Limiting Free Speech Isn’t the Answer

January 15, 2011 • Commentary
This article appeared on CNN​.com on January 15, 2011.

In the aftermath of the January 8 atrocity in Arizona, in which alleged shooter Jared Loughner killed six people and wounded 13, politicians and pundits have blamed inflammatory language or symbols used by certain political groups — read Sarah Palin and the Tea Party — for Loughner’s acts.

Conservative groups have countered by pointing to inflammatory language used by liberal groups, but some liberal commentary is nevertheless calling for government policies to limit or regulate speech.

Rep. Robert Brady, D‐​Pennsylvania, for example, wants to make it a federal crime to use language or symbols that could be perceived as threatening or inciting violence against federal officials or members of Congress.

Rep. Jim Clyburn, D‐​South Carolina, the third ranking congressional Democrat, has suggested re‐​instituting the Fairness Doctrine. This policy, adopted by the Federal Communications Commission in 1949 but rescinded in 1987, requires licensed broadcasters to provide time for presentations of controversial public issues and to allow time for opposing views.

Are restrictions on inflammatory speech or government decrees that broadcasters be fair and balanced appropriate responses to the horrific acts committed in Tucson? Not in the least.

Consider first Brady’s suggestion that federal law limits inflammatory speech. No one knows whether political speech from Tea Partiers or others played any role in Loughner’s actions, but that is not the point. It is possible, perhaps likely, that the occasional lunatic, psychopath or other misguided soul does commit violence in part because of inflammatory rhetoric from politicians or talk‐​show hosts.

The argument for free speech, however, does not assume free speech has no negatives, much less that free speech is always “civil.”

The argument for free speech holds simply that the harms from government restrictions on speech are worse than the harms from free speech itself. If government can determine what constitutes acceptable speech, it will use that power to restrict speech in inappropriate ways.

Opponents of the civil rights movement, for example, could readily have argued that inflammatory speech by some civil rights leaders posed a violent threat, especially since a few civil rights advocates, like the Black Panthers, presented themselves as well‐​armed, and indeed committed (a few) acts of violence. Civil rights opponents could then have used real or alleged connections between violent and nonviolent groups to restrict speech by all civil rights advocates.

Virtually every major cause, including those on the left, receives support from individuals or groups who use inflammatory rhetoric and even commit violent acts. The anti‐​Vietnam war group known as the Weathermen embraced violent overthrow of the government, and it bombed the U.S. Capitol, the Pentagon and the State Department. The Women’s Social and Political Union, a suffragette organization in England, burned homes and bombed public buildings. The Earth Liberation Front, a pro‐​environment group, has torched SUVs, burned down a ranger station and bombed laboratories conducting research on genetically modified foods.

The reality is that every movement, sensible or nutty, has a range of followers, and some go too far. Government must pursue and punish those who commit violent acts, but empowering government to restrict speech, as opposed to violence itself, gives authorities latitude to target almost any cause.

Re‐​instatement of the Fairness Doctrine is just as misguided as restrictions on inflammatory speech. If government requires broadcasters to provide time for important issues, it must choose which issues come under the doctrine’s purview, since this was never explicit in the commission’s rules; this cannot help but exclude issues that government considers fringe but that may be important for social well‐​being (for example, drug legalization).

Likewise, if government decides who gets to provide opposing views, and to what degree, the scope for inappropriate influence is immense. Does the FCC require broadcasters to air one opposing view? Three? Or a hundred? And how much time do these opposing views get? A one‐​minute public service announcement at 3 a.m.? By making these decisions, the FCC inevitably restricts speech.

Only by staying totally uninvolved, and allowing all speech, can government avoid both favoring the status‐​quo, “mainstream” views and squelching minority, fringe or unpopular views.

Thus the harms of free speech are the price we pay for the freedom to criticize our government and attempt to persuade others to share our views. This does not necessarily mean the right to free speech must be absolute in all arenas; when speech is virtually indistinguishable from action — shouting fire in a crowded theater — it is possible the benefits from restriction might exceed the harm. But political speech deserves the highest protection, since this speech is key to all other freedoms.

Free speech does mean, of course, that politicians have the right to call for misguided restrictions on speech. Let’s just hope the rest of us have the good sense to ignore them.

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