Misattributed to Voltaire, the above saying nonetheless captures his attitude. The saying was parroted in the wake of the terrorist attacks by Muslim fanatics on the French satirical weekly, Charlie Hebdo. We need to take a squinty-eyed look at the saying. I will be arguing that it does not bear up well under examination.
Suppose you are talking with someone who publically asserts with a straight face, "No Jews were killed at Auschwitz by the Nazis." Will you defend your interlocutor's right to say it? And will you defend it to the death? I hope not. The right to free speech cannot reasonably be taken to include the right to state what is false, known to be false, and such that its broadcasting or public expression could be expected to cause social harm. (The characteristic claim of the Flat Earthers is false and known to be false, but not such that its broadcasting or public expression could be expected to cause social harm, and this for a couple of reasons: whether or not the earth is flat is not a 'hot button' issue; the vast majority consider Flat Earthers to be utter loons.)
Generalizing, will you defend to the death anyone's right to say, seriously and publicly, whatever he wants to say, even if it is known to be false and likely to incite violence? If you answer in the affirmative, then I will label you a free speech extremist, that is, one who holds that the right to free (public) speech is absolute. But what is it for a right to be absolute? And could the right to free speech be an absolute right?
There is a distinction between moral and legal rights. My concern is solely with whether there is an absolute moral right to free speech. Some rights are exercisable, other are not. The right to free speech is exercisable whereas the rights not to be killed and not to be spied upon are non-exercisable. Some rights are general, others are specific. The right to free speech is general: if any person has it, then every person has it.
To say that an exercisable right is absolute is to say that its exercise is not subject to any restriction or limitation or exception. This implies that an absolute right cannot be infringed under any circumstances. And if an absolute right is general, then it cannot be restricted to some persons only. So if the right to free speech is absolute, then everyone always in every circumstance has a right to free speech.
I believe I have clarified sufficiently — for the purposes of a Substack article — the sense of ' The right of free speech is absolute.'
My thesis is that the right of free speech is not absolute. It is no more absolute than the other rights mentioned in (but not thereby granted to us in or by) the First and Second and other Amendments to the U. S. Constitution.
Consider gun rights. Is the right to keep and bear arms reasonably regarded as absolute, i.e., subject to no limitations or restrictions? No. I would put you down as a fool if you said otherwise. Felons are not allowed to own guns, and for good reason. Ditto for children and the mentally incompetent. The right to keep and bear arms does not extend to nuclear arms or biological weapons. The firing of guns is subject to various restrictions, etc. In this case it should be perfectly obvious that the right to keep and bear arms cannot be an absolute right.
Is the right to own real property absolute? If it were, no use of eminent domain would ever be justified, when surely some uses are. Eminent domain laws are sometimes abused to benefit special interests. We conservatives protest that abuse. But the abuse of eminent domain is no argument against its judicious and limited use for purposes that truly serve the common good. Suppose there is a dangerous mountain road on which hundreds of people have lost their lives. The state civil engineers propose a bypass, but building it would involve the coercive taking, albeit with monetary compensation, of a little land from a fat cat rancher who owns a parcel the size of Rhode Island, the coercive taking of a strip of land occupied only by a few prairie dogs. A rational and morally decent person would say that here the right to property must be limited for the common good. (And let's assume that the good really is common: the owner of the land himself must travel the dangerous mountain road.)
I have given two examples. Here is a third. Congress shall make no law prohibiting the free exercise of religion. That is a near-quotation from the First Amendment to the U. S. Constitution. But what if the free exercise of some religion includes not having one's children immunized for measles or other highly infectious diseases? Would a reasonable person maintain that under no conceivable circumstances would the government ever be justified in forcing a parent to have a child immunized in contravention of a religious precept? I don't think so. There are some truly loony 'religions' out there. Similarly with religions that permit the genital mutilation of girls.
Fourth, the right of the people peaceably to assemble does not the right to assemply, even peaceably, on major traffic arteries at rush hour. Fifth, the right to petition the government fora redress of grievances cannot be reasonably construed to include the threatening of Supreme Courts justices with bodily harm. In the five cases just mentioned it ought to be clear that the rights in question cannot be absolute. Now is there something about the right to free speech that makes it different from the ones mentioned above in a way that justifies saying that free speech is an absolute right when the others are not? Not that I can see.
I have heard it said that speech is just speech; it not like discharging a firearm in a residential area or seizing a man's property or forcing parents to immunize a child with an untested drug. But this is a lame response because speech is not 'just speech.' Not only does public speaking and publishing involve all sorts of actions, it can and does reliably lead to actions both good and evil. People are highly suggestible and susceptible of exhortation. One can fire up a lynch mob with well-chosen words. I don't need to belabor this: it is obvious. Speech is not 'just speech.'
The right to free speech meets a limit in the moral obligation to not inflame murderous passions. There is no absolute moral right to free speech. Whether certain forms of speech should be legally prohibited is of course a further question.
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