeat that “only the government can censor” line

    I’m always afraid of getting into linguistic nihilism, but I’d observe that censorship is a function of government, therefore only a government can censor. Individuals might variously control eachother’s speech to whatever their ability in whatever circumstances. A citizen might describe that as “controlling speech” or “editing” – for example, I control/edit the speech in this blog.

  9. says

    The line about censorship generally arises when some institution declines to host some speaker or another. Censorship! cries one side, Only the Government Can Censor! cries the other, with (usually) the deliberate intention of taking attention away from the fact that, whatever it’s *named*, someone is controlling someone else’s speech.

    It is, I think, a fairly sticky area.

    On the one hand you mayn’t enter my home and lecture me. But that is mainly “you mayn’t enter my home”, the lecturing is irrelevant. If I invite you in to my home, and you lecture me, I have the right to order you out. But that is mainly I always have the right to order you out, any time.

    Where it gets tricky is when I have arguably waived that right by, say, contracting with you to enter my home and lecture me. At this point I can probably still order you out, but I probably need to make you whole per the contract, which can get vague and, potentially, expensive, depending on the value the speaker was going to get out of speaking. And, generally, we should try to avoid breaking contracts as a thing.

  10. says

    Andrew Molitor@#9:
    whatever it’s *named*, someone is controlling someone else’s speech.

    Yup. That was why I tried to build my argument on the lines of participatory democracy or social contractarianism.If the idea is that the governed make up the government, and the government is therefore responsive to the governed – in that particular situation I think we can argue that the government is acting undemocratically or violating the social contract if it seeks to control the people’s speech. A government that doesn’t listen to itself is illegitimate.

  11. polishsalami says

    Brian English #5 & Marcus Ranum #8:

    In an egalitarian society, where differences in power relations between individuals were negligible, the “only governments can censor” line would hold more water. This attitude is inviting a type of feudalism, where powerful private citizens and organizations can dictate the political discourse.

  12. says

    @polishsalami I think there is an important distinction that needs to be made there. For infrastructure providers – ISPs, telecom companies, etc – if they start refusing to carry speech they don’t approve of, then I think that does stretch into censorship. But a blog author is not obliged to host your comments, Reddit is not obliged* to host your hate group, Facebook is not obliged* to promote your fake news, Twitter is not obliged* to be a vehicle for your harassment, a newspaper is not obliged to publish your letter to the editor, a university is not obliged to host your speech, and students have every right to protest the speeches it does host.

    So, basically, “the internet” is not private property, but a site on the internet is.

    * Sure, it probably does, but it doesn’t have to.

    (“you” used in the generic sense not at anyone in particular)

  13. EnlightenmentLiberal says

    The internet is private property > You have no free speech rights on private property > You have no rights to free speech on the internet. QED.

    I agree, but I almost never see this phrased properly. Generally speaking, censorship is limited to government entities, and businesses that are regulated (or should be regulated) as common carriers, i.e. the mail service, ISPs. I’d even argue that large internet hosting companies should be bound by similar common carrier rules. This is because I’m a radical Marxist, and I believe that as an entity in society gets more powerful, whether government or private corporation, they generally need more oversight and deserve less rights and discretion.

    I’m still on the fence whether large posting platforms like Facebook et al should be limited in some fashion as to what they can censor.

  14. says

    EnlightenmentLiberal@#13:
    Generally speaking, censorship is limited to government entities, and businesses that are regulated (or should be regulated) as common carriers, i.e. the mail service, ISPs. I’d even argue that large internet hosting companies should be bound by similar common carrier rules. This is because I’m a radical Marxist, and I believe that as an entity in society gets more powerful, whether government or private corporation, they generally need more oversight and deserve less rights and discretion.

    The argument I prefer is that sufficiently large businesses are effectively monopolies, and can collaborate with the government to implement controls on speech that would be illegal/void the social contract if the government attempted them.

    The US government has already bumped up against that line more than I like, by using private spy organizations against citizens, turning banks and providers into spies for the government, etc. Here’s a funny way of putting it:
    – if Facebook must give user information to the FBI, then Facebook is an agent of the government
    – if Facebook is an agent of the government then, like the government, it should not be able to control speech
    – if Facebook is an agent of the government then, like the government, it must assert that it is a public forum; users must be informed that (like when they walk down the street) they are subject to observation and surveillance and Facebook gains all the other legal entanglements of being a public forum: no establishment of religion, no gender or racial bias, equal pay, etc.
    – This would apply to any and all businesses that the government uses as an agent, so Verizon, AT&T, banks, insurance companies… Any business that is covered under PATRIOT or CALEA. I.e.: all of them.

    In other words, there should be serious consequences for the government’s turning phone companies, banks, and social media into its agents.

  15. EnlightenmentLiberal says

    The argument I prefer is that sufficiently large businesses are effectively monopolies, and can collaborate with the government to implement controls on speech that would be illegal/void the social contract if the government attempted them.

    This is also an important way to think about things. I don’t mean to pretend that I have all of my thoughts on this topic clearly thought through, with definite concrete immovable rules. I think that this is one of the most complex areas of liberty and governmental theory. John Stuart Mill himself spent a great deal of text discussing this issue in On Liberty, where he discusses the censorship power of the general public absent governmental force, and IIRC, I was not content with his resolutions.

  16. John Morales says

    Marcus @14,

    In other words, there should be serious consequences for the government’s turning phone companies, banks, and social media into its agents.

    There already is, in principle: the electorate could vote the Government out in the next election.

    (Of course, the idea of an informed and rational electorate is… um, idealistic)

  17. says

    John Morales@#16:
    There already is, in principle: the electorate could vote the Government out in the next election

    That’s another option.
    I like the idea, when dealing with government, that there’s a balancing act established in advance, rather than punitively. “If you want to do A, then you accept constraint B” seems to be a better way to negotiate than “Do stuff, and if we get mad enough we’ll fire you.”

  18. bmiller says

    But if all actors with political power and access to government basically accept the demands of the security state, John Morales’ solution is a bit of a chimera?

  19. John Morales says

    bmiller @18, not a solution, an observation.

    (Note my caveat: “in principle”)

    Political power may be channelled (wielded) by the actors, but it ultimately derives from the masses.

  20. EnlightenmentLiberal says

    To John Morales
    I never liked that excuse. Voting for a rep is very granular. Often there are more important issues. I think that the counter “just vote them out if they do X” is often very unreasonable in the extreme precisely because of that reasoning. In particular, for petty abuses of police power, there’s almost always more important issues that will dominate your decision on who to vote for.

    Voting is not a panacea. We also need the right governmental systems in place to fix the minor issues without needing to resort to the polling booth. We need more systems thinking.

    This is also the basis of my reasoning for why I want a return of civil and criminal liability for cops, with basically zero special immunities for unlawful uses of force, unlawful brandishing of weapons, unlawful arrest, unlawful search and seizures, etc. Too bad I’ll probably never see it, because too many people like their police state, and have bought into the lie “we need to excuse minor abuses and not prosecute police for minor abuses because otherwise the police will be too timid to do their job and society will collapse!”. What a crock of shit.

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