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Freedom and the Proper Regulation of Speech

September 24, 2008 by  

Freedom of speech. Ironically, it is a political subject about which most people talk without saying anything.

“Freedom of speech has limits”, some say, just before, reflexively, they trot out the inevitable “for example, you can’t yell fire in a crowded movie theatre”. I always imagine them silent, feeling legally bound not to tell anyone in the theatre that the snack bar is on fire. Mostly, such folks make such assertions baldly, having little logical argument to back up their conclusions. This allows them to sneak in an unprincipled regulation of “hate speech” here, and an unprincipled regulation against the importation of lesbian books there. Still, in implying that the government should regulate some speech, such people are closer to a correct and correctly-worded argument than those who assert that no speech should ever be regulated: that the government must be prohibited from regulating speech, full stop.

“Freedom of speech is absolute” these purported advocates of freedom say. Seeing themselves as brave, clear-thinking political philosophers who despise compromise and trace every argument to its ultimate logical conclusion, such people often proceed to explain that there should be no laws against defamation. Usually, their argument, boiled to its essentials, goes something like this:

“Physical force should only ever be used in response to the initiation of coercive physical force. Sticks and stones may break your bones, but words will never hurt you. Therefore, it is wrong for anyone, including government, to regulate speech.

Sure, if I defame you, you might lose customers. But you do not own your reputation. You don’t have a right to your reputation. Your reputation is just the beliefs in other peoples’ heads, and you have no right to dictate what they think about you. The real problem – and it is a widespread problem – is that people fail to treat everyone’s claims as false-until-proven-true. Nobody should ever base their decision upon some claim that someone has made. Doing so is irrational.”

Though well-intentioned in some cases, such people are defending not reason but anti-rationality. Wittingly or unwittingly, they are making arguments that implicitly oppose laws against some instances of murder, slavery, and theft. Intentionally or unintentionally, they are opposing freedom, not advocating it.

Freedom is control. Specifically, it is control over ones own liberty and property; over the pursuit of ones own survival and happiness. The role of government is to ensure that no other person causes you to lose that control; that no other person deprives you of your freedom.

A person can use physical force to cause you to lose control over your own life, liberty or property: he can use a gun to murder you, enslave you, or rob you of your cash. However, physical coercion is not the only method for denying you control over your life, liberty or property. It can be done with “speech”; with words.

By selling you a can of highly corrosive acid labeled “Soda Pop”, a person can deprive you of your life. By framing you for a crime you did not commit, or by bearing false witness against you, you can be deprived of your liberty. By selling you an ineffective substance as “a new, 100% effective cure for strep throat”, you can be deprived of your property (i.e., the money you paid for the substance). Common to each example is the making of false or arbitrary assertions upon which you or others found decisions concerning your life, liberty, or property.

Such losses do not require that the recipient of false or arbitrary claims be irrational. In the absence of evidence to the contrary, another person can be regarded, quite rationally, as being innocent and honest. It is not irrational to believe that a can labeled “Soda Pop”, purchased at your local variety store, actually contains soda pop, unless you have evidence that the claim is false or that someone responsible for making that can available to you for purchase is dishonest about the nature of the product. It is not irrational to believe an eye-witness’ testimony that he saw Mr. Bloggs stab Mrs. Bloggs, unless you have evidence that the claim is false or that the eye-witness is not honest. It is not irrational to believe a claim that a given substance is “a new, 100% effective cure for strep throat” in the absence of evidence that the claim is false or that person making the claim is dishonest. Yes, over time, evidence to the contrary of such claims – or that support the conclusion that such claims are arbitrary – might eventually be found: someone else may die after drinking the “Soda Pop”; the person who framed you might confess; your friend might try the strep-throat substance and discover it is not effective. However, before there is evidence that a claim is false or arbitrary, or that the claimant is dishonest, it is not irrational to believe such claims.

Rationality does not imply infallibility or omniscience. Even a perfectly rational person can be deprived of control over his life, liberty or property as a result of decisions – his own decisions or decisions made by others – that are founded upon a false or arbitrary claim. A rational person might die from drinking the corrosive substance labeled “Soda Pop”; he might be sent to prison for a crime he did not commit as a result of a purported eye-witness bearing false witness against him; he might spend money on a substance that does not fulfill its vendor’s promise to cure his strep throat. A false or arbitrary claim can cause even a rational person to err, and that is precisely why the making of such claims can result in you losing control of your own life, liberty, or property.

When used to deprive someone of control over his life, liberty, or property, the role of physical force is to render the victim’s mind irrelevant. Coercive physical force targets the mind.

When used to deprive someone of control over his life, liberty, or property, the role of false or arbitrary claims is to cause even the most rational mind to err. False and arbitrary claims target the facts of reality.

Control necessarily implies consent. Agreement procured with false or arbitrary claims is essentially equivalent to agreement procured at the point of a gun: agreement, in such cases, is not consent. In respect of attempts to deprive someone of control over his life, liberty or property, the effect of false or arbitrary claims is the same as the effect of coercive physical force: to obviate consent.

It is for this reason that government rightly imposes and enforces laws against fraud. The defrauder falsely claims to have control over a value that, in reality, he lacks; he misrepresents the facts of reality so that his victim will draw an erroneous conclusion that would not, otherwise, have been drawn. He thereby causes his victim to agree to transfer control of something (typically property) to the fraudster without ever receiving control of the promised value in exchange. The law rightly responds to the making of such false claims by forcing the fraudster to compensate his victim or otherwise pay for the loss his false claims allowed him to cause.

For the same reason, government rightly imposes and enforces laws against defamation. The defamer falsely claims another person to lack a value (e.g., skill in his trade), or to have a disvalue (e.g., an history of criminal conduct); he misrepresents the facts of reality so that others will draw an erroneous conclusion about his intended victim. He thereby may deprive the victim of those values – whether material (e.g., lucrative contracts from clients) or spiritual (e.g., the admiration of another person) – that the victim has or would otherwise have obtained. When such losses occur as a result of a defamation, the law rightly punishes the making of such false claims by forcing the defamer to compensate his victim or otherwise pay for the loss his words allowed him to cause.

“Freedom of speech” – a law prohibiting government from punishing the expression of ideas, beliefs, etc. – would be an oxymoron were it to imply that government cannot outlaw speech calculated to obviate consent and thereby to deprive a person of control over their own life, liberty or property. Ask yourself: how would “freedom of speech” be the result of a “freedom of speech” law preventing the government from taking any action against a person who, by means of fraud, obtains copyright in an author’s work so as to prevent the printing and distribution of the work; so as to prevent the author’s words from reaching any audience?

Individual freedom – control over ones own life, liberty and property – is the very thing that constitutional laws guaranteeing freedom of speech are intended to defend. It is the only thing a law guaranteeing free speech logically can defend. That redundancy is why, in the final analysis of the concept “freedom of speech”, the words “of speech” are non-essential and, ultimately, dispensable.

Freedom of speech laws rightly prevent governments from outlawing speech that does not deprive an individual of control over his own life, liberty or property; that does not deny anyone his freedom. If interpreted to prevent governments from outlawing speech that does deny other individuals their freedom, “freedom of speech” laws would facilitate and legalize many instances of murder, slavery and theft. And, for that reason, those who say government should make no law that punishes any kind of speech at all are, or are assisting, the enemies of freedom.

Comments

9 Responses to “Freedom and the Proper Regulation of Speech”

  1. Amlan Gupta on September 24th, 2008 10:10 pm

    Hi Paul,

    This comment is not related to this article but I was not sure how to submit a general question to you. My question concerns voting in the federal election – in my riding, there does not seem to be a single party that I can in good conscience vote for.

    I seem to recall reading somewhere (maybe even your blog) that there is a way to register a protest vote or blank vote that will not be counted as a spoiled ballot. I don’t expect to find such information on the Elections Canada web site, but can you provide any guidance?

    Thanks for the help.

    Amlan

  2. Glenn on September 25th, 2008 9:07 am

    That was excellent. I especially like this part:

    “Control necessarily implies consent. Agreement procured with false or arbitrary claims is essentially equivalent to agreement procured at the point of a gun: agreement, in such cases, is not consent. In respect of attempts to deprive someone of control over his life, liberty or property, the effect of false or arbitrary claims is the same as the effect of coercive physical force: to obviate consent.”

  3. Jason Kauppinen on September 25th, 2008 9:18 am

    Good article. It was needed in response to a youtube post by someone who’s screen name evades me at the moment.

  4. Paul McKeever on September 25th, 2008 10:51 am

    Compliments appreciated, thanks. Fuel for the next one.

  5. Luke on September 29th, 2008 3:28 pm

    Well said Paul. Do they teach you to write like that at law school?

  6. Paul McKeever on September 29th, 2008 4:25 pm

    Thank-you for the compliment Luke.

    No, they didn’t teach me how to write like that in law school. I’m not sure that anyone rightly deserves the blame for the way that I write, except myself. 😉

    Cheers,

    Paul

  7. Freedom of Speech « Applying philosophy to life on October 2nd, 2008 4:11 pm

    […] of Speech Posted on October 3, 2008 by K. M. Paul McKeever has a post on Freedom and the Proper Regulation of Speech in which he claims that it is the role of government to outlaw speech that denies individuals […]

  8. K. M. on October 2nd, 2008 4:18 pm

    I have a rebuttal of your argument here. I would have posted it as a comment but it became a little too long.

    The crux of my rebuttal is your equivocation on freedom and control. They are not the same. From my post:
    “Man is free by nature. He does not control his own life in the same sense. For example, I do not control whether I get to keep my job. If my employer decides to fire me, is he causing me to lose my control? I do not control my immediate emotions. If a stranger abuses me verbally and I get angry, is he causing me to lose my control? In both these cases I retain my freedom but do I lose my control or did I never have it?”

  9. Tjitze on March 26th, 2009 10:54 am

    Great explanation Paul!

    But isn’t fraud also theft because after the ”trade” the objects witch rightfully belong to you because of that trade are held back by force.

    If someone sells you something witch they claim to be a soda pop but is not are they not withholding an actual soda pop from you?

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