What Trumps What

Another thought or two on free speech and lying.

Part of what I think I disagree with is Norm’s implication that there are only two possibilities, protection of lying as free speech or criminalization of it.

Now, even though Ophelia puts the point interrogatively and not as a conclusion, one can only assume she does so to leave open the possibility that falsehood, lying and such shouldn’t be protected under norms of free speech, and therefore may in certain circumstances be criminalized.

I’m not sure that ‘therefore’ is a therefore. I’m not sure that failure or refusal to protect X translates to a belief that X should or may be criminalized. It seems to me it can fall well short of that. Are we (logically, or morally, or both) obliged to protect everything we don’t think should be a crime? Surely not. Surely there’s a whole mess of things, a whole choppy sea of them, that we disapprove of and think wrong and wouldn’t dream of actively protecting, without therefore thinking they should be felonies, or even the equivalent of parking tickets.*

And I suppose this is how I look at the whole issue. I don’t see it as all or nothing, as free speech or nothing, as a blanket endorsement of free speech or a blanket criminalization of everything that’s not an explicit right. I suppose I look at it in a ceteris paribus way, and I often think other things aren’t equal. I suppose I see blanket or unconditional endorsements of free speech as a pre-emptive move similar to that executed by words like ‘respect’ and ‘blasphemy’. I think I’m going to write a book about this.

It’s not that I don’t think free speech is a good, and a tremendously important good at that, it’s just that I think 1) that it’s often a competing good and 2) that the things it competes with have to be evaluated on their merits rather than just dismissed by the trumping-power of free speech and 3) that as Stanley Fish and Onora O’Neill (among others) point out, pretty much everyone else thinks that too. If that’s true, if pretty much everyone else does think that too, then the blanket endorsement of free speech would seem to be functioning as a rhetorical tool.

Dave put it neatly in comments:

This is, of course, why politics is inevitable. There is no foundational response to the issue, other than to continue the clash between differing viewpoints over what constitutes a ‘correction’ and what a ‘falsification’, and to hope that those who defend freedom do not sell the pass one day…

There is no foundational response to the issue. Free speech is one good, but truth, accuracy, scholarship, reliable scholarship, the reliable universality and intercommunicability of scholarship and research and knowledge, methodological reliability, evidence, standards, trust – are also goods. It is by no means self-evident that free speech should protect a putative right to falsify history at the expense of all those very real and important goods. Research, inquiry, the steady accumulation of reliable, warranted knowledge would become impossible if everyone came to believe that free speech meant the right to simply invent one’s findings – to cheat, as Robert Pennock called it during the Kitzmiller trial. But – that doesn’t cash out to saying that scholars who lie should be hauled off to prison.

Onora O’Neill put it this way:

Yet even committed liberals don’t seriously think that rights to free speech are unlimited or unconditional, although they seem to be unsure about which limits should be set. They are often torn between an aspiration to justify free speech as minimal and uncontroversial, and a contrary belief that free speech matters because it is not minimal but powerful…Rights to free speech have always been seen as limited by other serious considerations, and must often be so restricted if we are to respect other rights. Nobody thinks that a right to free speech confers an unconditional licence to intimidate, to incite hatred, to defraud, to deceive or the like, and nobody thinks that the law should protect speech acts that harm, injure or put others at risk.

That’s what I’m saying. I don’t think Irving should be in prison (although I have to admit I don’t think it with much intensity or passion or even conviction, and I don’t mind much that he is there, especially after listening to Radio 4’s documentary on the trial last week) but I don’t think he has a right to falsify published history, either.

It’s all about lying, after all. Irving accused Deborah Lipstadt of lying by accusing her of libel – he was accusing her of lying about him, and he wanted the accusation to have an effect: the pulping of her book. He lost the case because he was shown to have lied extensively himself. His right to free speech didn’t trump that verdict – so in that sense it was not protected. It lost out to other, competing rights. Lipstadt won the case not because she had a right to free speech, but because the evidence showed that she told the truth and Irving lied.

Another distinction that I think helps to disentangle this is that between speech (such as speech to political meetings and rallies) and published writing. But that’s enough for now.

*Mind you, a lot of people do make exactly that translation, as I’ve remarked before. They do, oddly, hear strongly-worded disapprobation of, say, a certain kind of tv show or movie or book as a demand for censorship of same. But those are confused people, who are beside the point for the purposes of this discussion.

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