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.