Search results for the tag, "Free Speech"
October 7th, 2004
Published in the Spectator (Hamilton College) in two parts, October 7 and October 14, 2004.
Fyodor Dostoyevsky once said that we can judge a society’s virtue by its treatment of prisoners. Likewise, we can judge a society’s freedom by its treatment of minorities. For freedom makes it safe to be unpopular; this is why the First Amendment fundamentally protects dissent. Playing the title character in the movie The American President (1995), Michael Douglas crystallizes the point: “‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’”
This is of course a Tinseltown vision, familiar more from the mind of Voltaire than in daily life. What if the speaker were calling interracial marriage “a form of bestiality,” a la Matt Hale of the Creativity Movement (formerly the World Church of the Creator)?[1] What if the speaker were waving a placard that says, “God Hates Fags,” a la supporters of Jael Phelps, a candidate for city council in Topeka, Kansas?[2] What if the speaker were suggesting that “more 9/11s are necessary,” a la professor Ward Churchill?[3]
Such notions represent so-called hate speech, which critics seek to criminalize. They argue that speech is a form of social power, by which the historically dominant group, namely, male WASPs, institutionally stigmatizes and harasses the Other. In this way, mere epithets can inflict acute anguish, so that certain words become inherently abusive, intimidating and persecutory. Explains Daniel Jonah Goldhagen, a historian of the Holocaust: We should view such “verbal violence . . . as an assault in its own right, having been intended to produce profound damage—emotional, psychological, and social—to [one’s] dignity and honor.”[4] Adds law professor Charles Lawrence, “The experience of being called ‘nigger,’ ‘spic,’ ‘Jap,’ or ‘kike’ is like receiving a slap in the face.”[5]
Now, that words are never just words, critics are right. With words, a speaker can reach into your very soul, imprinting searing, permanent scars. With words, a speaker can incite individuals to insurrection or vigilantism. Words are weapons. Yet words are always just words, since the breaking of sound waves across one’s ears is qualitatively different from the breaking of a baseball bat across one’s back.[6] Put simply, sticks and stones may break my bones, but words can never truly hurt me.
Specifically, as physical acts, deeds entail consequences over which one has no volition; an engaged fist hurts, whether one wants it to or not. By contrast, one can control one’s reaction to language; to what extent a locution harms one depends ultimately on how one evaluates it.[7] After all, taking responsibility for one’s feelings distinguishes adults from adolescents. Thus, as law professor Zechariah Chafee puts it, banning hate speech “makes a man a criminal . . . because his neighbors have no self-control.”[8] Indeed, with torture chambers in Egypt, genocide in the Sudan and suicide bombing in Israel, equating words with violence is odious. As writer Jonathan Rauch notes, “Every cop or prosecutor chasing words is one fewer chasing criminals.”[9] Plus, if we want to ban speech because it inspires violence, doesn’t history demand that we start with our most beloved book—the Bible—in whose name men have conducted everything from war to inquisition to witch burnings to child abuse?[10]
Still, critics assert that hurling forth scurrilous epithets silences people. The wound is so instantaneous and intense that it disables the recipient. But the law should be neither a psychiatrist nor a babysitter; it should not promote the message, “Peter cast aspersions on Paul. Ergo, Paul is a victim.” That lesson only entails a race to the bottom of victimhood, and implies that one should lend considerable credence to the opinions of bigots. To the contrary, one should recognize that the opinions of bigots are the opinions of bigots.
Consider an incident from the spring of 2004 at Hamilton Collee, wherein one student, face to face with another, called him a “fucking nigger.” Far from cowering, the black students on campus, with the full-throated support of their white peers and faculty, reacted with zeal. Just as the American Civil Liberties Union (A.C.L.U.) predicted 10 years earlier: “[W]hen hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance.”[11] Sure enough, with a newly formed committee, a protest, a petition, constant discussion, letters to the editor and articles in the school newspaper, this is exactly what ensued. As if stung, the community sprang into action and bottom-up, self-censorship obviated top-down, administrative censorship.
This is likewise the case outside the ivory tower, since as a practical matter, the more outrageous something is, the more publicity it attracts. Perhaps the most famous example comes from the late 1970s, when neo-Nazis attempted to march through Skokie, Illinois, home to much of Chicago’s Jewish population, many of whom had survived Hitler’s Germany. Although the village board tried to prevent the demonstration, various courts ordered that it be allowed to proceed. Of course, by this time, notoriety and counterprotests caused the Nazis to change venues. Similarly, on September 13, 2001, the Christian fundamentalists Jerry Falwell and Pat Robertson accused those who disagreed with their ideology of begetting the terrorist attacks two days earlier. Both have since lost their once-significant political clout.
Better yet, the claim of Holocaust deniers that the Auschwitz gas chambers could not have worked led to closer study, and, in 1993, research detailed their operations. Even the repeatedly qualified, recent musings about gender differences by Harvard president Larry Summers ignited a national conversation about the latest science on the subject. The lesson here is that just as democracy counterbalances factions against factions, so speech rebuts speech. And rather than try to end prejudice and dogma, we can make them socially productive.
For this reason, we should practice extreme tolerance in the face of extreme intolerance. We need not give bigots microphones, but we need to give ourselves a society where, as a 1975 Yale University report describes it, people enjoy the unfettered right to think the unthinkable, mention the unmentionable, and challenge the unchallengeable.[12] Thomas Jefferson got it exactly right upon the founding of the University of Virginia: “This institution will be based on the illimitable freedom of the human mind. For here, we are not afraid to follow truth where it may lead, nor to tolerate error so long as reason is free to combat it.”[13]
Furthermore, with laws built on analogy and precedent, even narrowly tailored restrictions lead to wider ones.[14] Indeed, the transition to tyranny invariably begins with the infringement of a given right’s least attractive practitioners—“our cultural rejects and misfits . . . our communist-agitators, our civil rights activists, our Ku Klux Klanners, our Jehovah’s Witnesses, our Larry Flynts,” as Rodney Smolla writes in Jerry Falwell v. Larry Flint (1988).[15] And since free speech rights are indivisible, the same ban Paul uses to muzzle Peter, Peter can later use to muzzle Paul. Conversely, if we tolerate hate, we can employ the First Amendment for a nobler good, to defend the speech of anti-war protesters, gay-rights activists and others fighting injustice that is graver than being called names. For example, in the 1949 case Terminiello v. Chicago, the A.C.L.U. successfully defended an ex-Catholic priest who had delivered a public address blasting “Communistic Zionistic Jew[s],” among others.[16] That precedent then formed the basis for the organization’s successful defense of civil rights demonstrators in the 1960s and 70s.[17]
And yet critics contend that since hate speech exceeds the pale of reasonable discourse, banning it fails to deprive society of anything important. As much of the Western world has recognized, people can communicate con brio sans calumny. Human history is full enough of hate; shouldn’t we try to make our day and age as hate-free as possible?
Yes, but not as a primary. As writer Andrew Sullivan explains, “In some ways, some expression of prejudice serves a useful social purpose. It lets off steam; it allows natural tensions to express themselves incrementally; it can siphon off conflict through words, rather than actions.”[18] The absence of nonviolent channels to express oneself only intensifies the natural emotion of anger, and when repression inevitably comes undone, it erupts with furious wrath. Moreover, “Verbal purity is not social change,” as one commentator puts it. [19] Speech is a consequence, not a cause of bigotry, and so it can never really change hearts and minds. (In fact, a hate speech law doesn’t even attempt the latter, since it treats as bigots words instead of people.) Rather, a government gun sends the problem underground, and makes bigots change the forms of their discrimination, not their practice of it.
Finally, consider two crimes under a hate speech law. In each, I am beaten brutally, my jaw is smashed and my skull is split in the same way. In the former my assailant calls me a “jerk”; in the latter he calls me a “dirty Jew.” Whereas assailant one receives perhaps five years incarceration, assailant two gets 10. This is unjust for three reasons. First, we usually consider conduct spurred by emotion less abhorrent than that spurred by reason. This is why courts show lenience for crimes of passion, and reserve their greatest condemnation for calculated evil; hence the distinction between first and second-degree murder. A hate speech ban reverses this axiom. Second, such a law makes two crimes out of one, levying an additional penalty for conduct that is already criminal.
Third, the sole reason assailant two does harder time is not because hate motivated him, but because his is hate directed at special groups, like Jews, blacks or gays. Hate crime, then, turns out not to address hate, but politics. For to focus on one’s ideology—regardless of how despicable that ideology is—rather than on the objective violation of a victim’s rights, politicizes the law. Observes writer Robert Tracinski, such legislation “is an attempt to import into America’s legal system a class of crimes formerly reserved only to dictatorships: political crimes.”[20]
In the end, we must make a fundamental decision: Do we want to live in a free society or not? [21] If we do, then we must recognize that the attempt to criminalize hate is not only immoral, it is also impractical. For freedom will always include hate; progress thrives in a crucible of intellectual pluralism; and democracy is not for shrinking violets. As Thomas Paine remarked, “Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.”[22] This, too, is the view of the United States Supreme Court, which in cases like Erznoznik v. Jacksonville (1975) and Cohen v. California (1971) has ruled that however much speech offends one, one bears the burden to avert one’s attention.
What then should we do? If the difference between tolerance and toleration is eradication vs. coexistence, then, as Andrew Sullivan concludes, we would “do better as a culture and as a polity if we concentrated more on achieving the latter rather than the former.”[23]
Footnotes
[1] As quoted in Nicholas D. Kristof, “Hate, American Style,” New York Times, August 30, 2002.
[2] Eric Roston, “In Topeka, Hate Mongering Is a Family Affair,” Time, February 28, 2005, p. 16.
[3] Ward Churchill, Interview with Catherine Clyne, “Dismantling the Politics of Comfort,” Satya, April 2004.
[4] Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (New York: Knopf, 1996), p. 124.
[5] Charles R. Lawrence III, “If He Hollers Let Him Go: Regulating Racist Speech on Campus,” Duke Law Journal, June 1990.
[6] Stephen Hicks, “Free Speech and Postmodernism,” Navigator (Objectivist Center), October 2002.
[7] Stephen Hicks, “Free Speech and Postmodernism,” Navigator (Objectivist Center), October 2002.
[8] Zechariah Chafee Jr., Free Speech in the United States (Cambridge: Harvard University, 1941), p. 151.
[9] Jonathan Rauch, “In Defense of Prejudice,” Harper’s, May 1995.
[10] Nadine Strossen, Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights (New York: Scribner, 1995), p. 258.
[11] [Unsigned], “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994.
[12] “Report of the Committee on Freedom of Expression at Yale,” Yale University, January 1975.
[13] “Quotations on the University of Virginia,” Thomas Jefferson Foundation.
[14] Eugene Volokh, “Underfire,” Rocky Mountain News (Denver), February 5, 2005.
[15] Rodney A. Smolla, Jerry Falwell v. Larry Flint: The First Amendment on Trial (Urbana: University of Illinois, 1988), p. 302.
[16] As quoted in Terminiello v. Chicago, 337 U.S. 1 (1949).
[17] [Unsigned], “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994.
[18] Andrew Sullivan, “What’s So Bad About Hate?,” New York Times Magazine, September 26, 1999.
[19] As quoted in [Unsigned], “Hate Speech on Campus,” American Civil Liberties Union, December 31, 1994.
[20] Robert W. Tracinski, “’Hate Crimes’ Law Undermines Protection of Individual Rights,” Capitalism Magazine, November 16, 2003.
[21] Salman Rushdie, “Democracy Is No Polite Tea Party,” Los Angeles Times, February 7, 2003.
[22] Thomas Paine, “The Crisis,” No. 4, September 11, 1777, in Moncure D. Conway (ed.), The Writings of Thomas Paine, Vol. 1 (1894), p. 229.
[23] Andrew Sullivan, “What’s So Bad About Hate?,” New York Times Magazine, September 26, 1999.
April 20th, 2004
The judicial history of free speech in America is the story of how justices—whom the Constitution designates to check and balance the power of congressmen and the president—are instead unwilling to act against them, lest a backlash against judicial activism ensue. As FDR put it while trying to pack the Court in 1937, the American people expect the unelected third branch of government to fall in line behind the elected other two.[1] Of course, the judiciary is a deliberately antidemocratic body; as the last bulwark against the tyranny of the majority, it tempers democracy’s excesses. In this way, judges should ensure that government’s powers remain wedded strictly to the protection of the Constitution, which, regarding free speech, means the protection of the First Amendment. The specific purpose of that Amendment, then, is the protection of minorities and dissent.
Alas, from its inception, the Supreme Court has viewed the First Amendment as subject, if not subordinate, to majority rule, or “democratic deliberation.” To be sure, the Court sometimes protects offensive speech, always lauds the value of free speech, and elevates the First Amendment above other constitutional guarantees. Yet the Court simultaneously undercuts free speech by acknowledging a higher value. That value goes by different names—“social utility” and “community standards” summarize them—and mandates the categorization of speech into “political” vs. “commercial” pigeonholes. This technicalized morass is today’s state of the First Amendment.
Now, just as we can best measure the strength of steel under stress, so the best tests of principle come over the most nauseating examples. As philosopher Ayn Rand observed, although it is uninspiring to “fight for the freedom of the purveyors of pornography or their customers . . . in the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners . . . [T]he disgusting nature of the offenders makes . . . a good test of one’s loyalty to a principle.”[2] The test here is Ashcroft v. Free Speech Coalition (2002), in which the latter challenged the constitutionality of the 1996 Child Pornography Prevention Act (C.P.P.A.). The C.P.P.A. criminalized sexually explicit images that depict minors but were produced, typically via computer imaging, without using any actual children.
C.P.P.A. supporters argue, in the Court’s summary, that “harm flows from the content of the images, not from the means of their production” (3). In other words, virtual child pornography threatens children in “less direct, ways” than real-life child pornography (3). For instance, by increasing the chance that pedophiles become molesters, virtual images “whet the appetites of child molesters” (4).
But any way one rationalizes the C.P.P.A., such images fail to intrinsically harm any flesh and blood minor; the Ferber test requires an “intrinsic” connection. Viewing, after all, does not necessitate acting; one can be a pedophile but not a child molester. Similarly, whereas viewing virtual images coerces nobody and involves only the viewer and the producer, viewing real images, as per New York v. Ferber (1982), constitutes criminal coercion of children. The C.P.P.A. collapses these distinctions—distinctions that Ferber relied on as a major reason for its verdict—but the “casual link,” as the Court notes, “is contingent and indirect” (12); the government needs a “significantly stronger, more direct connection” (15-16).
Furthermore, the government’s arguments turn, not on any actual coercion, but on potential coercion; this is why the C.P.P.A. resorts to such hesitating, noncommittal words as images that appear to show minors in sexually explicit conduct (3), or that convey that impression (4). The cardinal principle of liberty, however, must always take precedence: so long as one refrains from directly initiating force against others, one must be free to pursue one’s own version of happiness—including, however despicable, taking pleasure from virtual pedophilia.
C.P.P.A. supporters argue next that child pornography “as a whole . . . lacks serious literary, artistic, political, or scientific value” (8). Any redeeming values are de minimis, since kiddie porn only perpetuates prurience, pedophilia, and child molestation. Yet however indecent one’s values may be—with the exception of child molestation, which necessitates coercion—freedom does not mean upholding a social consensus, but the autonomy of each individual to choose his own values. No, one’s man treasure is not another’s trash, but using the government to ban certain trash necessarily foists the values of some, usually the majority, on others, usually a minority. American history is rife with examples. The Comstock Act (1873) criminalized as pornography any information concerning birth control. The National Endowment for the Arts continually funds “art” that many would taxpayers consider unworthy of that name. In Vietnam and in Iraq today, we try to impose Western values on many who simply do not want them (at least without their own adaptations).
Indeed, it is sheer folly to make government the arbiter of whether books, magazines, newspapers, radio, television, theater and film have value, let alone “literary, artistic, political, or scientific” value—or, most ominous of all, “serious value.”[3] Judges call such speech lacking “unprotected,” but this is the zenith of censorship. For when government takes it upon itself to decree which of its citizens’ values have value—to dictate which words deserve freedom and which make you a criminal—it exceeds its job of impartiality and assumes arbitrary power. As such, the First Amendment no longer derives from the Constitution but from popular predilections.
And yet, in his dissent, Chief Justice Rehnquist observes that although the “C.P.P.A. has been on the books, and has been enforced, since 1996,” movies produced thereafter, like American Beauty (2000) and Traffic (2001), which the defendants argue the C.P.P.A. would have banned, nonetheless proceeded unabated—and won Academy Awards (Rehnquist, dis. op., 5). Rehnquist thus argues that the C.P.P.A. “need not be” construed to ban such movies (Rehnquist, dis. op., 7). Of course, this is Rehnquist’s construal; one can easily envisage how Attorney General John Ashcroft, or some like-minded zealous puritan, would think otherwise. After all, America is not Alice in Wonderland, and words do not mean, as Humpty Dumpty said, “what I choose [them] to mean.” Rather—if we are to have a government of laws, not a government of men—words must mean what they actually say.
Finally, since laws are rarely repealed, ideological organizations have become notorious for mining case law digests to unearth some obscure precedent, whose language they construe, years if not decades later, to push for a ban on something else—and then something else.[4] Therefore, the alleged limits on censorship, the legalistic conditions of where and when, are insignificant. While the high court today may ban “only” nonvirtual child pornography, using the same nonabsolutist precedents, a future Court may well ban gay porn, and still another Court may ban pornography altogether. Since we have already surrendered such power, the principle has been established, and, as Ayn Rand observed, the “rest is only a matter of details—and of time.”[5] Censorship is the canary in the political coalmine, and the anti-minority, collectivist rationales, however piecemeal and whatever pullbacks, bring us ever-closer to a Fahrenheit 451 society. Do not say “it” cannot happen in America. Having already criminalized defamation and “fighting words”—and with a legal history including Dred Scott, Prohibition, Bowers v. Hardwick, the Patriot Act, and now the Federal Marriage Amendment—it already has.
Footnotes
[1] The “American people . . . expect the third horse to pull in unison with the other two.” Franklin D. Roosevelt, Fireside Chat 46, March 9, 1937.
[2] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.
[3] Mark Henry Holzer, Sweet Land of Liberty? The Supreme Court and Individual Rights.
[4] For instance, the Federal Vocational Rehabilitation Act of 1973 prohibits discrimination against otherwise qualified handicapped people. Although the act did not address the specific issue of HIV and AIDS discrimination, subsequent court cases have held that the act protects AIDS as a handicap. See the movie Philadelphia (1993).
[5] Ayn Rand, “Censorship: Local and Express,” Ayn Rand Letter, August 13, 1973.
March 2nd, 2004
Is John Stuart Mill’s understanding and defense of free speech appropriate for a democracy?
The starting point of any political system is how the people limit the power of the state. In On Liberty, the English political theorist, John Stuart Mill, seemingly rejects most limits in favor of individual sovereignty. Yet while he appreciates the preciousness of laissez-faire, his defense of it undervalues democracy. For, ultimately, Mill grounds his properly individualist ideas in a collectivist rationalization.
The word “democracy” has today become an ambiguous, feel-good catchall for liberty. This confusion obscures the deeper truth that there are two rival conceptions of “one man, one vote.” On one hand, individualists limit democracy to a procedural role, mainly to elections by which citizens vote into office their political representatives. In this view, as philosopher David Kelley observes, democracy is a way to decide how, not what, government should do—which is to protect exclusively individual rights, which are inalienable.[1] Collectivists, however, see democracy as promoting the “public interest.” In this view, majoritarian decision-making smoothes out the peaks and valleys of individual rights.
To ascertain which conception is right, imagine you are a congressman.[2] On Monday, lobbyist A accosts you for import tariffs to protect the jobs of workers. On Tuesday, lobbyist B demands no tariffs to give buyers lower prices. On Wednesday, lobbyist C insists on subsidies to compensate the underproduction of farmers. On Thursday, lobbyist D wants you to lower taxes for nonfarmers.
How then do you decide what to do? Which lobbyist represents the “public”? Ultimately, there is no clear and distinct way to tell; any lobbyist, of any industry, on any issue, can reasonably claim the title of the Public. In dismay, you realize that collectivist democracy leads to arbitrary power, in which you must sacrifice the minority to the majority.
On the other hand, an individualist democracy curtails such corruption. For the principle that the rights of the individual are inalienable means, as the writer Onkar Ghate observes, that “no invocation of the ‘public interest’ can justify their abrogation”;[3] the state can interfere only when rights are violated. Thus, an individualist democracy makes good consistently on Mill’s maxim, “Over himself, over his own body and mind, the individual is sovereign” (611).
And yet, though usually placed in the individualist democracy camp, John Stuart Mill is ultimately a collectivist. To be sure, against today’s political theorists, he stands with such staunch individualists as Robert Nozick and Ayn Rand. But Mill mixes his many libertarian tendencies with statist tenets. Specifically, he holds that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (610).[4] What qualifies as “harm” depends on whether the given item furthers the “permanent interests of man as a progressive being” (611).
This slippery slope threshold lends itself to conflicting interpretations. For instance, whose “interests” take precedence if Paul, as a theater proprietor, values his property rights and Peter, his customer, values the security of knowing it is illegal to shout “fire” maliciously in a theater? Whose “interests” take precedence if Jane, as a restauranteur, values her property rights and Janet, her customer, values the safety of knowing that since it is illegal to smoke in New York City bars, she will not inhale second hand smoke in one?[5] Using Mill’s harm principle—namely, the vagueness of the terms therein—one can argue either way; ascertaining who is more harmed or less harmed is a proposition pregnant with paradoxes.
Here, then, is the rub. As a utilitarian, Mill might just as well be a statist; both theories reject the principle of individual rights. But to be free, man requires rights, which explicitly codify and protect what actions man should be free to pursue in a social context. Unlike Mill’s harm principle, rights do not recognize an action or thought’s consequences (“permanent interests”), but distinguish only between coercive action, like theft and arson, and voluntary action, like gambling and prostitution (662). In this way, free speech—free because it is voluntary—is absolute insofar as I exercise it on my property or the property of others with their permission.[6]
Yet many argue that although we may agree maliciously shouting “fire” pertains only to whose property it occurs on, some say that shouting “fire” constitutes action, while others say it is speech. After all, democracy entwines procedure with substance; what we do necessarily embeds the values of how we do it. Additionally, that rights are relatively clear-cut does not guarantee that people will apply them as such. As Mill recognizes, rights are “abstract” statements, which we must fit to the specifics of complex, varying, concrete cases (611). This process is not automatic; human error and reasonable disagreement are possible.
Nonetheless, as philosopher Harry Binswanger explains, “A legal code must have not only the impersonal absolutism of a law of nature, but also the clarity and precision of a properly drafted contract.”[7] The best such code—the one that minimizes paradoxes and maximizes uniformity and specificity—confines law to the protection of individual rights. Under such a system, legislators have no say over whether rights should be violated, but only how to protect them; rights are not subject to vote, but people can, for instance, democratically vote to determine speech/action distinctions. Similarly, judges would decide only whether rights were violated and by whom; “compelling state interests” would be extraneous.
But many ask how rights are any less knotty than the principles of “harm” or “interests”? In constitutional parlance, rights are compossible; that is, they never conflict, since mine start where yours end. Thus, there can be no “right” not to encounter potentially fatal, deliberately false, actionable information (“fire”), since this prohibition necessarily censors, via the force of law, the would-be prankster. Any alleged right that entails coercion, which necessitates violating the rights of another, is not and cannot be a right. If Peter’s right to life entails, say, a right to the fruits of Paul’s labor, as by banning “fire” in Paul’s theater, then Paul thereby ceases to possess a right to property. Instead, the state grants him that privilege—which it can revoke whenever it conflicts with the “public interest.” When one begins making conditions, reservations and exceptions, as Mill does, one admits that something supersedes man’s rights—which may violate them at its discretion.
Therefore, replacing “harm” with “coercion” as the criterion for state intervention makes resolving classic free speech issues relatively easy. The new criterion shifts the debate from nonessentials (interests) to essentials (rights), so that no longer would we need to dispute endless consequences, intended and unintended, but only whose rights are allegedly violated. Thus, the rightness of shouting “fire” in a crowded theater would depend, not on a potential stampede, but only on who owns the theater; if it is mine, only I may abridge free speech therein.[8]
Still, many argue that such a system privileges property rights over “human” rights. After all, someone could conceivably die in a stampede in my theater because I permit my customers to shout “fire” on a whim. Why should my selfish right to my property trump my customer’s right to his life? A dead man is not a free man.
This hypothetical is, of course, stylized and hyperbolic; its occurrence would be extremely rare. For only a suicidal businessman would allow his customers to shout “fire” maliciously in his theater; it is in one’s self-interest to assure one’s customers a safe milieu. Nonetheless, supposing I permit my customers to shout “fire” on a whim, and one consequently dies in a stampede, the deceased’s heirs, or in their absence the state, may rightfully sue me via tort law for, say, misrepresenting the safety of my establishment. Moreover, though the deceased did not consent to die in my theater, he did voluntarily consent to my rules—which as a private company, I have every right to set my way and he had every right to disagree with by not patronizing my business.
Furthermore, either a principle is watertight, or it is an expedient that others may later just as arbitrarily foist on you. Indeed, if a majority considers such noncoercive actions as meriting the coercive power of the state, what then will protect any atheist, homosexual, prostitute, gambler, smoker or suicide from fines, imprisonment or death when any majority regards these sins as criminal? Finally, property rights are in fact basic “human” rights, though not in the sense of economic entitlements. Rather, as Ayn Rand explained: “Man has to work and produce in order to support his life. He has to support his life by his own effort and by the guidance of his own mind. If he cannot dispose of the product of his effort, he cannot dispose of his effort; if he cannot dispose of his effort, he cannot dispose of his life. Without property rights, no other rights can be practiced”;[9] “no rights can exist without the right to translate one’s rights into reality . . . The doctrine that ‘human rights’ are superior to ‘property rights’ simply means that some human beings have the right to make property out of others.”[10]
For Mill, as for me, the “danger which threatens human nature is not the excess, but the deficiency,” of individuality (639). For “only the cultivation of individuality . . . can produce[] well developed human beings” (641), such that man ceases to be man when he “ceases to possess individuality” (646). Therefore, “whatever crushes individuality is despotism” (641).
Yet Mill’s harm principle, by resting on the public interest doctrine, constitutes such despotism. For to practice individualism one needs the freedom to be an individual—come what will to the so-called public, which effectively subordinates individuals to the collective, minorities to the majority. Therefore, had he valued true individualist democracy, John Stuart Mill should have advocated the principle of individual rights. Had he done this, he would have upheld a political system that makes good consistently on his maxim that “all restraint, qua restraint, is an evil” (660).
Footnotes
[1] David Kelley, “The Corruption of Democracy,” Navigator, April 2001.
[2] Edwin A. Locke, “How to Achieve Real Campaign Finance Reform,” Capitalism Magazine, October 11, 1999.
[3] Onkar Ghate, “Campaign Finance Reform Attacks Victims of Government Corruption,” Capitalism Magazine, December 17, 2003.
[4] David Wooton, Modern Political Thought: Readings from Machiavelli to Nietzsche (Indianapolis: Hackett, 1996). All parenthetical page numbers refer to this text.
[5] Similarly: Whose “interests” take precedence if Peter seeks state recognition of his homosexual marriage, and Paul believes that gay marriage degrades traditional mores? Whose “interests” take precedence if I want to smoke a joint to relieve chronic pain, and you want to prohibit marijuana because it leads users toward criminality?
[6] A system of individual rights precludes so-called public property.
[7] Harry Binswanger, “What Is Objective Law?” Intellectual Activist, January 1992. p. 11.
[8] Civil rights, like freedom of speech, of passage and of association, are contractually stipulated; they are derivates of fundamental rights, and, as such, may be abridged. Fundamental rights—the right to life, liberty, property, and the pursuit of happiness—may not be abridged, since they are not contractually stipulated but inalienable.
[9] Ayn Rand, “What Is Capitalism?,” in Ayn Rand, Capitalism: The Unknown Ideal.
[10] Ayn Rand, Atlas Shrugged.
February 26th, 2004
In the aftermath of the Watergate scandal, Congress amended existing campaign finance laws to limit the amount that could be contributed to, or spent by, political campaigns. The Supreme Court considered these regulations in Buckley v. Valeo (1976) and made a momentous hash of the legislation. The verdict therefore both protects and violates free speech rights, though its arguments for the former (expenditures) apply equally to the latter (contributions).
Those who want to limit contributions argue that, in contrast to expenditures, contributions are less connected to my speech; only indirectly does my check, after proceeding through the local campaign office to the national office to an advertising firm, really express my views, or my own voice. Yet, as Chief Justice Burger observes in his dissent, the distinction between contributions and expenditures “simply will not wash.” It is more semantic than substantive. Limits are limits, regardless of their consequences or one’s intentions.
Second, political contributions of any size are still a form of speech, as the Court implicitly acknowledges in allowing up to $1,000 (now $2,000) of it. “Your contribution to a candidate,” notes the radio host Andrew Lewis, “is de facto the publication of your ideas.” Thus, however a candidate uses your money, however it reaches him, however “symbolic” it may be in constitutional parlance, it’s still your money—which means it’s still your speech. If you give money to a candidate, you bolster his candidacy; if you withhold your financial sanction or contribute to another candidate, you implicitly sap the former candidacy. This is how people communicate politically in a representative republic.
Thus, as writer Michael Hurd argues, the “extent to which we ban money from campaigns is the extent to which we ban our . . . ability to express ourselves”;[3] the only proper limits are each individual’s willingness to spend the fruits of his labor. A free society cannot survive as such without the expression of ideas unfettered.
Furthermore, as the Court itself argues regarding expenditure limits, a cap “naively underestimates[s] the ingenuity and resourcefulness” of those who seek vicarious political influence. According to Todd Gaziano, Director of the Center for Legal and Judicial Studies at the Heritage Foundation, caps are “like trying to dam a stream with a pile of sticks. Campaign spending eventually will flow through the dam, over the dam, or find another path.” Indeed, as Bradley Smith shows in Unfree Speech: The Folly of Campaign Finance Reform, caps affect the channels through which money reaches political campaigns, rather than the total amount of money.
Still, the Court argues that because its cap still leaves people “free to engage in independent political expression,” pursuing other avenues such as resource-rich advertising, caps do not have “any dramatic averse effect,” like undermining “the potential for robust and effective” campaigns “to any material degree.” But it doesn’t matter if caps preserve some speech. As Barry Goldwater declared, “[E]xtremism in the defense of liberty is no vice! And . . . moderation in the pursuit of justice is no virtue!” Accordingly—especially as the last bulwark against tyranny—free speech is too sacred to be restrained or subjected to a cost-benefit analysis; it needs no checks or balances, for it is its own.
Finally, the appellants argue that contributions exceeding $1,000 tend toward bribery. Since running for office requires significant donations, politicians increasingly offer pork barrels to those who underwrite their campaigns. Both the “actuality and appearance” of this influence peddling thus “undermine[s]” the “integrity” of and our “confidence” in the government. After all, how can I, a college student with a $25 check reserved for my favorite candidate, compete with Fortune 500 companies that contribute (however indirectly) hundreds of thousands of dollars—to multiple candidates?
Now, concerns that electoral contributions amount to quid pro quos are legitimate. The need to curtail the pressure-group warfare that engulfs Washington is urgent. Yet the criteria the Court use employ the yardstick not of the First Amendment—which should guide all discussion of free speech issues—but of its consequences. Consequences are important, but we cannot eliminate a problem by manipulating its effects.
Rather, we must consider the root cause. The Court believes this cause is unlimited contributions, in which “corruption inhere[s].” But, in fact, corruption inheres in unlimited government, toward which ours increasingly tends. Thus, to take money out of politics, we should take politics out of money. As journalist Frank Pellegrini explains: “The thicket of bendable laws [and] targeted tax breaks . . . are what keeps the campaign checks in the mail and the lobbyists in the corridors of power. When one tweak in one bit of fine print can save a corporation millions, how can we expect them to stop trying to secure that advantage.” Concludes writer Edwin Locke: only when politicians “have no special favors to sell will lobbyists stop trying to buy their votes.”
Posted by Jonathan Rick in 
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