Why Care About Freedom Of Speech?

The terms of reference for the Government’s independent media inquiry are limited but its ambitions apparently are not.

The inquiry released an issues paper last Wednesday which raised a big philosophical question: why should we care about press and speech freedoms?

Citing Oliver Wendell Holmes’s famous justification for freedom of the press, the paper asked, “Does this ‘marketplace of ideas’ theory assume that the market is open and readily accessible?”

The ‘marketplace’ theory holds remarkable currency. Justice Holmes provided the world with the metaphor (“free trade in ideas”) but the concept is older, variously attributed to John Milton in the 17th century and John Stuart Mill in the 19th. The argument is simple and appealing: we need to allow controversial statements because only through open discussion can issues be resolved. Democracy requires debate, so speech liberties help us maintain our democracy.

But the ‘marketplace of ideas’ theory is actually pretty flimsy support for freedom of speech.

After all, actually-existing non-metaphorical markets are anything but free. Many goods are illegal to trade or own – drugs, guns, hand grenades. Products and services are highly regulated. The circumstances which they are sold is carefully proscribed – most obviously alcohol or cigarettes. Even in an ideal ‘free market’ there would be much state involvement. Property rights have to be protected and contracts enforced.

So, as the economist Ronald Coase once sharply pointed out, if we treated ideas and speech as we treat the real marketplace, we’d be blessing all sorts of objectionable government interventions. (Coase went on to wonder why intellectuals were so accepting of regulation in real markets but not in metaphorical ones; he was writing in the early 1970s, before intellectual fashion had completely turned against free speech.)

This is not just being tediously literal. The ‘marketplace of ideas’ metaphor is the only justification for press freedom the issues paper mentions, and it frames the paper’s questions about ‘access’ to the press. The inquiry asks whether individuals (or groups) should be granted a right of reply if they have opposing views, or if their “honesty, character, integrity or personal qualities” have been questioned.

Implicit in the marketplace of ideas theory is that freedom of speech has a purpose. It is utilitarian. The only way to come to the truth about an idea is to freely debate it. The best ideas – that is, those which are most true – will out-compete the rest.

Yet it’s trivially easy to demonstrate this ‘marketplace’ is distorted. Some have access to louder megaphones than others, as everybody keeps pointing out.

And if speech has a utilitarian purpose, it never quite achieves its ends – even once ‘truth’ has been obtained through free discussion, speech freedoms continue to allow wrong ideas to be broadcast.

The utilitarian approach sows the seeds of its own failure. Twentieth-century commentators were more honest about that. One commentator in Forum in 1949 argued free expression “is a right because such expression is of benefit to the community. Obviously, then, the community through the government may at any time limit this right for its own protection.”

The marketplace of ideas theory doesn’t capture the true value we place on free speech. No-one believes that, for instance, 9/11 Truthers no longer have a right to share their opinions, no matter how discredited and ludicrous those may be.

Instead, we need to think of freedom of speech as a right, not a tool to achieve an end.

Freedom of speech is a subset of freedom of conscience. Not for nothing does the first amendment of the United States constitution bundle the right to exercise religion with the freedoms of speech and press. Liberty of thought is meaningless without a corresponding liberty of expression. What we believe, we should be able to say.

The American revolutionaries argued a people were only as free as their press. Echoing those sentiments, the legal academic Lee C Bollinger wrote in 1983: “Free speech is not just a practical tool for making systemic repairs, but an affirmation or statement of what we value as a people.”

(Just because the right to free speech cannot be absolute does not make it less of a right – the common law has for centuries recognised speech is limited insofar as it is threatening or defamatory. Expression is not unlimited either. Punching someone in the face may be “expressive” but does not deserve free speech protection.)

Characterising freedom of speech as a right rather than an instrument has policy consequences.

For instance, the right to speak must be also the right not to speak; to determine the content of your speech. This principle is breached clearly by one of the major proposals of the media inquiry issues paper – a legally guaranteed right of reply which would treat newspapers as regulated common carriers.

Those who hold a ‘marketplace of ideas’ view of free speech may find this proposal unobjectionable. But those who believe free speech is a human right should be repulsed. Perhaps newspapers should open their pages for wide-ranging debate. But that’s ultimately between them and their readers – a free speech choice, not a free speech requirement.

As Bollinger argued, “The reason we shelter speech is as important as the speech we shelter.” The frame in which we understand free speech shapes our attitude towards it. The dominant policy view – seemingly held by those who drafted the terms of reference to the media inquiry and those who drafted its issues paper – is that freedom of speech is only of utilitarian importance. But that view has too many limitations and inconsistencies to be useful.

We do not want the Government managing public debate for all sorts of reasons. First among them is that any attempt to do so will necessarily abridge our basic right to freedom of speech.