If society doesn’t value the intrinsic worth of open discourse, the right will be irreparably damaged.
“Free speech is not an absolute human right,” Helle Thorning-Schmidt, a member of Facebook’s Oversight Board and former prime minister of Denmark, told Politico today. “It has to be balanced with other human rights.”
We hear similar arguments all the time in the United States. What competing “human right” does Schmidt believe unfettered free expression undermines? Does she believe we have a human right not to be insulted or hated? Does she believe we have a human right to hear only our preferred pronouns? Or a human right to avoid “disinformation?” She does not say.
Years ago, newspapers would defend free-expression rights of Nazis (real ones) who wanted to march in neighborhoods populated by Holocaust survivors. Today, they publish 8,600-word essays making the case that we should stop our “zealous” adherence to the First Amendment. “It’s an article of faith in the United States that more speech is better and that the government should regulate it as little as possible,” Emily Bazelon wrote in the New York Times Magazine headlined “The Problem of Free Speech in an Age of Disinformation” just last year. “But increasingly, scholars of constitutional law, as well as social scientists, are beginning to question the way we have come to think about the First Amendment’s guarantee of free speech. They think our formulations are simplistic — and especially inadequate for our era.”
Bazelon, like many others, prefers Europe’s sophisticated interpretation of the right to free speech — ostensibly protected under Article 10 of the European Union’s Convention of Human Rights — which makes speech contingent on the vagaries, conditions, restrictions of “national security,” “territorial disorder,” “crime,” and protections of “health or morals” of the state, all flexible and arbitrary. In Schmidt’s and Bazelon’s conception, free speech isn’t an inalienable right but rather bequeathed to you by the state. If you behave.
That’s exactly where we’re headed. These days, every new, alleged existential threat to democracy — “white supremacy,” “coups,” “Russian interference,” “hate speech,” and so on – is new justification for limiting discourse.
And a state can regulate speech in numerous ways. If, for instance, the corporate CEOs and cultural elites collude with the government — explicitly or implicitly — to decide how people interact, they engage, functionally speaking, in censorship. And that is exactly what the Biden administration does when it, as Jen Psaki explained to reporters today, “flag[s] problematic posts for Facebook that spread disinformation.”
Anyone who argues for free-association rights of private companies — as I do — should view such a relationship as authoritarian. These companies control a huge swath of our interactions. They also spend millions in rent seeking. They do whatever Washington tells them to keep or pass favorable regulations. Government flagging alleged “disinformation” — which can turn out to be perfectly reasonable theorizing, by the way — evokes McCarthyism or Wilson’s The Committee on Public Information. It’s bad enough that tech companies and publishers and media organizations no longer feel any civic responsibility to uphold liberal values, systemically inhibiting the ability of reasonable people to engage in a national debate. Then again, politicians should never be in a position to dictate what disinformation is or isn’t. If we want to believe that a cabal of satanic pedophiles is using chemtrails and nanotechnology in our vaccines to control the world, that’s our business. The state doesn’t get to dictate the veracity of our statements. Most of our recent presidents couldn’t string two truthful sentences together. We flag them, not the other way around.
Free expression is a liberal value, whether it’s codified in law or not. If society doesn’t value the intrinsic worth and neutral value of open discourse, the right will be irreparably damaged. Nearly every nation’s constitution features legal protections for free speech, but no one — despite some noteworthy failures — has obsessively protected those ideals like the American people. And yet you can just sense that those days are coming to an end.