Now and then it’s good to have a brief check-in on premises, as in the basic assumptions of our thinking.
The topic was brought home to me Tuesday by an article at Breitbart, by Pam Key, recounting Joy Behar’s dictum during a discussion of free speech at The View that the First and Second Amendments need “tweaking.”
Key quotes Behar: “When the Founding Fathers were busy with the amendments — the 1st and 2nd Amendments — they did not have AR-15s in there, weapons of war, and they didn’t have Twitter. So both amendments, I think, need to be tweaked a little bit.”
Behar added (again quoted by Key): “We make our living on the 1st amendment, so we love it, but there’s a lot of hate speech and misinformation, needs to be dealt with.”
First of all, of course, AR-15s are not weapons of war. (This matters to the topic.) No one would take a semiautomatic rifle to war now. But more importantly, the muskets used for warfighting by the American colonists – and the British infantry – were one and the same as the weapons that hung over fireplaces and were used for hunting and self-defense.
Behar has it exactly backward. The Founding Fathers wrote a Second Amendment that recognized the guns everyone kept at home as weapons of war. On guns and the Second Amendment, she’s objectively full of misinformation.
Does that mean those of us who know better should benefit from a “tweaked” First Amendment so we can silence her misinformation?
And if people on the left say no, why should we respect any obviously unprincipled argument for silencing people on other matters, when it is claimed that they are offering misinformation? Either the misinformation exception applies whenever anyone makes use of it, or it’s mere arbitrary bias.
So much, I think, we already know. The point of raising this issue, besides the latest proclamation from Ms. Behar, is that the premises here are irreconcilable. There is no such thing as meeting halfway on free speech vs. arbitrarily limited speech.
Once you sign up for arbitrary limits being applied to people’s speech, you’ve gone all the way to the other end. Free speech is no longer anyone’s premise.
Free speech means precisely that others cannot impose arbitrary limits on it. Otherwise, it isn’t free. This doesn’t mean that no one can be held accountable for what he says, which is what’s happening when the “‘fire!’ in a crowded theater” standard is applied, or a media outlet engages in libel. There’s speech you can be punished for by agencies of the government, if it meets a set of rigorous criteria that don’t change from one situation to another. One of those criteria – the most important one – is that you can demonstrate to an objective standard that the speech caused damage, harm, inconvenience, etc. to others affected by it.
That’s the case even if the speech isn’t aimed at them individually. The point isn’t who (if anyone) is targeted; it’s whether damage was objectively done.
But “hate speech” and misinformation are in the ear of the hearer. There is no rigorous, replicable “damage” standard for either of them, nor can there be. (Misinformation, where it can be proven with mens rea, is already covered in law under fraud. What is called “hate speech” may in some cases be incitement, which is also covered in law. But most “hate speech” causes no material damage in a justiciable sense. Actual damage is caused by things like incitement, assault, battery, vandalism, and so forth.)
No one is competent to identify and judge “hate speech” and misinformation for all mankind. These are meaningless categories on which people can and do have legitimate, good-faith disagreements. It’s easy enough to say obvious things like shouting ethnic slurs in an angry way are “hate speech” – but there are plenty of people now who claim it’s hate speech to merely quote passages from the Bible, or say something like “Jesus is the Son of God.” There are also people who claim it’s “hate speech” to quote the actual writings and statements of members of the Muslim Brotherhood – and people who insist it isn’t “hate speech” to lob ethnic slurs at Jews, because of political talking points about Israel and Palestinian Arabs.
“Hate speech” is coming for something you believe or say. It’s only a matter of time. The same is true of “misinformation.” These are political categories, not good-faith attempts to favor truth or kindness in speech.
Such matters of freedom in opinion and belief can’t be “tweaked” out of the First Amendment, or the whole amendment is lost. Indeed, merely having a different perspective on an event one witnessed could be criminalized as “misinformation,” if we go the arbitrary route on limiting speech. Eyewitnesses always give differing accounts, as any police officer will tell you. If stories don’t match perfectly, must someone be giving “misinformation”?
The ultimate point is that Joy Behar and free speech advocates don’t want the same thing. The goal of the differing advocates is not the same. Joy Behar doesn’t want free speech; she wants arbitrarily limited speech. And she, naturally, wants to be the one to decide what the limits are.
Her impulse is a very human one. It’s not to rail against Behar that I make this point. It’s to clarify that there is no “meeting halfway” on free speech, any more than there’s “meeting halfway” on human life (e.g., let’s have a little bit of homicide, just not a lot).
You don’t know what other people “should be prohibited” from saying, any more than you know what the absolute truth is about every topic under the sun. Neither do I. Neither does anyone else. Taking conscious care about our own speech is the most and best that any of us can do.
Those principled truths, acknowledged, are the basis for much better social interaction than trying to administer a regime of arbitrary limits, which always starts out biased and degenerates immediately into a competition for brute power over others.
But free speech does require affirmation and support, for itself alone, apart from topics and opinions on topics. That’s what the Bill of Rights is about. It’s why it’s in the Constitution; because the Framers understood very well – even though there was no “Twitter” in 1789 – that some people will retail all the “misinformation” and “hate speech” they can manage, and others will constantly call things “misinformation” and “hate speech” that aren’t.
Rather than continue restating the proposition, I’ll close with the well-worn but excellent axiom that the remedy for speech is speech. I.e., let speech compete; don’t try to shut it down.
And will point out once again that people who want to “tweak” the First Amendment don’t have the same goal as people who want to preserve it intact. There can be no compromise on free speech. Either it is free, or it is lost.
Feature image: The View (Joy Behar, center) in 2020. ABC The View video.