Those crazy "PATRIOTIC" Democrats: Free Speech Edition

basically says it better than I can

 

since this argument came up in this thread

https://arcdigital.media/dont-make-the-debate-over-speech-like-the-debate-over-guns-fc80eab28fb8

Don’t Make the Debate Over Speech Like the Debate Over Guns
An old argument against gun rights is now getting deployed against speech rights. It’s a bad argument.

Nicholas Clairmont
Nov 7

I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money,” said candidate Donald Trump in the winter of 2016.

Before his election, Trump’s wish to expand the existing exceptions to free speech — in this particular case, to categorize press coverage he didn’t like as a subtype of defamatory speech — was taken in the press as yet more evidence that he was willing to undo the fabric of American society. Free expression is a first principle of any open society, a guardrail against tyranny and censorship. Here was a man with a fascist personality threatening it. This was among the reasons he ought to be stopped, I thought, and many others thought too.

Fast forward past his surprise victory to today, and a shell-shocked commentariat is desperate to do something — anything — to make 2016 a historical aberration. Some members of the media now seem to be embracing the same kinds of limitations on free expression Trump once did as he contemplated the prospect of gaining power in the next election.

Writing in the Washington Post, Richard Stengel argues that “America Needs a Hate Speech Law” which would make it illegal to burn a Koran or to utter “speech that can cause violence by one group against another.” Stengel is a former top U.S. diplomat and head of Time magazine who is now out with a book, Information War. As he sees it, “In an age when everyone has a megaphone,” the fact that our society protects even such nasty speech “seems like a design flaw.”

Andrew Marantz is a New Yorker writer whose book, Antisocial, came out the same day and offers substantively the same argument. In a New York Times op-ed entitled “Free Speech is Killing Us,” Marantz asserts: “Noxious speech is causing tangible harm. Yet this fact implies a question so uncomfortable that many of us go to great lengths to avoid asking it. Namely, what should we — the government, private companies, or individual citizens — be doing about it?”

How to value free expression and codify its limitations has been under debate for a long time. And America has traditionally erred on the side of liberal speech policies that eschew censorship except in very limited and carefully delineated cases. But Stengel’s case for limiting free speech is, at least according to him, a new one built in response to new developments: “The intellectual underpinning of the First Amendment was engineered for a simpler era.”

Free speech, Stengel argues, wasn’t always a bad idea, but it might now be defunct or obsolete. Maybe it applied when John Milton polemicized in Areopagitica “for the Liberty of Unlicenc’d Printing, to the Parliament of England.” And it may still have been operative when John Jay wrote some of the Federalist Papers. But these centuries-old framings of how we discuss issues of free expression simply could not have foreseen the fundamental changes technology has brought about since.

When the American founders protected free expression with the First Amendment, and when ensuing jurisprudence refused to limit these protections except in extremely rare cases, they didn’t know that trolls would be able to buy ads on Facebook that could get deceptive and hateful messages to millions of eyeballs. They were thinking about these questions a century before the lightbulb, much less the internet or Cambridge Analytica.

The Internet is to Speech as AR-15s are to Guns?
Marantz makes the same case as Stengel for the obsolescence of the value of free expression, arguing in his book that in an “age of disruption,” the principle can no longer coexist with a peaceful society.

In the Times, Marantz describes being frustrated with fellow liberals’ stubborn attachment to free speech, and he draws an analogy:

I imagined the same conversation, remixed slightly. What if, instead of talking about memes, we’d been talking about guns? What if I’d invoked the ubiquity of combat weapons in civilian life and the absence of background checks, and he’d responded with a shrug?

The analogy is apt. “Censorship, because internet” is the new “gun confiscation, because AR-15s.”

Marantz’s argument is a well-trod talking point in the debate over the Second Amendment and the right to bear arms. The side that wants to limit or ban civilian gun ownership in America argues that technological developments mean that the framers of the Constitution didn’t or couldn’t really know what they were doing when they wrote out the rights that the government would protect. So, it’s not so much that the right to bear arms was always wrong as that it has been rendered defunct by the development of technology. (Sound familiar?) It used to apply, but it doesn’t and shouldn’t anymore.

When the Second Amendment was ratified, George Washington’s musket wasn’t anything like the semi-automatic, military-style rifle with a high-capacity magazine used to shoot 413 people from the Mandalay Bay Hotel in Las Vegas — just as when the First Amendment was ratified, there were no neo-Nazi 8Chan groups spreading viral pro-Trump memes online.

The thing is, this analogy between the free expression issue and the gun issue doesn’t support Marantz’s and Stengel’s case. Quite the contrary. Far from having persuaded the country with the overawing logic of the “musket myth,” as Second Amendment advocates sometimes call this argument, the gun debate isn’t actually going well for gun control advocates. It’s not going well for anybody. And there are intelligible reasons why. “Because AR-15s” is a weak justification for gun control, even if there may be other good ones. And nobody should buy “because internet” as a reason for government censorship.

One of the reasons the American gun debate is so intractable and all-around frustrating is that it pits an abstract principle—self-defense — and an absolute constitutional right to bear arms against a set of supposedly morally intolerable circumstances — the realities of rampant gun violence, mass killings, and epidemic suicide by gun. But principles are by definition immune to arguments from circumstances. This is why the musket argument is so attractive to gun control advocates. To address abstract Second Amendment absolutism, the anti-gun side has to invent a category distinction, arguing that there has been some kind of fundamental change in gun technology in order to say the principle does not apply here at all. It’s a way of trying to wave off the principle.

The pro-gun side finds this unpersuasive and replies in certain familiar ways, usually by asking inconvenient questions about just when technology made the Second Amendment defunct. Was it with the invention of the assault rifle? Because that is an ill-defined category. Or the semi-automatic? As pro-gun sites regularly point out, the founders actually were aware of repeating rifles. Second Amendment-loving sites will vigorously remind you about the repeating Girandoni Air Rifle and its 20-round magazine that was in some degree of use around the American founding. Plus, mass-produced revolvers from the middle of the 19th century work fundamentally the same way modern guns do. The date of the alleged paradigm shift in gun technology is hard to pin down.

This all makes the gun debate a sort of cyclical ritual that goes nowhere. It might go better if the anti-gun side just admitted that sometimes these things are judgment calls, not everything is a philosophical chess game, and the right to bear arms just doesn’t feel worth it. Incidentally, that is the argument that finally convinced me.
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more at the link, continued next post

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conclusion:

The Past Is Not a Foreign Country
What can this tell us about the attempts to gun-ify the free speech debate represented by Stengel and Marantz? If they really are analogous issues, perhaps we should stop condescending to the framers by imagining that they just didn’t mean to allow us the freedoms they did. Do we really imagine that Jefferson, Hamilton, Jay, Madison, and two centuries of jurisprudential review have not considered the potential objection that sleazebags might use their free speech to publicly disseminate lies?

Stengel writes that “on the internet, truth is not optimized. On the web, it’s not enough to battle falsehood with truth; the truth doesn’t always win. In the age of social media, the marketplace model doesn’t work.” Yes, the internet is a more efficient and powerful force for disseminating both information and misinformation than the printing press or the good old human vocal cord. But who has ever claimed that the reason to battle falsehood with truth rather than official censorship is that the “truth always wins”? The American founders could not have believed this, and in fact they did not.

The Constitution was framed at a time when the prevailing politicians and pamphleteers were abnormally unrestrained and nasty in their mudslinging. The fights in the press among the founders themselves, even those who were close friends, were frequently b****y and dishonest. John Adams might not have needed Donald Trump to open up any libel laws today to sue James Callender — editor of a partisan pro-Jefferson rag — for printing that he had a “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.”

Stengel makes fun of the idea of a “marketplace of ideas,” which “has a long history going back to 17th-century English intellectual John Milton, but in all that time, no one ever quite explained how good ideas drive out bad ones, how truth triumphs over falsehood.” What Milton actually wrote was a moral statement: “Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter? Her confuting is the best and surest suppressing.”

Did Milton think this openness came with no costs, and a certainty of success? Milton was nearly killed for daring to write in support of regicide during the English Civil Wars when Charles II was restored to the throne. So it seems a stretch, to put it mildly, to claim that Milton was unaware that the side of truth might sometimes lose out. And, really, no supporter of an unregulated “marketplace of ideas” model of discourse believes it ensures that the truth wins out every time and in the short term. Stengel, then, is arguing with himself — and revealing a profound ignorance of history to boot.

American liberal free expression has survived technological changes before. It was May 24th, 1844 when “What hath God wrought?” was wired by telegraph between Washington and Baltimore, marking the first long distance American telecommunication. Radio, major national newspapers, TV, and other innovations followed, each of them deeply changing our information ecosystem. But none fundamentally or radically changed it such that free expression was rendered obsolete. So you will have to forgive me if I am skeptical that this latest change — racist internet trolls armed with frog memes and Russians armed with algorithms — is the one that heralds the sell-by date of what I hold to be my most precious human right.

The internet age does not require a regime of more active censorship, and mass communication technology does not make valuing free expression naive. The people now claiming liberal notions of free speech belong to a bygone era probably just never had very strong commitments to liberal free speech principles to begin with. It would be more honest and more fruitful for them to just say so.

Some principles do need rethinking. But others need defending. None needs to be defended more strongly than free expression, which is constantly under siege by would-be censors bearing erroneous and badly thought out arguments.​