In the New York Times, Emily Bazelon reminds us once again that an enormous number of journalists, law professors, and other academics simply cannot be trusted to defend the First Amendment — and, in fact, that they spend an increasing amount of time coming up with what they believe are new arguments for censorship. In a key paragraph, Bazelon writes that:
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. 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.
These scholars argue something that may seem unsettling to Americans: that perhaps our way of thinking about free speech is not the best way. At the very least, we should understand that it isn’t the only way. Other democracies, in Europe and elsewhere, have taken a different approach. Despite more regulations on speech, these countries remain democratic
There is nothing novel about the arguments presented in Bazelon’s piece. Indeed, they are exactly the same arguments that have always been made by people who would like to be more powerful than they are. And we are by no means obligated to buy into her euphemisms. When Bazelon writes that “democracies, in Europe and elsewhere, have taken a different approach,” or that the “principle of free speech has a different shape and meaning in Europe,” she means that governments in Europe use violence to prevent people from saying things that they don’t want them to say. When she refers to “regulations on speech” she means “censorship enforced by the police.” When she observes that “some liberals have lost patience with rehashing debates about ideas they find toxic,” she means that those people have abandoned freedom of expression both legally and culturally, and, having privately decided what is true and what is false, have decided to ruin the lives of anyone who dissents. When she proposes that “our formulations are simplistic,” she means that people cannot be trusted with the unalienable liberties they inherited, so experts must step into the breach. When she waxes lyrical about the mid-20th century arrangement, during which “broadcasters were held to a standard of public trusteeship, in which the right to use the airwaves came with a mandate to provide for democratic discourse,” she means that she would like the government to decide which broadcasts counted as a “public service” and that the public would be better off if given a “choice” between three different versions of the same thing. When she suggests “our way of thinking about free speech is not the best way” she means that we should tear up the First Amendment. She can put it how she likes; the answer is No.
All in all, Bazelon provides only two examples of what happens when the First Amendment isn’t applied rigorously in the United States, both of which should have been sufficiently horrifying to have made her reconsider her premise:
From 1798 to 1801, more than two dozen people, including several newspaper editors, were prosecuted by the administration of President John Adams under the Alien and Sedition Acts, which made “malicious writing” a crime. Protesters were also jailed for criticizing the government during World War I.
Whether Bazelon thinks these incidents were good or bad is unclear. Either way, she concludes with the preposterous suggestion that free speech of the sort we enjoy in the United States may, in fact, be an enabler of fascism. Herbert Marcuse has a good deal to answer for, but he’s still no master of disguise.