Date: Sun, 20 Apr 1997 09:17:45 -0400
Subject: SLAC Bulletin


The following is the lead essay from the May issue of
The Ethical Spectacle, http://www.spectacle.org,
online May 1.

 Why Americans Don't Care About Freedom of Speech 

After more than 200 years of an American constitution with a strong
bill of rights, it is a mystery that most of us don't understand
or particularly care about freedom of speech. Sure, we pay lip 
service to it, but most people believe in exceptions so grandiose 
that the rule itself becomes meaningless. "Free speech" becomes an
empty phrase, without any kind of scheme or topography behind it.
In the end, it is used to mean that "the speech we approve of 
will be free." 

This is not a new problem. Polybius, in his history of the Roman
republic, complained that the Romans  lost interest in 
freedom of speech: 

"But as soon as a new generation has succeeded and the
democracy falls into the hands of the grandchildren of its founders,
they have become by this time so accustomed to equality and freedom
of speech that they cease to value them and seek to raise themselves
against their fellow citizens, and it noticeable that the people
most liable to this temptation are the rich."

So, he says, people hankering after office and not qualified to
succeed on their own merits begin to seduce the people with
bribes. Our  campaign finance system is the modern reflection of the
unstable situation Polybius described, where the wealthy bribe
the powerful with soft money and the powerful then bribe
the people with empty promises of freedom from want or from taxation,
from minorities or the powerful, or whatever the bugaboo of the 
day is. 

De Tocqueville had a remarkably similar insight into the American
political situation. "One encounters in the human heart a depraved
taste for equality," he remarked, "which drives the weak to 
wish to pull the strong down to their level, and which reduces 
men to preferring equality in servitude to inequality in liberty": 
 
"It is not that people whose natural social state
is democratic naturally feel contempt for liberty; on the 
contrary, they have an instinctive taste for it. But liberty
is not the principal and continuing object of their desire;
that which they love with an eternal love, is equality; they
rush towards liberty by rapid impulses and sudden efforts, but,
if they miss the goal, are resigned to it; but nothing can 
satisfy them without equality, and they would rather 
die than lose it."

To put it somewhat differently, liberty is something of an intangible,
procedural goal, while equality is manifested much more tangibly,
in status, creature comforts and the like. It is human nature 
that the substantive will trump the procedural, and this is in
fact one of the main problems of our constitutional law. It is
hard for people who believe a convicted murderer deserves to die
to care about the procedural flaws that denied him a fair trial.
Similarly, people who hate the content of particular speech--
neo-Nazi propaganda or flag desecration,
for example--to understand why a process  that protects 
such speech is inherently valuable to us all.  

This too is not a new problem. I highly recommend Leonard W.
Levy's Emergence of a Free Press, which uncompromisingly
examines the hypocritical conditions in which the American system
of freedom of expression was born. Freedom of speech was resolutely
claimed during Colonial times, but its advocates saw it as a means
to attainment of their goals, not an end in itself, as they proved 
by smashing the presses of pro-British printers during the revolution
and by prosecuting royalists and other adversaries under the
Alien and Sedition acts afterwards. Benjamin Franklin, whose own
brother had faced prosecution under the colonial government for 
printing revolutionary opinions, declared himself completely 
comfortable after independence with the common law of seditious
libel, which allowed the new government to prosecute its
adversaries for their ideas. Levy wrote, "The American people
simply did not believe or understand that freedom of thought
and expression means equal freedom for the other person, especially
the one with hated ideas." And neither do they today. 

Freedom of speech is really  a philosophical value,
set in a setting so political that, for the reasons described by
Polybius, powerful forces are always working to defeat it. The desire
to attain power and the desire to protect free expression part 
company when power is attained; and the public's desire for 
equality, benefits and material comforts is the vulnerability
the power-seekers exploit to attain their goals. As I have 
written elsewhere, our systems of freedom of expression is a
sort of  rulebook like the Marquess of Queensbury rules that tell
boxers, "You must not fight simply to win; no holds barred is
not the way; you must win by the rules." In the U.S., since the
desire of elected politicians is to win, increasingly at whatever
cost, it is the appointed judicial branch who must serve as 
philosopher-kings, protecting the procedural and the weak against
the depradations of the substantive and strong. But, since the
judges themselves are political appointees, approved by the
Senate in an increasingly politicized process, and as of recently,
threatened with impeachment for their so-called "judicial activism",
the prospects are not always grand that they will be willing, or
able, to do their job. 

It is relevant here that there are many people who believe 
that the courts, including the Supreme Court, should have no
right to void an act of Congress--a belief which if adopted
would greatly hasten the end of our procedural liberties. 

Contrast the strong words of Justice Holmes, architect of
the "marketplace of ideas" metaphor for American freedom of speech,
who contemplated (in his dissent in Gitlow v. NY) 
the possibility that bad speech might win
the market struggle: 

"If in the long run, the beliefs expressed in proletarian
dictatorship are destined to be accepted by the dominant forces of
the community, the only meaning of free speech is that they should
be given their chance and have their way."

The philosophical underpinnings of the 
free speech rulebook are humility, tolerance and optimism--
the humility to understand that
our own ideas are not absolute truth, tolerance for the ideas
of others even if we do not understand or are appalled
by them, and optimism that free expression, as a process, will
work out for the best in the end. The latter is what Holmes 
really meant; he did not believe that dialectical materialism
would triumph, and it has not. But humility, tolerance and
optimism are the first qualities we abandon when we seek 
power or are bribed by those who do. This fundamental struggle 
in ourselves is what guarantees, to borrow Robert Frost's phrase,
that "nothing gold can stay."