Monday, April 23, 2012
Twists, Turns and Academic Acrobatics in Free Speech Discourse: A well-meaning sophism?
I here take issue with a chapter from the recent volume More or Less: Democracy and New Media, in which Bibhu Aggarwal takes on the Andrew Bolt controversy as a free speech issue in The Bolt Case: Silencing Speech or Promoting Tolerance? This chapter really riled me on first reading. It riled me because it is a perfect example of almost every reason that the way most people talk about “freedom of speech” is incoherent.
To begin with, you may or may not have noticed that the standard academic free speech argument follows a template something along the lines of…
Speech is an intrinsic part of human freedom. We protect speech for three main reasons. First, free speech is integral to democratic process; it can be used to hold people accountable and so on. Second, free speech is “an essential precondition of the search for truth”. An unrestricted “marketplace” of speech is conducive to progress towards truths we can rely on, and can test truth so they don’t become dead dogma. Thirdly, free speech promotes individual autonomous development, and because we are all equal in a democracy, one person’s autonomous development cannot come at the expense of another’s. [this one is made up but you can find plenty of these around the place, or in the present article discussed]
Then it will say - but, and there is always a but (or in this case a nevertheless…), free speech is not absolute, nor has or should it ever be (a point which I agree on but that is not relevant to the argument)…
Here is an example of a free speech “but” in the piece by Bibhu Aggarwal on the Andrew Bolt case;
“…nevertheless, we have on occasion sought to restrict the right to free speech. While a healthy democracy must accommodate debate and disagreement, it need not provide an open forum for hate, prejudice and lies. This is so for precisely the same reasons we value free speech. First, hate, prejudice and lies undermine the Australian commitment to democracy. It shifts the focus of political debate from the merits of an argument, to character assassination; and it excludes those who wish to participate by capriciously devaluing their contributions [why are these not debateable within the prerogatives of freedom of speech?]. Second, rather than assisting in the search for truth, the spread of hate, lies and prejudice often leads us to embrace falsehoods, at least for a short while. And finally, while one’s self fulfilment is important, we are all equal partners in our great democracy; one person’s autonomy cannot come at the expense of another’s. In short, at the heart of a healthy democracy is not simply a right to free speech, but also mutual respect and understanding among citizens.”
So he links freedom of speech to the very reasons “we” value free speech in the first place, which should immediately set alarm bells ringing because this debate has in one move become nothing to do with “freedom” and “speech” and everything to do with values. That is, all of a sudden we are talking actual politics, while acting a bit like we are talking about “freedom”. Who doesn’t like freedom right? The point is, if freedom of speech was anything it would be the freedom to hate, lie and be prejudiced, otherwise it would just be the freedom to be nice to each other, which is not freedom, it is Play School.
Free speech here in Aggarwal’s chapter (and in fact, anywhere you find it) is in no way a stand-alone value. It is linked, inescapably, to a whole host of other political commitments. There is no such thing as a standalone “free speech” argument, unless you are a free speech anarchist, which almost no-one is (they tend to fail the “advertising cigarettes to children” or “condoning computer generated child pornography” test, although you shouldn’t laugh too hard at the later as this is exactly the test that the US Supreme Court failed in Ashcroft v. Free Speech Coalition). Aggarwal here links “free speech” to some fairly typical things like democratic process, the search for truth, and self-fulfilment. So what if I don’t like those values? Am I against free speech? But surely the relative value of democracy, truth, and self-fulfilment are self-evident, are beyond doubt? Well…no, and that is exactly what “freedom” of speech at its core is about safeguarding; the holding of “known truths” as dead dogma. What most people don’t realise is that is exactly what they are doing when they talk about free speech in this way – free speech is good, but you can’t question democracy, self-fulfilment, or the search for truth. What is ostensibly an argument about freedom of speech is really an argument about other values that inform a commitment to a certain type of freedom, not an instinctive marriage of the terms “freedom” and “speech”
The other problem here is that it is not at all clear that “freedom” of speech actually leads to the things that it is regularly claimed to. Is freedom of speech integral to democracy? Well, that depends on how you conceive of democracy. If you conceive of it the way the Australian High Court does, you only come up with a very narrow interpretation of the amount of free speech necessary for democracy to function. The link of free speech and democracy could also generate a majority right to ban or censor certain speech, given that this was done along the lines of democratic process. Does free speech actually lead to “more” truth? Well, no. At best free speech leads to truth in polite academic seminars, but even there there are certain rules of engagement, certain baseline conditions of deliberation that must be upheld by participants such that a fruitful discussion can take place. In the courtroom, where finding the truth is the paramount aim, speech is highly restricted. The probability of “free” speech leading to truth is thus highly context dependent. More speech does not necessarily lead to more truth.
Aggarwal’s most disappointing move comes when he leans on Mill’s argument from infallibility and then we watch it dissolve before our very eyes two pages later when he decides that he doesn’t like something. This is because, like all well meaning people, he is oblivious to the fact that Mill was talking about him as well, here in the present, not just everyone he doesn’t like who don’t have his window into the infinite truth of the universe (your Andrew Bolts, James Keegstras and so on). This is a problem faced by all liberals that seek to lean on the Millian tradition for support but then want proscribe something that falls short of the “positive instigation to some mischievous act” that Mill posited as the legitimate limit of freedom of speech.
Here is the move in detail.
First of all, in the section entitled “Free Speech and the Search for Truth”, Arrgarwal outlines;
We can never be certain that the opinion we are trying to suppress is false. There is a real risk that by silencing speech we are depriving ourselves of some truth; a risk that far outweighs the possibility that lies, hate and prejudice catch on…Freedom of speech is important because any attempt to suppress speech may be profoundly misguided; what is acceptable as indisputable today may well be proved wrong tomorrow. The best we can hope for is that free and open debate will eventually expose fallacies of fact for what they are (p. 249-50).
OK – this is the Millian argument that we shouldn’t censor speech because human beings are fallible and they might be wrong (I don’t think this is a convincing argument - and if it is it is completely paralysing for political action in general - but this is the argument he has used so I will hold him to it). However, in the very next section, entitled “Placing Limits on Freedom of Speech”, he states;
Sometimes we must place limits on freedom of speech, and this is so for precisely the same reasons we value freedom of speech.
OK – so freedom of speech can’t be absolute, for we are not anarchists. But further, under the heading “Journalistic Standards for Truth” (and I kid you not that it says this not two pages after he has cited a derivative of Mill’s infallibility argument);
(h)owever, where we are certain that a statement is wrong, its wide dissemination does little to further our quest for truth, and may even obstruct it.
Get it? I will cite the argument from infallibility long enough to make you think I actually believe it, but then I will discard it at the first opportunity because they obviously didn’t know what they were doing when they locked Galileo up but I know what I am doing now.
Another problem Arrgarwal faces is that he has no way (nor do I think there is a way) to decide which side of the autonomy question is most worthy, so he just picks the one he likes. “What critics of the Bolt decision have failed to explain is why Andrew Bolt’s personal autonomy should be allowed to trump that of the individuals in his articles” (p. 253). And what he has failed to explain is why their autonomy trumps his – here autonomy arises on both sides of the question and is thus for me highly problematic.
Before you go jumping up and down about me being a closet Andrew Bolt fan, my point is not at all that Arrgarwal doesn’t have a just cause, or that I’m criticising him for pushing a partisan agenda (what else would you push in politics?) – I just think it takes a whole lot of pointless intellectual gymnastics to make it look anything like “freedom of speech” – why not just take a position and defend it like the position it is? It would be faster, and a lot more honest. Arrgarwal does have a point - Andrew Bolt is of little or no redeeming social value - it’s just that he doesn’t have a free speech point. My point is that this kind of free speech argument is incoherent and unnecessarily convoluted, and thus does his substantive agenda a disservice. From the outside, this just looks like a case of "like something, call it free speech. Don’t like it, claim that “sometimes we must place limits on freedom of speech, and this is so for precisely the same reasons we value freedom of speech”" (p. 251). This will, of course, look ridiculous and counter-intuitive to most people, who surprisingly associate freedom of speech with the freedom to say what you like. Right or wrong, you will have a hard time explaining your position to people in the vocabulary of “freedom of speech”, unless they are completely blown away by such technical terms as “argument from truth” or “autonomy as self-fulfilment”, or an appeal to a past Canadian court decision or a racial discrimination statute like they were signed sealed and delivered straight from the “self-evident truth” zone.
And who is this “we” Arrgarwal constantly speaks of? It is, unfortunately, a group of people who already agree with him or they wouldn’t have read past page one. If “we” were in precise agreement regarding the reasons we value freedom of speech, then there would be no controversy to speak to. The Aggarwals and the Bolts of this world would be holding hands already. You are not going to convince anyone that does not already agree with you with this argument - if you haven't already previously or intuitively reached the conclusion that Andrew Bolt = BAD.
As it happens, there is not only likely to be debate and disagreement regarding why we value freedom of speech, but even if we could agree on that there should be dispute about exactly what these values mean, a dispute that freedom of speech itself is historically meant to facilitate. Additionally, if you lean too hard on “we” you are just positing an understanding of consensus as truth (“we” are all agreed and so it is thus), something else free speech is explicitly supposed to guard against (“if all mankind minus one…”). The problem with his thinking here is one that is common to free speech theory, and in fact common to political discourse in general; they locked up Gallileo, what were they thinking? They were wrong then because they didn’t realise they were fallible, but we would never make that mistake...
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