Wednesday, March 23, 2005

Killing Free Speech in Order to Save It


We all know about McCain-Feingold. Now we have the slippery logic of Prof. Geoffrey R. Stone of the University of Chicago Law School. Stone is a colleague of Cass Sunstein, a fellow traveler on the road to thought control.

Stone is debating Eugene Volokh at Legal Affairs Debate Club, on the topic "Forget Free Speech?" Stone slides this immodest proposal into his rather slick "defense" of free speech:
I agree that private employers are different. Even in employment discrimination law, we recognize that it would be inappropriate for the law to intrude too deeply into personal relationships. Thus, small employers are exempt. Similarly, we don't make it unlawful for a person to refuse to date a person of another race. Thus, the law shouldn't concern itself with individuals who decide not to buy the Dixie Chicks's records because they dislike their political views.

But the logic of this doesn't extend to a decision, for example, by General Motors to refuse to employ people who oppose the war in Iraq. Large corporations have substantial market power, and I see no reason to allow them to leverage that market power in this way any more than we let them discriminate on the basis of religion....

To the point about using antidiscrimination laws to promote tolerance of people of other races, religious, and ethnicities, I would say the same about political differences. Isn't that the view that Lee Bollinger championed as a primary function of the First Amendment itself? Certainly, a more "tolerant society," a less polarized society, one in which citizens come to understand, in Jefferson's words, that not "every difference of opinion is a difference of principle," is something to which we should aspire. And, as for the Klansman, perhaps tolerating his presence in the workplace would be good both for him and for us. No?
So, let's just take another big slice out of liberty and prosperity by placing yet another burden on the private sector, the burden of being an equal-viewpoint employer. Why should General Motors, regardless of its size, be required to operate under such constraints? General Motors ought to be able to hire persons whose performance will help the bottom line, and thus help society. If an employee says something that embarrasses General Motors and potentially hurts its bottom line, General Motors ought to be able to fire that person -- no ifs, ands, or buts.

But in the world of Sunstein and Stone, we can -- and must -- legislate and regulate our way to a "tolerant society." Hah! Notice how well it worked when forced busing was used to integrate schools?

Stone, slippery lawyer that he is, doesn't give a hoot about Klansmen. What he really wants is to make it illegal for employers to fire anyone for saying anything that seems critical of government policy (Republican policy, in particular). When that's done, he can take up the cudgels for the Dixie Chicks and go after radio stations that refuse to play their songs.

What Sunstein and Stone mean by "free speech" is "forced listening." Reminds me of the brainwashing scene in the movie 1984. They'll like the results as long as they get to play Big Brother.

UPDATE: Yep, Big Brother. Here's Stone in a later installment of the debate:
Even if I concede arguendo that private discrimination on the basis of viewpoint need not be equated with private discrimination on the basis of race, religion, or gender, we have to be concerned about private discrimination that begins seriously to threaten the marketplace of ideas. The point isn't that such private discrimination would be unconstitutional, but that the government should step in and prohibit such discrimination through legislation if it begins to warp public debate.
In other words, if I'm in control of government and I decide that "private discrimination on the basis of viewpoint" has threatened "the marketplace of ideas," I should step in to prohibit such discrimination when, in my infallible judgment, it begins to "warp" public debate. I therefore decree the following:
  • An employer can't fire anyone who makes a public statement critical of the employer.
  • A right-wing radio talk-show host who has a huge audience must give equal time to left-wing ideas.
What Stone and his ilk don't seem to understand (or choose to ignore) is that government involvement (choosing sides) warps the public debate. For every employer who fires a critical employee and for every popular right-wing talk-show host there are legions of protestors and political opponents whose messages the mainstream media amplify, with gusto. That's the marketplace of ideas in action. Or do Stone and his ilk favor the suppression of the mainstream media? I doubt it very much. They're just looking for a pseudo-legal justification for the suppression of speech they don't like.

What the marketplace of ideas needs is less government involvement, not more.

UPDATE II: Stone, in his most recent volley, adds this:
My argument does not meet any of the conditions for McCarthyism (unless you think I am being intentionally manipulative in order to score partisan political gain).
He said it.

UPDATE III: And Eugene Volokh nails him:

It does sound, though, like the definition of "McCarthyism" that's being suggested is mighty convenient for its users....After all, under this definition exactly the same criticisms—with exactly the same level of substantive merit—would be "McCarthyism" when used by one side and quite proper when used by the other.

Cheney says that voting for Kerry would endanger the nation. That's McCarthyism, because it comes from this bad administration. Nancy Pelosi says that voting for Bush would endanger the nation. That's just fine, if you think Democrats are open-minded, unself-righteous (except, of course, when they're harshly deriding the Bush Administration), attentive to separation of powers and the rule of law, interested in debate, and sophisticated and introspective, with complex views of faith and suitable appreciation for gray areas. Oh, and also respectful of international law and filibusters.

Such use of the term "McCarthyism," which seems to presuppose what it's trying to show—which is that one's targets are bad people—isn't terribly useful for sober analysis. Wouldn't it have been more profitable to instead discuss, for instance, whether voting for Bush or Kerry would indeed endanger the nation? That was actually a pretty important question a few months ago.

As best I can tell, public debate about the Administration, the war, civil liberties, and the best ways to fight terrorism has been quite vibrant. If there's a "substantial chilling effect on the willingness of individual citizens to criticize the government," I haven't noticed it. The 2004 Democratic election campaign, for instance, didn't seem to be unduly obsequious to the Bush Administration. Nor do I see much evidence of "an exaggerated sense of fear in the public," or even attempts to create such a fear. The world is a dangerous place and I have no reason to think that people are any more fearful of terrorism than they ought to be.

So I think free speech in America is pretty healthy. There are some exceptions; I have long, for instance, criticized hostile environment harassment law, a vague, broad, and viewpoint-based set of speech restrictions. Likewise, some media responses to supposedly unpatriotic speech have indeed been misplaced; Bill Maher, for example, got a bum deal. And, sure, many people in many places—government, universities, the media—are smug and closed-minded, and too often try to name-call people into submission. That ought to be fought. Still, things today are pretty good.

And tomorrow? No-one can tell for sure, but fortunately there are plenty of people and organizations who will fight future attempts at repression, whether from the left or from the right. Geof, I know you'll be one of them, and I'm very glad about that.
In other words, if you really favor free speech, you favor it for everyone,* not just the lefties favored by Stone.
* I make an exception for overtly traitorous speech, which I come to in a future post about legal absolutism.