I’d been avoiding Eric Posner’s recent Slate article, “The World Doesn’t Love the First Amendment,” because I suspected it was unprincipled, provocative linkbait with little intellectual content. I was right:
We have to remember that our First Amendment values are not universal; they emerged contingently from our own political history, a set of cobbled-together compromises among political and ideological factions responding to localized events. As often happens, what starts out as a grudging political settlement has become, when challenged from abroad, a dogmatic principle to be imposed universally. Suddenly, the disparagement of other people and their beliefs is not an unfortunate fact but a positive good. It contributes to the “marketplace of ideas,” as though we would seriously admit that Nazis or terrorist fanatics might turn out to be right after all. Salman Rushdie recently claimed that bad ideas, “like vampires … die in the sunlight” rather than persist in a glamorized underground existence. But bad ideas never die: They are zombies, not vampires. Bad ideas like fascism, Communism, and white supremacy have roamed the countryside of many an open society.
Three observations. First, all universal principles initially arise “contingently” in somebody’s “political history.” That doesn’t mean they aren’t broadly applicable. (See any number of UN declarations — they all arise out of the political process, but they still aspire to state some common truths about what it is to be human.) And even if it couldn’t be shown that free speech is as close as the political world can come to an absolute good, so what? It’s ours, it represents our idea of the noblest principle to which we can aspire — why should we shrink from it just because other people don’t like it?
Second, Posner is being willfully obtuse about why we don’t allow the government to outlaw Communism or white supremacy. Once you acquiesce to outlawing communist speech, you acquiesce to outlawing any speech that the majority agrees is a “bad idea” — or worse, any speech that some judge thinks is a bad idea. Look, I get it. Tinkering with the world, promoting peace and harmony — it’s always tempting when you’re on top. But when political circumstances change, who will pick up the tools of oppression you’ve left lying around?
Finally, and most importantly, it’s far too easy for a ban on advocating a bad idea to become, de facto, a ban on discussing the idea. And that can make the bad idea harder to fight. Take white supremacy. For the most part, white supremacy is no longer about lynchings and race riots. It’s about ideas — most often in the form of unchallenged assumptions. And (I speak here as someone who goes to an extremely liberal law school) it’s hard enough as it is to get people to openly speak about those assumptions and examine them, for fear of being shouted down or called “racist!” And in discussions where there’s a fine line between unexamined white supremacy and a legitimate policy position — discussions about affirmative action, for example, or police procedure — it’s particularly difficult to get honest discussion. Now add, to the problem of social disapprobation, actual criminal penalties for speech classed as “white supremacist.” Does anyone think this is a recipe for enabling the kind of honest discussion that would disarm unexamined white supremacy? Or would it only result in such ideas going underground… festering… and occasionally exploding?
(Obviously, the case against outlawing speech advocating fascism and communism is even stronger, since those philosophies are merely sick, metastasized versions of two otherwise respectable political philosophies — law-and-order conservatism, and moderate democratic socialism. Does Eric Posner want to be the one to explain where, on the spectrum from the British Labor Party to Herbert Marcuse to Vladimir Lenin we should put the legal barrier that says, “HERE AND NO FURTHER!”? Because I sure don’t.)
Posner also calls out liberals for supposed hypocrisy in supporting laws that punish for certain kinds of speech:
They supported enactment of hate-crime laws that raised criminal penalties for people who commit crimes against minorities because of racist or other invidious motives. They agreed that hate speech directed at women in the workplace could be the basis of sexual harassment claims against employers as well.
I’m not sure what this is supposed to prove. I admit that I actually find hate-crime legislation dubious. But both hate crime laws and sexual harassment laws are laws against coupling speech with the exertion of power or control — which is a very different thing from pure speech like the “Innocence of Muslims” video or the Citizens United video about Hillary Clinton. (Or insert your own favorite example of vile but legal speech.) We will always look more skeptically on speech that either is or accompanies an actual act of domination. If Posner doesn’t understand the difference between an internet commenter saying “Christina Hendricks has great tits!” and a woman’s employer — on whom she depends for her livelihood and her family’s livelihood — saying “You’ve got some great tits, there!”… well, I just don’t know.
But I think, ultimately, Posner does understand. I don’t think he seriously believes that liberals or other champions of free speech think that “the disparagement of other people and their beliefs is… a positive good.” I can only come to the conclusion that this is disingenuous trolling.
On the other hand, some people seem quite willing to take his idea seriously:
India’s Sikh community has condemned J.K. Rowling’s recent novel, “The Casual Vacancy,” for describing one of the female characters, Sukhvinder, as “mustachioed, yet large-mammaried” and portraying her as a “hairy man-woman.” (Traditionally, followers of the Sikh religion are forbidden from cutting or trimming their hair)….
He added: ‘If anything is written against the Sikh maryada (dignity), we will write to [India’s] prime minister Manmohan Singh and urge him to take up the matter with the government in the United Kingdom for action against Rowling.
‘Nobody can injure our religious sentiments. If something has been written against the Sikh faith, I condemn it vehemently and strongly.’