The Problem With Free Speech Arguments

And Why I Disagree With John Milton

Free speech! Censorship! Marxists! Universities!

So far as I can tell, the contemporary debates about censorship and free speech have been ongoing for at least sixty years and have scarcely developed beyond slogans. We can improve these debates if we articulate why we should care about free speech at all, and the answer will depend on some underlying moral or political value.

In these debates, most people turn to John Milton’s Areopagitica and John Stuart Mill’s On Liberty to answer these questions. These idiosyncratic English Protestants defend free speech as an instrument to finding the truth. Writing in 1644, John Milton made his case against censorship:

For books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are; nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them. I know they are as lively, and as vigorously productive, as those fabulous dragon's teeth; and being sown up and down, may chance to spring up armed men. And yet, on the other hand, unless wariness be used, as good almost kill a man as kill a good book. Who kills a man kills a reasonable creature, God's image; but he who destroys a good book, kills reason itself, kills the image of God, as it were in the eye. Many a man lives a burden to the earth; but a good book is the precious life-blood of a master spirit, embalmed and treasured up on purpose to a life beyond life. 'Tis true, no age can restore a life, whereof perhaps there is no great loss; and revolutions of ages do not oft recover the loss of a rejected truth, for the want of which whole nations fare the worse.

It’s impossible, he continues, to separate good from evil, and it’s necessary to understand both:

Good and evil we know in the field of this world grow up together almost inseparably; and the knowledge of good is so involved and interwoven with the knowledge of evil, and in so many cunning resemblances hardly to be discerned, that those confused seeds which were imposed upon Psyche as an incessant labour to cull out, and sort asunder, were not more intermixed…

Since therefore the knowledge and survey of vice is in this world so necessary to the constituting of human virtue, and the scanning of error to the confirmation of truth, how can we more safely, and with less danger, scout into the regions of sin and falsity than by reading all manner of tractates and hearing all manner of reason? And this is the benefit which may be had of books promiscuously read.

John Stuart Mill believes that, given we are fallible and “few think it necessary to take any precautions against their own fallibility,” we ought to admit that a seemingly false claim might actually be true, or at least have a grain of truth. Even when a claim is obviously false, we ought to allow its dissemination so we can better understand why we think it’s false.

In his view, “wrong opinions and practices gradually yield to fact and argument.”

Writing during the English Civil War, John Milton was more strident and optimistic:

And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter… For who knows not that Truth is strong, next to the Almighty? She needs no policies, nor stratagems, nor licensings to make her victorious; those are the shifts and the defences that error uses against her power.”

I tremble as I write this: I disagree with John Milton.

(photo source)

These arguments from the Johns are sometimes associated with the metaphor of the “marketplace of ideas,” whereby the competition of claims inevitably leads to the victory of the truth. Are there any reasons to think that the truth will inevitably win? And why would a “marketplace,” or an absence of restrictions, make this more likely?

In fact, I doubt that Mill himself had absolute optimism about unrestricted debate:

But it is not on the impassioned partisan, it is on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect.

Mill is clear that his arguments for free speech assume a certain amount of education and maturity among speakers and listeners. His “Harm Principle” (that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”) is meant to apply:

“… only to human beings in the maturity of their faculties… For the same reason, we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage. The early difficulties in the way of spontaneous progress are so great, that there is seldom any choice of means for overcoming them; and a ruler full of the spirit of improvement is warranted in the use of any expedients that will attain an end, perhaps otherwise unattainable. Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one.”

Disciples of Mill typically ignore this caveat or attribute it to his Victorian racism (but note that he thought medieval Europe was similarly underdeveloped). For Mill’s free speech argument to work, one must assume that, in the age of the internet, the people engaged in public discussions are mostly rational and can evaluate evidence impartially. Does anybody believe this? A glance at any political discussion will reveal how quickly people become intolerant and conformist; our rational powers are seriously limited and even cause us to deceive ourselves.

Some have been deceived to think that the “marketplace” metaphor is a good one. I suppose it tries to establish a link between how “free markets” efficiently spread information about various goods and how a “marketplace” might do the same for ideas. But this doesn’t guarantee the success of the “optimal” product or true idea: at best, it only guarantees efficiency – efficiency dependent on conditions of perfect, idealised competition which might never be obtained in the real world.

In the real world, few people assume that unregulated speech is the best instrument to find the truth. As Alvin I Goldman and James C Cox highlight in a stimulating article, our major truth-finding institutions do not rely on this principle.

Law courts are heavily regulated. In the words of Messrs Goldman and Cox:

Judges allow attorneys to present only relevant evidence (or what they deem relevant, at any rate), whereas speakers in the marketplace may present any kind of evidence or rhetoric that suits their fancy. Courts require parties to authenticate their evidence, another constraint standardly missing in the marketplace. Further, in ferreting out evidence from a witness, a judge may direct a witness to answer certain questions, on pain of being cited for contempt…

Courts try to preclude the audience from getting messages that are "prejudicial" or "misleading," whereas the marketplace is filled with messages of precisely this character. For this reason, too, the marketplace may be more of a breeding ground for false belief.

It’s revealing that, especially in the United States with its fabled First Amendment, the rules of evidence are based on a strong doubt about the ordinary person’s capability to discern the truth unless speech is carefully controlled.

Similarly, the “free speech on campus” argument goes awry, claiming that there’s a Marxist conspiracy to limit free speech by censoring and suppressing particular viewpoints. I won’t mention that Marx’s earliest writings have sharp arguments for press freedom and against censorship – I’ll just suggest that this is a strange way to think about how a university should function: there is no “free speech” on campus and there never was. Obviously, people should be able to teach and study without coercion or intimidation from mobs and bullies, but if there are going to be any standards then “academic freedom” can’t justify everything. If students take out large loans to study, say, history, and the professor of that subject spends the whole term talking about his garden, who would defend him on “free speech” grounds? Academics and teachers are selected for their expertise: not everyone is allowed to teach, and even those who are shouldn’t lecture about things outside their subject.

What about research? Scientific, professional, and academic journals – considered the most reliable forums for discovering the truth – are heavily regulated. Editors and referees impose strict standards for publication: people lacking the right knowledge and expertise have no chance of getting published, and even accomplished researchers get rejected.

Now, this is not an argument for the infallibility of the legal or peer-review systems. I’m only trying to highlight why I think the “marketplace of ideas” argument is naïve. There is no reason to think that “free speech” will necessarily promote the best ideas or weed out false ones. If that were the case, it would be hard to explain why bad ideas keep recurring. (There are probably more flat-earthers now than there were a thousand years ago.)

Nor am I arguing for regulation or censorship. I think people are right to distrust the government in this domain: sadly, when it comes to public debates, it seems like our choice is between a cesspit and a Stasi. Yet, it is curious that we don’t trust the government to regulate speech but do trust the government to hire and train the police. We even trust the government to decide when to declare war – and it’s in this area that the “marketplace” of ideas failed to fulfill its promised regulatory function over twenty years ago. We still live with the consequences.

THE IRAQ WAR

During foreign policy debates in 2002-3, defenders of a war with Iraq made (at least) four claims about Saddam Hussein:

1. He was reckless, aggresive, and would do anything to kill Americans regardless of the risk to himself or his country.

2. He was cooperating with al-Qaeda and even had a hand in the 11 September attacks.

3. He was close to acquiring nuclear weapons.

4. He had chemical and biological weapons he was prepared to use against American troops and civilians.

These claims, repeated by the Bush administration, were almost completely unfounded. All the information needed to refute them was known before the war.

Even before Colin Powell’s speech to the UN Security Council on the 5^th of February 2003, US intelligence officials complained that the evidence did not support the Bush administration’s claims.

No evidence? No worries! The governments’ massive marketing campaign to sell the war (aided by journalists, including the liberal darling Christopher Hitchens) was a great success.

Besides inflating the threat posed by Hussein, Iraq hawks also minimised the costs and risks of the war, arguing that the post-war occupation would be short and establish a pro-American secular democracy. How has that turned out?

And who was punished for this failure? Not the charlatans and mountebanks, whose chicanery got us into the war – they walk free and fill their coffers on the lecture circuit. It is Julian Assange who suffers and now faces 175 years in prison – he who exposed the iniquity and torture and civilian deaths in Iraq and Afghanistan.

He has been held without trial in a maximum-security prison for almost five years. How often did the free speech warriors defend him? How often did the human rights obsessives speak for him? How often did those reared on the ANZAC legend defend their fellow Aussie? For Mr Assange, the “marketplace of ideas” has been as useful as a chocolate teapot.

Why did the “marketplace of ideas” fail so badly?

Chaim Kaufmann’s paper “Threat Inflation and the Failure of the Marketplace of Ideas: The Selling of the Iraq War” suggests five reasons:

1. The Bush administration manipulated how issues were framed and debated.

2. It selectively publicised intelligence analyses favourable to its objectives while suppressing contrary information.

3. The White House had authority and foreign policy credibility, especially compared to independent analysts.

4. The opposition (parts of the press, independent experts, dissenting politicians, international agencies) lacked the power to properly influence debate in a way that the “free market” theory suggests.

5. The shock of the 11 September attacks may have reduced public scepticism about the level of the threat and the proposed “solutions.”

Of these five reasons, only the last is unique; the other four are endemic to American democracy (and other liberal democracies).

You don’t need to read the Frankfurt School theorists to know that large governments and corporations produce “wants” and “interests” and actively shape the values and desires of a society. From birth, we are bombarded with indoctrination and propaganda (known as “advertising”) to make us value glitzy products and the idiotic consensus that comes with following trends.

Maybe, after all, the “marketplace” metaphor is the best one: in government and in business, success is more likely if you have the resources to hire an effective marketing team. Disney’s film Aladdin has an important lesson: “whoever has the gold makes the rules.”

The illywhackers acquire pelf, and however much countries applaud themselves for their commitments to free speech and diversity of opinion, their values will tend to match those of the corporations and politicians who buy publicity.

The truth does eventually come out, but only after widespread suffering, impoverishment, and death.