Why Eric Posner is wrong about free speech

Robert Shibley Senior Vice President, FIRE
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University of Chicago law professor Eric Posner created an Internet sensation yesterday with an article for Slate in which he argued that the United States overvalues free speech. Posner argued that the reaction to the “Innocence of Muslims” YouTube video that has been indirectly blamed for causing the deaths of four Americans, including our ambassador to Libya, shows that other nations “might have a point” when they decide that free speech must “yield to other values and the need for order.”

Unfortunately but predictably, academics seem to be leading the charge against freedom of speech in the wake of the controversy over the video. University of Pennsylvania religious studies professor Anthea Butler kicked off the effort with a USA Today editorial calling for the film’s producer to be jailed for angering people on the other side of the world. Posner, a law professor, adds more heft to the argument, but ultimately falls far short of making a solid case that American free expression should be made contingent on the religious beliefs of radical Muslims.

Posner begins by arguing that our reverence for unfettered free speech is misplaced, as the First Amendment did not really come into its own until the second half of the 20th century, and that before that, the U.S. periodically cracked down on “anarchists, socialists, Communists, pacifists, and other dissenters.”

A famous example of this type of crackdown came in the United States Supreme Court case of Schenck v. United States (1919). Schenck, a socialist who had spent six months in jail for passing out pamphlets urging Americans to resist the draft, lost his appeal to our highest court. So what did that pamphlet say that warranted jail time? Here’s the full text of the pamphlet. It’s short and filled with rather tame rhetoric like this: “You are a citizen: not a subject! You delegate your power to the officers of the law to be used for your good and welfare, not against you. … They are your servants; not your masters. Their wages come from the expenses of government which you pay. Will you allow them to unjustly rule you?” (For more on the Schenck case, Popehat’s Ken White offered a masterful critique last week.)

There was a time when simply printing such arguments could get you thrown in jail, right here in the U.S. It will still get you sent directly to jail in many of the countries whose opinions on free expression Posner urges that we consider. But is that what Posner actually wants — for the government to regain the power to jail you because you disagree with the draft, or a war, or health care, or taxation, or whatever might be the hot debate of the day? Posner seems to suggest that it is.

Posner also attacks the notion that the “marketplace of ideas” should allow for radical or objectionable ideas. He criticizes Salman Rushdie, author of The Satanic Verses and a famous target of violence for his expression, for saying that bad ideas “like vampires … die in the sunlight.” Au contraire, says Posner: “bad ideas never die: They are zombies, not vampires. Bad ideas like fascism, Communism, and white supremacy have roamed the countryside of many an open society.”

This statement actually undermines Posner’s argument that we should not allow purveyors of “bad ideas” to participate in political debate. If a society remains open despite bad ideas “roaming the countryside,” doesn’t that suggest that tolerance for those ideas is not that harmful? There are undoubtedly thousands of Communists, fascists, and white supremacists in our nation of more than 300 million people. Yet last time I checked, America was not run by Communist Party apparatchiks, falling under the sway of a modern Mussolini, or governed by some “Exalted Cyclops” from the Ku Klux Klan. This is true despite the complete lack of any recent governmental effort to silence these groups.

Experience has instead shown that unfettered access to the marketplace of ideas has led the vast majority of Americans to the conclusion that these groups should be mocked or ignored. Americans managed to do this without government bureaucrats issuing enforceable edicts stating which ideas are good and which are bad. If such officials did exist, what would they think of anti-government movements like the Tea Party, or of Occupy Wall Street? It’s not hard to guess.

Posner ends his article with a confusing complaint that the combination of liberal and conservative beliefs about free speech mean that the U.S. government could only request and not order Google to take the video off of YouTube — what he calls “the bizarre principle that U.S. foreign policy interests cannot justify any restrictions on free speech whatsoever. Instead, only the profit-maximizing interests of an American corporation can.”

What is “bizarre” about that? The First Amendment does not require Google to keep videos on its website. It limits the powers of government, not private enterprise. Giving government the power to censor YouTube when it feels “foreign policy interests” are at stake, however, would certainly lead to widespread censorship. For instance, it is in the U.S. government’s interest to have good relations with China. Does that mean it would have reason to demand the removal of video of the 1989 Tiananmen Square protests and massacre? You bet it would. In fact, the Chinese government would likely demand such steps be taken if the U.S. government had that power.

There is much more in Posner’s article that is objectionable to advocates of free speech — more than can be covered in just one column. The underlying problem is Posner’s assumption that it is reasonable for Americans’ speech to be limited according to the preferences of people in other nations. Worse still, the people to whose opinion Posner would have Americans defer are those who react most violently to expression they don’t like. If we give those who are willing to be violent the censorship they demand, we only encourage more violence over other issues and create incentives for other groups to become equally violent in order to have their own demands met. If you want more of a certain behavior, rewarding it is the best encouragement. In crafting his apologia for international censorship, it seems Professor Posner has forgotten this basic principle.

Robert Shibley is the senior vice president of the Foundation for Individual Rights in Education (FIRE).