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Free Speech: Use It or Lose It

"We're from the government and we'll have to revoke your blogging license if you keep spreading too much 'misinformation.'"

A few years ago, such a warning would have seemed far-fetched. But recent developments threaten to turn this from bad science fiction into grim reality. If bloggers and independent journalists wish to avoid this nightmare, we must speak out now to defend freedom of speech -- and we must defend it for the right reasons.

Recently, independent journalism and blogging have come under attack on multiple fronts. Congress is considering a new DISCLOSE Act that could force bloggers to file reports with the government stating whether their political speech was coordinated with efforts by corporations or labor unions -- whereas traditional news media such as newspapers, magazines, and TV/radio would be exempt.

Special-interest groups have recently petitioned the Federal Communications Commission to launch a probe against "misinformation" and "hate speech." The Michigan state legislature is considering licensing journalists to ensure that they are "credible" and of "good moral character." The Federal Trade Commission is considering new subsidies and tax breaks for certain categories of traditional journalism, while penalizing new media by imposing additional taxes on iPads and internet service providers -- a move that Mark Tapscott warns would "put government in position to define who gets to report what and how."

Some of these attacks are in response to the recent Supreme Court decision in Citizens United v. FEC, protecting corporate free speech. But as attorney Steve Simpson (who helped file an amicus brief in the Citizens United lawsuit) has written in a detailed article on the history of campaign finance laws, these are just the latest skirmishes in a long-running intellectual battle over two vastly differing conceptions of freedom of speech. The laissez-faire or "classical liberal" approach regards freedom of speech as a fundamental individual right that government must protect, whereas the "progressive" approach views speech as worthy of protection only insofar as it helps promote the "public interest."

On freedom of speech, the First Amendment to the U.S. Constitution is very clear: "Congress shall make no law ... abridging the freedom of speech, or of the press."

For classical liberals, this means the right to express one's ideas without government censorship. The government could not suppress speech, regulate its dissemination, require licensing before one could state opinions, or promote one form of speech over another.

This is just an application of the broader principle that the only proper function of government is to protect individual rights. Unless we violate others' rights through force, fraud, or threat thereof, we should be left free to live according to our best rational judgment -- including the freedom to express our ideas without government interference. (Speech that violates others' rights, such as fraud or death threats should not and would not be protected.)

Equally important, the right to free speech does not mean the right to the means of speech, such as an alleged "right" to newspaper space or broadcast time. A private publisher has no obligation to allow you to express your views on his pages. There is no such thing as a "right" to an audience. Private parties who choose not to publish your ideas are not engaging in censorship; only the government can commit censorship.

But as Steve Simpson noted, the early 20th century Progressives sought to redefine freedom of speech not as a basic right but rather as a privilege to be allowed only if it served the "public good":

Led by intellectuals such as John Dewey and Herbert Croly, the progressives actively opposed the limited, constitutional government established by America's founders. ... They opposed private property and capitalism, sought to redistribute wealth, and believed that inequalities among citizens justified overriding constitutional limits on government action. Because businesses and the wealthy often lobbied and campaigned against the progressives' efforts, the progressives championed early restrictions on lobbying and campaign spending.

Speech, they said, should be protected only to the extent that it serves the "public interest" — which, in their conception, did not include the interests of businesses and the wealthy. The progressives pejoratively dubbed the interests of businesses and the wealthy "special interests"—interests contrary to the "public interest" — and held that the First Amendment did not protect speech in the service of such interests.

These ideas are now part of the academic and political mainstream. Elena Kagan, President Obama's latest nominee to the U.S. Supreme Court and former dean of Harvard Law School, has argued that free speech should be permitted only if its social value outweighs its "societal costs."

Similarly, Yale Law School professor Owen Fiss has stated that the government "may even have to silence the voices of some in order to hear the voices of others. Sometimes there is simply no other way." [Emphasis mine.]

But free speech is important not merely because it facilitates some progressive notion of the "public interest." Free speech is essential to human life. Man's primary means of survival is his mind. In order to live, we must be free to reason and think. Hence we must be left free to acquire and transmit knowledge, which means we must be free to express our ideas, right or wrong.

Classical defenders of freedom of speech understood this crucial point. They held a robust view of both the nature of truth and the rationality of ordinary men. They recognized that in the sometimes-heated debate between differing viewpoints, truth would eventually win out over falsehood. And ordinary men using their rational minds would be capable of deciding the truth for themselves.

In contrast, the Progressives presumed that without government "protection" we would be like children uncritically accepting poisonous ideas fed to us by special interest groups. Hence, the government must instead spoon feed us ideas they deem appropriate. They wish to usurp our responsibility -- and our right -- to disseminate and discuss ideas as we see fit.

Ironically, the speech regulations supported by progressives stifle precisely the smaller voices they claim to be protecting. Only large corporations can afford the lawyers to help them comply with the thousands of pages of political speech laws, whereas it is the smaller grassroots citizen groups that are stifled by such laws.

According to the Institute for Justice, 36 states have laws requiring citizen groups to register with the government before they can talk to their neighbors about politics. Duke University professor Mike Munger has described how such laws have a chilling effect on the political process.

Similarly, it is the independent bloggers and journalists who will be stifled by the proposed DISCLOSE Act, not the entrenched mainstream media. But note how it was the blogging community, not the mainstream media, which took the lead in reporting stories such as the RatherGate scandal, the ClimateGate memos, and the rise of the tea parties.

The numerous independent bloggers covering the ClimateGate disclosures provide a perfect example of how truth emerges when ordinary people are left free to debate and discuss contentious issues. If the bloggers who dissented from the government-backed climate science orthodoxy had instead been punished for spreading "misinformation," would Americans have ever learned the truth?

If bloggers, independent journalists, and ordinary thinking Americans value our free speech, then we must do the following:

  1. We must articulate and defend a proper definition of free speech and of censorship.
  2. We must defend free speech on the proper grounds of individual rights, rather than on utilitarian grounds that it promotes some "social good." This includes defending free speech in principle, even when some people express views we consider odious. For liberals, this includes defending speech they may find bigoted or offensive. For social conservatives, this includes defending speech promoting alternative lifestyles they may find morally repugnant.
  3. We must defend the principle of free speech not just in politics but throughout the full range of our culture — including science, art, and philosophy. We must defend the freedom of individuals to criticize another's scientific or religious views as vigorously as their right to debate banking regulations.

As President Ronald Reagan once warned:

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.

We face a fundamental choice today with respect to our freedom of speech: Use it or lose it.

Which choice will we make?