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© 2006-2017 Andrew Cooke (site) / post authors (content).

Government and Free Speech

From: "andrew cooke" <andrew@...>

Date: Thu, 9 Feb 2006 00:23:28 -0300 (CLST)

The following thoughts were prompted by comments on a thread in
Metafilter.  In that thread the following ideas seemed to be generally

- only anarchists and libertarians believe in the right to free speech

- only governments have an obligation to respect the right to free

These ideas are inconsistent (or trivial) and wrong.  The inconsistency is
clear enough; both anarchists and libertarians want, in simple terms, to
remove government.  So whether or not government allows free speech is
rather a moot point; the wrongness of it all will be developed below.

Some current American libertarians do recognise the need for a government,
but think it should be very strongly curtailed.  To argue that this
implies support for free speech radically overstates the case - the same
logic could be used to claim that libertarians support the right to freely
choose the colour of their cars.

While libertarians define themselves through an opposition to government,
anarchists oppose all power structures.  In an anarchist utopia all are
equal.  That all can speak follows directly.

From these two examples it is clear, I hope, that a right to free speech
is important only when speech can be somehow restricted.  If all can speak
anyway, then no right is necessary.  This was recognised by Joseph Raz -

  One needs no right to be entitled to do the right thing.  That it is
  right gives one all the title one needs.  But one needs a right to be
  entitled to do that which one should not.  It is an essential element
  of rights to action that they entitle one to do that which one should
  not.  To say this is not, of course, to say that the purpose of rights
  of action is to increase wrong-doing.  Their purpose is to develop and
  protect the autonomy of the agent.  They entitle him to choose for
  himself rightly or wrongly.

We are, as this quote shows, talking about rights.  When people talk about
"free speech" they are discussing a right.  A right is something that lets
you act in a way that you normally could not.  It works against existing
constraints.  And, since restrictions are typically enforced by power,
against a power structure.  Without constraints, rights, including the
right to free speech, are ubiquitous, uninteresting - meaningless.

So far there has been nothing in the concept of rights that associates it
only with government.  That connection follows only when the constraints
are restricted to laws.

If laws are all that stop a person from free speech, then the right to
free speech applies only to the source of those laws.  To government.

But it is clear that there are many other constraints in our society.
Government is just one power structure.  Another, often more effective
force is based on wealth.  Correlated with that is power through knowledge
of, and access to, important resources.  In particular, in the case of
speech, to knowledge of, and access to, media.

And, for a moment, I want to return to that Metafilter thread, where a
group of people - the local technical elite - reach the happy consensus
that they are quite within their rights to censor what other people say. 
The "right" to free speech had little weight there.

Which brings us to the crux of the matter: who is responsible for
guaranteeing these rights?  Is it the government?  Do they enshrine rights
in law and then explain and enforce those rules?  That would certainly
make life simple - we would simply follow the rules.

Unfortunately life is not so simple.  We have already seen that rights are
defined in opposition to power structures.  Those involved in powerful
systems have a vested interest in propogating and extending that power. 
It is a simple fact of life that they will resist ideas that weaken their

And, as we have also seen, those with power have little need for rights. 
Rights are for the weak.

So is it sensible to rely on the powerful to guarantee rights?  When they
neither need nor want them?  The idea that the government is solely
responsible for rights is both naive and dangerous.  For rights to be
useful, we need to embrace them in common culture.  We - the weak, the
powerless - need to weave them into the fabric of our lives.  This is the
only way, through mass recognition, that we can hope to guarantee that
they will still be around when we need them; even as we hope we will never
have that need.

We must all respect rights.  For our own protection.

There is one final issue I was hoping to address here, and that is whether
rights can be compromised.  As we have already seen, the whole basis of
rights is that they allow you to do something you should not.  That is the
fundamental guarantee they provide and the price we have to pay for the
good they bring the community.

So it is not enough to argue that, because something is wrong, the right
should be denied.  This contradicts the basic meaning of a right.

To deny a right requires something worse than "wrong".  There is an
obvious parallel with the concept of "Supreme Emergency", used by Michael
Walzer to justify war.  And, in practice, war is strongly associated with
a loss of rights.

The decision whether a web link to holocaust deniers consistutes a supreme
emergency is one I will leave as an exercise for the reader.

Oh, and the thread URL -


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