September 27, 2012 9:59AM

The First Amendment and Zombies

I'm pretty much a free speech absolutist. I know that's an epithet, but to me it's kind of like being an arithmetic absolutist: There are right and wrong answers. Emotional attachment to the right answers might be kooky -- but it sure beats being attached to the wrong ones.

In Slate, Eric Posner reminds us that the rest of the world doesn't love the First Amendment. Even Americans weren't always free speech absolutists, Posner notes; for much of our history, the state blithely ignored the First Amendment whenever it became inconvenient. American governments cheerfully arrested anarchists, communists, pacifists, and purveyors of birth control literature. They prosecuted publishers of works by James Joyce and William S. Burroughs.

It might be better, Posner suggests, if we went back to the good old days.

That's what we call an argument from authority. Arguments from authority are like placeholders. They say, "Someone else made this argument for me." As a result, an argument from authority can only ever be as good as the argument that the authority has actually made. It can't be any better. If it's a placeholder for a good argument, that's sometimes allowed. If it's trying to hide a bad argument, that's a problem.

So what's the real argument here? Posner is vague. He just says a whole lot of people have made one.

That's true. But it's also a tricky move on his part, because it's hard for me, or for anyone, to refute all of the anti–free speech arguments that billions of different people have made all over the world during the last several centuries. To say nothing of the arguments that people might make in the future.

In cases like this, the burden of proof is on the person who wants to argue for a restriction in liberty: It's what philosophers, notably Anthony de Jasay, refer to as the presumption of liberty.

Some arguments for restricting liberty might be plausible, even convincing. But if they are, then surely they can and should be made explicitly. Bear in mind that some liberty-restricting arguments are going to be fallacious, and we need to sort these out before we can act with any justification. Until we do, liberty is what we have to go on. Those who wish to restrict will need to meet the burden of proof.

Digging a little deeper, Posner offers what might be called half an argument:

A totem that is sacred to one religion can become an object of devotion in another, even as the two theologies vest it with different meanings. That is what happened with the First Amendment. In the last few decades, conservatives have discovered in its uncompromising text— “Congress shall make no law ... abridging the freedom of speech”—support for their own causes. These include unregulated campaign speech, unregulated commercial speech, and limited government. Most of all, conservatives have invoked the First Amendment to oppose efforts to make everyone, in universities and elsewhere, speak “civilly” about women and minorities. I’m talking of course about the “political correctness” movement beginning in the 1980s, which often merged into attempts to enforce a leftist position on race relations and gender politics.

Let's grant for the sake of discussion that the freedom of speech is just another totemic religion. (It's absurd to say so, for reasons I'll soon explain. But bear with me.) Granting Posner's claim, I might very well ask: Why should my religion -- the bare, unmitigated, absolute freedom of speech -- yield to someone else's religion, which has at best an equal (and not a greater) moral force? That is, even if we admit Posner to be correct, all we have is an irresolvable dilemma. In cases of irresolvable dilemma, the tie goes to my bliss. Why not?

But Posner does have a bit of a point here. Sometimes defending free speech is a little too easy. To get personal here: I'm a gay atheist who loves bacon, martinis, and compound interest. Hooray for capitalism! I also think women's hair is awesome, and they should be able to wear it however they please. I'm not exactly going to be sympathetic to the Muslim religion, and if The Innocence of Muslims had any wit or cleverness about it, I'd be laughing my ass off. (Spoiler alert: It doesn't.)

In other words, this particular film isn't such a great test for me. A better one, both for me and for lots of others, might be the building of a mosque in downtown Manhattan, not far from the site of the World Trade Center. Or the protests of the Westboro Baptist Church. Or Slate publishing an odious article suggesting that we capitulate to violent thugs on the other side of the world.

Any of those might do. In each, I've got some serious disagreements with the message. And I support free expression anyway. If you do too, then congratulations. You're probably a free speech absolutist.

But is free speech absolutism a religion? No. It's not. It's not even an ordinary aspect of public policy. It's a meta-political commitment.

I'm sorry for the fancy term. Sometimes they're actually helpful. Free speech is a thing that we do because we trust that, by doing it, we get better politics (and better religion, and better art, and better science, and...). The airing of different ideas, even of bad ideas, is not something that we hold as a revelation from God, or from the mystical Founders, or from the high authority of the Supreme Court in the era of Earl Warren. We support free speech because we believe it conduces to all sorts of other good things -- including good public policy.

Posner has to deny that, and he does:

Suddenly, the disparagement of other people and their beliefs is not an unfortunate fact but a positive good. It contributes to the “marketplace of ideas,” as though we would seriously admit that Nazis or terrorist fanatics might turn out to be right after all. Salman Rushdie recently claimed that bad ideas, “like vampires … die in the sunlight” rather than persist in a glamorized underground existence. But 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 is some weak argument. The point of free speech is not and has never been that Naziism is a "positive good." That would be a bare self-contradiction, because Naziism entails censorship. Nor do we necessarily admit that Nazis can be talked out of their beliefs (although, on the margins, some certainly were).

We air odious beliefs so that each of us -- who are not Nazis or otherwise fanatics -- may learn to argue properly against them. Are they zombies? Yes! Do you remember how every single fantasy video game used to start with killing, like, a whole bunch of zombies? That's political education in a free society. You kill zombies until you acquire the skills to do more interesting things.

Posner ends with a nod to the protesters in Cairo and Islamabad, whose grievances, he implies, must go beyond a stray YouTube video. What would we say to them?

In some cases, I would protest the very same things. Like them, I too am concerned about American drone strikes. I don't like how they are changing international relations. I don't like what they are doing to American civil liberties. I certainly don't approve of killing innocent bystanders in Pakistan.

I protest these things. Peacefully. Can they peacefully protest as well? Overwhelmingly, the answer is yes. Well then. Come, let us reason together.