Is there a cogent argument against free speech?

I’m not 100%, set-in-stone wedded to the American courts’ interpretation of free speech and the First Amendment. I think it’s the best interpretation going, but I’m always looking for viable arguments that it should be modified. Here’s what purports to be one, but in the end proves limp and toothless.

The argument is given in a Vox interview in which University of Chicago law professor Brian Leiter, who also has a personal website called Leiter Reports, argues that the First-Amendment style of free speech is not the best we can do for expression, and suggests that some modifications are in order. He’s interviewed by Sean Illing, who is a free-speech absolutist like me; and Illing pushes back hard.

The interview is frustrating because, though Illing asks good questions, Leiter is very slippery about what modifications he would make to our speech laws to improve things. But the discussion stems from an argument Leiter made in a paper in the Sydney Law Review, a paper I haven’t read (it’s free online here).

So I’ll just go by what Leiter and Illing say in their discussion. First, Illing’s introductory characterization of Leiter’s argument:

Leiter argues that we shouldn’t think of free speech as an inherently good thing and that there are negative consequences for pretending that it is.

The sort of speech he’s talking about is public, the kind of stuff we hear on television or read in newspapers. He’s not suggesting we should even think about regulating private or interpersonal speech. And in fact, he doesn’t think we can even regulate public speech, mostly because we just don’t have a reliable way to do it.

But he does raise some interesting objections against what’s often called the “autonomy” defense of free speech, which holds that people are only free to the extent that they’re allowed to say what they want, read what they want, and determine for themselves what is true and what is false.

According to Leiter, this is a bogus argument because people are not actually free in the way we suppose. We’re all conditioned by our environment, and what we want and think are really just products of social, economic, and psychological forces beyond our control. If he’s right, then the “autonomy” defenses of free speech are just wrong, and probably dangerous.

I don’t quite get this, and perhaps Leiter’s paper can add some clarification. The “autonomy” defense of free speech seems to me a non-defense. Of course we’re all products of our environment and the like, but that’s neither my defense of free speech nor my argument about why speech shouldn’t be censored. That argument is simply that no matter who is conditioned by their genes and environment to say what, it’s best for society to allow free speech so long as it doesn’t cause palpable physical injuries or psychological damage due to harassment (or to slander or libel) that would harm society were they allowed. This says nothing about autonomy.

But let’s proceed. In what ways does Leiter say speech would be better off if it had more restrictions than America has now?  It seems to me to boil down to one thing: the American populace isn’t sufficiently mature to create and reap the benefits of free speech, and so needs guidance to winnow out irrelevant arguments. For example, Leiter says this:

My paper is about running through all the arguments people make in defense of this assumption and showing why they don’t hold up. I’ll start with the simplest one, which is this idea that a free marketplace of ideas is likely to help promote discovery of the truth. This is probably the most famous defense of free speech associated with the British philosopher John Stuart Mill.

But what people often don’t stop and notice is that even Mill thought certain background conditions had to be established for it to really be true that a marketplace of ideas would lead to the discovery of the truth. Mill said, “People have to be educated, and they have to be mature.” Those are pretty thin conditions, and you might worry that a lot more is required for a real marketplace of ideas to be conducive to the truth.

As I point out, we have an important institution in American society that aims to discover the truth, namely the court system. And the striking thing about the court system is that it completely rejects the marketplace of ideas view. It says, “It’s crazy to think we’ll discover the truth by just permitting people to express any view they want, make any claim they want.” In the court system, we impose massive restrictions on speech to facilitate the discovery of truth.

Well, the courts have legal restrictions that are supposed to facilitate the discovery of the truth, like keeping out irrelevant testimony and the like. Leiter also mentions that he doesn’t allow free speech in his classes: he determines the syllabus and what is discussed.  But to do these things in society at large, we would have to have someone determine which arguments are relevant and which are not. In other words, we’d have to have a censor.

And that is where Leiter punts. After Illing squeezes him hard about the inevitable question, “Who is to be the censor?”, Leiter has no answer:

. . . at the end, I actually argue for a pretty strong libertarian approach to free speech, but not on the grounds that the speech necessarily has value. A lot of it has no value, as you correctly said in your summary.

But basically I don’t think we can be confident that the regulation of speech, or the regulators of speech, would make the right choices in discerning what is good and bad speech, or what is helpful or unhelpful speech. But this says more about the pathologies of the American system than it does about the value of freedom of speech.

. . . Sean Illing

Given everything you’ve said, given the paucity of realistic solutions, what’s the point of an article like this? Why make the case against free speech if there aren’t any viable means of improving speech?

Brian Leiter

The fact that there aren’t solutions now isn’t a reason not to identify a problem. And of course, one point of the article is to challenge what I think is a slightly unthinking popular consensus. Free speech isn’t an inherently good thing; it can be good or it can be bad, and normally we think of the law as something that can step in when things can be both good or bad, like operating a motor vehicle, for example, which is why we have rules about it.

But in the case of speech, we have good reason to be worried about whether we’ll make the right rules. And therefore, the real question that we need to talk about isn’t about assuming the intrinsic value of speech. It’s about why we have a political and economic order that makes it impossible for us to regulate all the bad things about speech in a reliable way.

You see why I find this discussion frustrating?

 

 

108 Comments

  1. GBJames
    Posted March 11, 2019 at 12:35 pm | Permalink

    sub

    (and “Yes”)

  2. ThyroidPlanet
    Posted March 11, 2019 at 12:43 pm | Permalink

    There seems to be something like circular reasoning going on – are the proposed (but unspecified) rules and regulations themselves the products of free speech? and if so, are they not themselves subject to more rules and regulations? etc.

    as for free speech itself, my understanding was that free speech was assumed to follow some rule whereby the best arguments outweigh the weak. But I hadn’t considered the step where individuals must “…determine for themselves what is true and what is false.”…

    That’s a black box, like the jury who delivers an astonishing verdict – how could they decide that, if the strongest points of the case suggested otherwise?

    hmmmm….

  3. Jon Gallant
    Posted March 11, 2019 at 12:53 pm | Permalink

    Mr. Leiter’s circumlocutions remind me of an old political joke. A Trotskyist is given a detailed explanation of how a gearshift on a car actually works. “That may all be very well in practice,” he responds, “but I’m not persuaded it can be justified in theory.”

    • merilee
      Posted March 11, 2019 at 1:03 pm | Permalink

      I must remember that joke!

      • David Hammer
        Posted March 11, 2019 at 3:47 pm | Permalink

        Or as the great Sidney Morgenbesser said about pragmatism, “It may work in theory, but in practice its a mess”.

  4. Posted March 11, 2019 at 1:04 pm | Permalink

    Of course there is speech out there that is detrimental to society, and also a lot of speech is pure noise, often drowning out meaningful discourse. If we had an all-wise and all-benign philosopher king to regulate speech, we might be better off. But we don’t have that utopian option for censor. We have human beings, with all their flaws and fallibilities. Free speech is the best option for an imperfect world.

    • Posted March 11, 2019 at 2:11 pm | Permalink

      I am not a free speech absolutists, and when you agree to some carefully outlined limitations, slander, libel, defamation, incitement to violence and so on, neither are you. True absolutists are conceivable (and probably exist), who might argue that absolutely anything can be said, and who might view words as wholly different from actions, and place strongest responsibility and burdens on listeners to accept and act on such information. Under that principle, you can outright lie, mislead or smear — it’s on the listener to accept such information, and it’s their fault whatever consequences befall them. After all, they could view speaker as unreliable liars, pretend to not have heard the words, be skeptical, and without any guidance or protection from any authority.

      However, that’s not how it is in any western country I can think of, including the United States. On the contrary, we already place some burden on the speaker, and already have a limited “patronising” attitude towards listeners, in assuming that you cannot fact check everything, that you could be manipulated and so forth.

      First, I favour stronger protections of privacy, stronger than they are in the USA. I don’t regard it as fair that, say, a tabloid can make almost any claim, and then it must be established whether it’s true. How about that some things aren’t anyone’s business? The tabloid rather should be forced to establish, to a court, why their reporting serves a public interest. And it’s not public interest whether a celebrity has a new romantic partner, or what their favourite socks are. This goes for anyone else, where of course, “public interest” creates an even higher barrier. The public at large cares even less about an individual’s private affairs. Without such protections, it becomes a platform and influence war, with privileged creating “facts” by pure reach and influence.

      Second, individuals should have a right to not live in fear. How about the belief that blood from red-heads increases one’s luck. Such individuals are not “targeted” directly, and I guess the 1st amendment protects that opinion. But what do we do when a vast majority comes to believe it? Should we outlaw such superstitions, educate more and hope for the best? This isn’t such an outlandish scenario, when you consider de-nazification, and e.g. holocaust denialism.

      That is, “free” speech appears to rely on a somewhat reliable history of what people generally express, and in which frequency. That is, we can tolerate certain opinions with the tacit understanding that they aren’t widespread. I believe the entirety of “freedoms” hinge on a large degree on tradition and stability.

      Third, what about free will, and free speech. If there is no free will, how can there be free speech, or free markets? If they are free in “some sense” why is that different for “free will”? It might be all on rails, but at least from our perspective without the option to rewind time, we are better served to negotiate in society about speech, and why hard and fast “absoltism” is a bad idea. People are clever, they can use tolerance to destroy tolerance and that requires a constant process of evaluation. Rather, we ought to protect the “spirit” of free speech, and this is currently under threat from privately owned corporations that own the seemingly public sphere on the internet.

      • Posted March 11, 2019 at 2:12 pm | Permalink

        That was supposed a free standing comment. 😅

        • Posted March 11, 2019 at 2:48 pm | Permalink

          I’m glad, because it means I don’t have to respond. 😀

          But I would like to say that I interpret free speech as nothing more than the absence of goverment censorship of speech—unless that speech poses imminent harm, which would be consistent with your right not to live in fear.

      • Rich Sanderson
        Posted March 11, 2019 at 4:36 pm | Permalink

        I hear very few supporters of free speech refer to themselves as “free speech absolutists”. That seems to be a snarl term from authoritarian far left regressives, such as dimwit Peter “Humanisticus” Ferguson, and the rest of the “freeze peach” morons.

        Only a handful of extreme libertarians define “free speech” as including the right to libel and slander people without consequences, or incite violence.

        • Posted March 11, 2019 at 4:41 pm | Permalink

          I’d never hear of “freeze peach” before. I love it. The Urban Dictionary definition is spot-on so I upvoted it:

          https://www.urbandictionary.com/define.php?term=Freeze%20Peach

        • Posted March 11, 2019 at 5:00 pm | Permalink

          That can’t be true, as Jerry writes above: “He’s interviewed by Sean Illing, who is a free-speech absolutist like me; and Illing pushes back hard.”

          • BJ
            Posted March 12, 2019 at 8:17 am | Permalink

            It can most certainly be true, because Mr. Sanderson did not say “all,” he said “very few.” I too have heard very few people call themselves this and have heard it far more from the crowd to which Richard refers.

            • Posted March 12, 2019 at 8:54 am | Permalink

              Jerry described himself and the interviewer as a free speech absolutist, did he not? I pointed out that his views don’t seem absolutist, and went on to explain why. To imply that this was a “snarl word” I introduced is simply untrue.

              I also believe that most people, like Jerry, are not truly absolutists, and not even close, which I expressed also above, namely that absolutists would be “conceiveable” but since I know nobody, I don’t know what exactly their argument would be like, only that I can think up of one plausible variant.

              Despite that most people aren’t absolutists, I don’t agree that this was snarl term from the woke crowd. The discussion is virtually always about “free speech” and virtually never about “warranted restraint” as Gary Edwards put it.

              I also don’t like that a person on social media is mentioned here, as if he was some kind of opinion leader.

  5. Posted March 11, 2019 at 1:05 pm | Permalink

    The big catch in trying to restrict free speech, which the founders defined as the free exchange of ideas, who answering the question of who should decide what to slow, choosing the censor. There is no acceptable answer to that question.

    • Posted March 11, 2019 at 1:06 pm | Permalink

      Is answering the question of who . . .

      • Posted March 11, 2019 at 1:07 pm | Permalink

        what to allow . . .

  6. Mike Anderson
    Posted March 11, 2019 at 1:14 pm | Permalink

    I’m an anti-speecher and I argue almost everyone is. Almost every society has broad categories of disallowed speech, and that’s always been the case.

    For instance, in USA we disallow many forms of lying (perjury), disallow planning of crimes (conspiracy), disallow child porn, disallow the publication of some classified info, etc. This is just a small sample of communication disallowed in the USA. Other countries and societies have different lists, but the lists end up being surprisingly long when enumerated.

    I don’t know of anyone that really wants to not ban some form of communication (I’m sure there are some, but I think it would be an extremely small percentage that wouldn’t want some restrictions on communication).

  7. Posted March 11, 2019 at 1:18 pm | Permalink

    I admire Brian Leiter a lot, but I just don’t believe he’s thinking clearly on this until he gets to the line, which hits the nail on the head:
    “But basically I don’t think we can be confident that the regulation of speech, or the regulators of speech, would make the right choices in discerning what is good and bad speech, or what is helpful or unhelpful speech.”

    I’ve written a fair number of law review articles on free speech and, in the process, studied the Supreme Court’s cases closely, and I think most of the oft-repeated arguments for free speech just do not hold up. But the argument that “you can’t trust the regulators” is more than enough to carry the day. After all, the precise reason the First Amendments and Bill of Rights generally were put into the Constitution was to limit the discretion of governmental actors because the Framers did not completely trust them to always do the right thing. They knew that a government run by humans can never be completely neutral because it develops and strives to protect institutional interests of its own, interests that may not always coincide with the public interest.

    • BJ
      Posted March 12, 2019 at 8:31 am | Permalink

      I agree. My belief in US free speech laws lies not with any philosophy about “autonomy,” “free will,” or anything else. My stance against restricting speech further than it is restricted in the US lies almost completely on the foundation of my lack of trust in any one person or group of people to properly regulate speech, and my lack of confidence that such power will not be used maliciously.

      We have seen the consequences of hate speech laws and the like, where people in the UK get arrested for teaching their dog to do a Nazi salute as a joke, or people in the Netherlands have police show up at their door for opposing the flood of migrants into their country on Twitter, or people in Canada who end up losing $50,000 because some tribunal felt their joke was too offensive to a disabled teenager etc. Eventually, “hate speech” easily becomes a category that restricts the expression of certain legitimate policy positions, and we’ve seen over and over the idea that “hate speech” encompasses such things as opposing too much immigration (especially if it’s for reasons like a lack of assimilation and/or feeling that the culture of another group does not match one’s own). I find it fascinating how so many people both support hate speech laws and oppose blasphemy laws at the same time. There really is no difference beyond what the supporter finds acceptable, and that’s what’s most frightening: the human inconsistency in recognizing that one’s opinions should not be imposed on others, and that one’s opinions on what should and should not be said are neither necessarily right, nor relevant, nor in line with the opinions of others. “Hate speech” is usually deemed offensive to certain groups that are considered vulnerable, but blasphemy laws are often used for the same reason.

  8. Randall Schenck
    Posted March 11, 2019 at 1:25 pm | Permalink

    I believe the reason for all the confusion here is because they are getting the idea of free speech mixed up with what the first amendment is intended to be and protect. They are having a general discussion of free public speech between people or firms. And then wondering if there should be some kind of umpire in these talks. That is just a different subject. Free speech as presented in the Bill of Rights is a protection promised by government to the people. It is saying we, the government, will not prevent you, the person, from saying whatever you want. Of course this is with a few restrictions added since by the courts.

    So arguing the first amendment idea of free speech as if it applies to speech between people and or firms is just not the same thing. If one person tells another person to shut up what action will be taken by government? None because they have nothing to do with it. If your boss objects to what you said in an email and tells you to stop, you probably will stop. However, if the city steps in and does not let you distribute your paper or flyers you can likely take them to court for restricting your free speech.

    Now, at one point they made comment about the internet era. That may be a whole new deal and I would advise reading Zucked.

  9. rom
    Posted March 11, 2019 at 1:30 pm | Permalink

    I must admit I struggle with this free speech thingy.

    It’s apparently OK to insult an idea but not a person (da rulz in various locations). So I can’t say Mr Peabody is an idiot but Mr Peabody’s ideas are idiotic is OK. But in reality these ideas are a physical part of Mr Peabody’s brain. So calling MrPeabody’s face as ugly is frowned upon but we can say that of his brain configuration?

    My apologies to all the Mr Peabodies out there.

    • Posted March 11, 2019 at 1:33 pm | Permalink

      These are clearly different, and you know that. Do not argue with the Roolz.

  10. JohnE
    Posted March 11, 2019 at 1:33 pm | Permalink

    The current legal test for unprotected speech is whether there the speech is “inciting or producing imminent lawless action” [Brandenburg v. Ohio (S.Ct. 1969).] I’m wondering if it would really undermine our notion of free speech if we moved the line just a smidge to prohibit people from advocating physical harm to other human beings. Would the notion of free speech really suffer if the rule was that you simply can’t advocate exterminating Jews or raping women — even if you’re merely advocating we do it tomorrow or “someday” instead of right now? Does allowing people to openly advocate such things really serve any beneficial social purpose?

    “Advocating violence” would seem to be a sufficiently bright line — at least as bright as the existing line of “inciting or producing imminent lawless action.” Keep in mind that the Supreme Court created the “inciting or producing imminent lawless action” standard based upon its own interpretation of what the First Amendment was and was not intended to protect. It was not expressly stated in the First Amendment nor was it logically mandated or divinely ordained. They could just as easily have created a different standard, by saying that neither inciting imminent lawless action NOR advocating threats of physical violence are protected by the First Amendment.

    Of course, the fact that others may contend that the line should be drawn somewhere else simply ignores the reality that all lines have exactly the same problem. That can’t be helped. That argument also ignores the fact that we already have a line, as well as the fact that lines are inherent every law we have. Drawing those lines and acknowledging exceptions to which the rule doesn’t apply is what courts do all day every day.

    • Posted March 11, 2019 at 2:20 pm | Permalink

      “Does allowing people to openly advocate such things really serve any beneficial social purpose?”

      Well, for one thing, it helps you find out who you need too keep an eye on, maybe not sell a gun to, and stuff like that.

      And I wondering how many states would try to use such an exception to ban pro-Choice speech.

      • JohnE
        Posted March 11, 2019 at 4:12 pm | Permalink

        Interesting thoughts. However, eliminating the current standard and permitting people to make calls for “imminent lawless action” would also help us flush out the bad guys — and perhaps the bad guys who are the most imminent risk.

        With regard to your second point, I don’t believe pro-choice advocates are actually “advocating violence” — i.e., they are not advocating that women actually HAVE abortions. Rather they are simply in favor of a woman’s right to choose. While we certainly can’t put anything past the pro-life crowd, who never tire of coming up with preposterous arguments and restrictions that have been continually shot down by the courts (at least at this point), the argument that being pro-choice means advocating violence would seem to be equally preposterous.

        Looking at some of the other comments, it bears noting that the issue isn’t whether it is appropriate to have ANY restrictions on free speech, we are merely debating what those restrictions should be. There already ARE restrictions on speech, including not only the Supreme Court’s ruling that calls for imminent violence are not protected, as well as the laws of most states against “assault.” Contrary to popular belief, the crime of assault does not mean physically attacking someone (which is the crime of “battery”). The crime of assault (or in some jurisdictions, “intimidation”) is the mere threat of physical harm directed at a specific individual with the ability to carry out the threat.

    • Posted March 11, 2019 at 5:03 pm | Permalink

      I’m wondering if it would really undermine our notion of free speech if we moved the line just a smidge to prohibit people from advocating physical harm to other human beings.

      Would that include administering hormone blockers to minors? It just so happens the push is on to make it illegal to advocate against it! So here we run afoul of who gets to define what constitutes “physical harm”.

      _

      Would the notion of free speech really suffer if the rule was that you simply can’t advocate exterminating Jews or raping women…?

      A better question is, would your proposed restrictions on speech actually make a significant difference in reducing genocide, rape, etc.? I mean, have we witnessed an explosion of such things since Brandenburg v. Ohio?

  11. Posted March 11, 2019 at 1:33 pm | Permalink

    Using the verbiage from two commenters above, this my quick theorem to free speech:

    What is noise to one person, can be offense to another.

    Corollary: No one person can arbitrate as censor.

    People may not like it, but free speech is the best game in town. The alternative reminds me of the free pass religion has been provided for millennia alienating it from critical thought and keeping us, as a specifies, in darkness for far too long.

  12. Richard Sanderson🤴
    Posted March 11, 2019 at 1:34 pm | Permalink

    “Is there a cogent argument against free speech?”

    No. There isn’t. Next!

    Although for a good giggle, you might want to look around for the PZ Myers’ “freeze peach” ‘argument’, which was promoted by various FreeFromTalent bloggers about 5 years ago, when people poked huge holes in their narratives.

  13. DrBrydon
    Posted March 11, 2019 at 1:46 pm | Permalink

    I think there is absolutely an argument for restricting speech, if you don’t want a free society.

    • Randall Schenck
      Posted March 11, 2019 at 2:00 pm | Permalink

      And most of us agree that our current president fills this roll and example nearly everyday. His hateful language about specific news organizations and newspapers and his own love for a specific network organization Fox, puts him solidly in the same camp as most dictators around the world who totally control their media.

      • Max Blancke
        Posted March 11, 2019 at 4:14 pm | Permalink

        The news people don’t really believe that, and I don’t think many rational individuals do, either.
        I have always been a big fan of Stephen Colbert, but thought it vulgar when when he referred to Trump as “Putin’s c**k holster”. But he was able to say that on network broadcast TV, and almost certainly had no fear of personal or professional repercussions for doing so. You could go to the White House tomorrow, and shout the same thing from the National Mall. And nothing would happen to you. On the other hand, if you wore clothing or made statements expressing support for the sitting President, you might be physically attacked, fired, or suspended from school.

        It is a real danger to the USA when mainstream news organizations exhibit strong partisan bias while claiming to present news stories in an unbiased, objective manner.

        Do you think Edward R. Morrow would have agreed to pass debate questions to the network-favored candidate prior to a televised debate?

        This whole “Conservative speech is violence, but Progressive violence is just speech” thing is getting tedious. And I can tell you what it is like to live in a country ruled by a dictator. It is not like this.
        This is what it is like when a vulgar NY real estate guy gets elected president. His live speeches and off-hand remarks can be pretty painful to hear, and uncomfortable to read. But you are not expecting him to announce that some portion of the citizenry will be purged. You are not going to wonder tonight whether your remarks in this forum will be noticed, and there will be a late-night knock on your door.

        Free speech means that you can express such opinions with no fear of retribution. An argument for limits on such speech means that there will be an arbiter, and penalties for violations.

        I always assume that this person will be the one in charge of policing our speech-
        https://imgflip.com/memetemplate/107671838/Angry-sjw
        Or, it could be someone on the opposite of the spectrum. Either way is bad news.

        • Mike Anderson
          Posted March 11, 2019 at 4:26 pm | Permalink

          It is a real danger to the USA when mainstream news organizations exhibit strong partisan bias while claiming to present news stories in an unbiased, objective manner.

          Mainstream media has always been strongly partisan since the invention of media. American media is biased towards America, British media is biased toward Britain, etc. This home team bias is what makes it mainstream.

          • Posted March 11, 2019 at 4:32 pm | Permalink

            Yes. They are also biased towards truth which can make it seem that they are anti-Trump when they really aren’t. I’m not saying that the MSM doesn’t have a left-wing bias but it is nowhere near as big as some make out. When someone on CNN calls out Trump on a blatant lie, it can easily be considered anti-Trump. in fact, it is anti-Trump but it is also anti-lying and part of their job.

            • Mike Anderson
              Posted March 11, 2019 at 4:35 pm | Permalink

              Exactly. It is an American tradition to point out a leader’s lies. That’s not a left wing bias, it’s an American bias.

              • Mark R.
                Posted March 11, 2019 at 8:05 pm | Permalink

                It should not be a bias though, right? When did pointing out the truth become a bias? I’m confused by this comment.

            • max blancke
              Posted March 13, 2019 at 4:53 pm | Permalink

              The problem is not about when objective facts are reported that make Trump look bad. The problem is when stories are presented that present a biased view, and rely on exaggeration, omission of facts, or deceptive video editing to present that viewpoint.

              An easy example is Trump’s visit to Japan. When he and Abe were feeding the koi, CNN edited the video they presented to look like Trump impatiently just dumped the whole box of food into the pond, while Abe was using a little wooden spoon to portion a bit at a time. They actually went to some trouble to edit the video to show that, when the unedited video shows the event differently.
              That is a very minor thing, but the effect is cumulative. And it goes on all day every day. Another big issue is when headlines or stories are carefully worded to give a particular impression, which is not really supported by the data. I have spoken to people who are against Trump particularly because of his “open and aggressive antisemitism”. When we started to talk about it, they could not actually point to or find any antisemitic remarks or actions, but had developed the impression largely from the cumulative effect of reading headlines and commentary that implied Trump hates Jews.

              A quote from a CNN supervising producer, who did not know his words were being reported-
              “I think the President is probably right to say- Look, you are witch hunting me”

              The end result is that you have a bunch of people who have based their opinions about political figures and serious issues on news stories they have read or watched that contain falsehoods. This is a big deal. If people are voting about issues where their views are based on falsehoods, it can be disastrous.

              This is a science blog. Many or most of the regulars here are familiar with proper research methodology. You cannot present valid conclusions if you have excluded unfavorable data, or fudged the existing data. CNN and other sources regularly do this with their stories.

              • Mike Anderson
                Posted March 13, 2019 at 5:27 pm | Permalink

                If people are voting about issues where their views are based on falsehoods, it can be disastrous.

                Yes, we’ve been watching the disaster unfold for the past 2 years.

              • Posted March 13, 2019 at 6:51 pm | Permalink

                I am sure some bias creeps in but my opinion of Trump is based on his many speeches, live appearances, and actions while in office. It is not like suspecting your neighbor who you’ve only talked to once might be a racist. It is not a matter of nuance one way or another. Trump is a disaster as a person and as a President. I am willing to grant that he can feed Koi properly and that CNN presented him poorly. Arguments like the one you are making are virtually damning him with faint praise. He is so bad, I feel that any bias that creeps into main stream media can be forgiven since they are only human. Anyone familiar with the news is disgusted with him and all he represents. I have no problem with people reporting bias on either side. We have to keep them honest. But if you are trying to say we’ve just got Trump all wrong, it’s just not going to fly.

        • rustybrown
          Posted March 11, 2019 at 4:40 pm | Permalink

          Nice post Max, you’ve hit the nail on the head. It’s endlessly amazing to me how so many on the left these days calmly accept or support violence and ostracization of people for their political views, and think themselves the good guys.

        • Nicolaas Stempels
          Posted March 11, 2019 at 5:18 pm | Permalink

          ..if you wore clothing or made statements supporting the sitting president you might be attacked…
          As far as I know there has only been one victim killed, in Charlottesville, and she didn’t do any of that.

          • rustybrown
            Posted March 11, 2019 at 6:23 pm | Permalink

            Somebody killed by a deranged person in the middle of a riot, an outlier in itself, is qualitatively different from someone getting assaulted for minding their own business but wearing a particular piece of clothing. We’re talking about the later.

          • Max Blancke
            Posted March 11, 2019 at 7:31 pm | Permalink

            I wrote “attacked”, not killed. Lots of people have been attacked for wearing Trump or MAGA clothing, or even stuff that looks like it is.
            Many of those attacked have been kids, physically attacked by adults. Or doxxed and accused of things they did not do, followed by death threats.

            An awakening moment for me was a Trump speech near our home in NC. I did not attend the speech, as I am not a fan, but I did see protesters outside the venue at the conclusion of the speech lined up to spit on and curse those who attended. This was not a Klan meeting, I did not see anyone visibly “alt-right”, and I know for a fact that some or most of the attendees were retired people here on vacation, and went just to see someone famous.
            I don’t know why, but something about that incident offended me to the core.
            If the protesters had been standing outside of a synagogue in Germany in 1938, they would have fit right in. I know the politics are different, but the optics were the same.

            As far as this relates to the topic under discussion, people should be able to attend a speech by the nominated candidate of any political party without fear of physical attack or intimidation.

            • Posted March 11, 2019 at 7:40 pm | Permalink

              While I am not condoning violence either inside or outside a Trump meeting, I just have to cry foul at your 1938 German synagogue analogy. Inside Trump’s MAGA meetings they are threatening journalists, calling for politicians they don’t like to be locked up, and generally inciting violence. I’m not Jewish and, to my recollection, have never been inside a synagogue but I am certain they don’t do any of that kind of thing inside. Ok, maybe they did speak ill of Hitler and the Nazis.

              • rustybrown
                Posted March 11, 2019 at 8:20 pm | Permalink

                “Threatening journalists”, what a laugh. All of the things you mentioned have been wildly overblown by the media and uncritically accepted by people like you.

                In case you haven’t noticed, Trump has a very crass, bombastic, hyperbolic, and sarcastic style. If you don’t like that, fine. But f you take everything he might say at one of his red meat campaign rallies as seriously as an official policy statement, you’re gonna have problems. How can you not understand that at this point?

                Max, I had a similar awakening. It was watching the coverage of the Chicago rally that had to be canceled because of violent thugs harassing the peaceful attendees. Just as you said, there were a lot of elderly in the crowd who had come to see Trump, many traveled quite a distance from rural communities. The images were harrowing; anybody could see that shit wasn’t right.

              • Posted March 12, 2019 at 1:10 am | Permalink

                We’ve seen it live on TV many times so not overblown. I’ve had just about enough of Trump’s “style”. When do you stop calling it style and accept it for what it is?

                You suggest what Trump says at his rallies or on his tweets is not policy. Instead, this is the real Trump. Not the Trump where all or part is written by a speechwriter. It’s disgusting and it is not a matter of “style”. He’s an absolute pig.

              • merilee
                Posted March 12, 2019 at 8:36 am | Permalink

                Please don’t insult pigs🙀 They are quite nice and intelligent critters.

              • Posted March 12, 2019 at 11:08 am | Permalink

                Yes they are. I apologize to all pigs in the world.

              • rustybrown
                Posted March 12, 2019 at 10:41 am | Permalink

                “When do you stop calling it style and accept it for what it is?”

                When, by your examples of outrages, journalists are actually jailed, rival politicians are actually locked up, and real violence has been incited (and no, a punch thrown at somebody who’s disrupting a private rally doesn’t count. That type of person is likely to get into a physical confrontation at any boisterous private rally).

                If by “what it is” you mean something we should be worried about.

              • Mike Anderson
                Posted March 12, 2019 at 10:59 am | Permalink

                a punch thrown at somebody who’s disrupting a private rally doesn’t count

                Punches don’t count, defective (but still dangerous) mail bombs don’t count, death by automobile doesn’t count – you might discount this stuff, but most people don’t.

              • Posted March 12, 2019 at 11:35 am | Permalink

                So your defense of Trump’s behavior is only that he encourages others to do these things and takes no action himself? Do you support the actions he calls for? I don’t recall Trump ever telling his crowd that what he says is not how he really feels. When he says “Lock her up”, I suspect he really means it. She was investigated all kinds of ways but nothing has stuck. Is it all just some great conspiracy? All the courts and investigators are part of some Deep State? If so, then you are just crazy. If not, then you are supporting a President that tells dangerous lies.

              • rustybrown
                Posted March 12, 2019 at 11:15 am | Permalink

                Dude, I provided a rational reason why the punch I was referring to wouldn’t count. You might try engaging in the rational argument rather than strawmannirg if you want to be taken seriously.

              • rustybrown
                Posted March 12, 2019 at 12:52 pm | Permalink

                Paul, to take your example, when Trump said “Lock her up” at his rallies it was a hyperbolic way of saying:

                “My opponent is corrupt. Regarding her email scandal, she’s been given a free pass by the Obama administration for crimes others have gone to jail for. There are questions that need to be answered, and when I’m elected president I will bring the full force of the law to investigate the crimes I believe she’s committed and been unaccountable for.”

                Trump did indeed say ALL of those things by means of clarification in much more sober settings such as debates, direct questions from reporters, etc. But the media chose to focus on the hyperbolic rally cries instead and have thus fostered the Trump Derangement we see today. Do you even remember him saying those more sober (and in my opinion, true) things? Probably not, even though he likely made those reasonable arguments more often than he said “lock her up”. But you only remember the red meat.

                Look at it another logical way: the mere fact that Trump has not aggressively pursued locking Hillary up is de facto PROOF that it was hyperbole and not literal. Reality belies your argument that he was being literal.

                Finally, your suggestion that Hillary is clean is risible. Quantitatively and especially qualitatively she makes Trump look like Mr. Rogers.

            • Mike Anderson
              Posted March 11, 2019 at 9:52 pm | Permalink

              This was not a Klan meeting

              But it’s a celebration of hatred. If people want to go see a grown man call people names, encourage violence, and call for jailing political enemies, there’s something wrong with them.

              • rustybrown
                Posted March 12, 2019 at 10:42 am | Permalink

                That’s rich. See above.

              • Max Blancke
                Posted March 12, 2019 at 12:25 pm | Permalink

                It is fine that you disagree with republican or conservative views. I feel largely the same way.
                But “celebration of hatred”? If you actually believe that, then you are basing your view on an exaggerated and stereotyped understanding of their beliefs.
                That is a terrible way to have any sort of civil discussion. If you disagree with someone because you ascribe beliefs to them that they do not hold, you are going to get some pushback.
                But once again, if you get your news about Trump primarily from MSNBC or CNN, the idea that all conservatives are racist monsters is an easy conclusion to come to.
                If one were to see coverage of the Covington/Phillips confrontation from sources such as those, it might seem reasonable to call for the kid to be doxxed, expelled, and have his parents fired from their jobs. People a little more left of those on this forum felt that he should be burned alive for his actions.

                I agree that Trump’s style and mannerisms tend to be vulgar and confrontational. I do not see that reflected in the vast majority of conservative voters or activists.
                Trying to merge those tens of millions of people with the 200 or so degenerates that keep showing up at alt-right events is disingenuous.

                Here is a tip that I learned in the military: if you want to defeat someone, you should understand them well enough to be able to predict their behavior. If you do not do so, their actions will likely appear random and enigmatic.
                “They support conservative causes because they are evil, racist people” is a childlike response to a complex issue.
                The first real Trump supporter I met was a NY-born Jewish expat. I had always assumed that he was pretty liberal. He is an educated, polite, and compassionate person. “because hate and racism” does not explain his support of Trump.
                (When he asked me what I though of Trump, I told him that Trump seems like what a very poor person might imagine a tycoon to behave.)

              • Mike Anderson
                Posted March 12, 2019 at 1:26 pm | Permalink

                But “celebration of hatred”? If you actually believe that, then you are basing your view on an exaggerated and stereotyped understanding of their beliefs.

                Absolute nonsense. My view is based on hard evidence – video evidence of people acting in a frenzied, hate-driven manner. The way you try to blame this on “the media” only adds fuel to the hate.

                Only a month ago a cameraman was attack at a Trump rally in a rage of hate. These people are degenerates to actively seek out these festivals of hate.

              • Mike Anderson
                Posted March 12, 2019 at 1:30 pm | Permalink

                “They support conservative causes because they are evil, racist people” is a childlike response to a complex issue.

                Pure strawman. I’m not criticizing conservatives or conservative causes. I’m criticizing the hate promoted by Trump and those that rationalize it.

              • max blancke
                Posted March 12, 2019 at 7:51 pm | Permalink

                “Only a month ago a cameraman was attack at a Trump rally in a rage of hate”

                A person wearing a Trump hat shoved a cameraman and shouted at the assembled media at a Trump speech. Trump interrupted his speech to make sure the cameraman was OK. The man was ejected from the event, and may face prosecution for the assault. After the event, the Trump campaign thanked the security and law enforcement officers present for their swift action.
                We do not know yet who the person was, or what penalties he will face.
                The media are in much more danger at a left event. In a few minutes looking, I found examples of leftists chasing a WaPo crew screaming “get that camera!”, and “F—ing camera fairy, f— off!”. Leftists cutting the audio cable of an ABC crew to keep from being interviewed, cameras grabbed from media and smashed on the ground, black paint thrown on a news camera while filming, and a camera man rescued, bleeding, by the police after having his equipment destroyed and receiving a beating. The perpetrators in these cases attacked as a group, and were not arrested for their acts, as far as I can tell.
                But if you want to magnify the one deranged person who shoved a reporter and was condemned by Trump for doing so, and minimize or ignore the real attacks by leftists on the media,then you are presenting a good example of what we are talking about.

                Trump gets the same sort of news coverage that a Putin opponent receives from state media in Russia. That is yet another sign that he is no fascist. Or if he is, he is the worst one ever.

              • Posted March 13, 2019 at 10:44 am | Permalink

                Here’s an alternate take on this. Trump incites the crowd to hate the media, calling them “fake news” and worse. This doesn’t cause most of those in the audience to actually commit crimes against reporters but a few do. Trump creates a divisive atmosphere, hinting at violence strongly, sometimes even talking about punching people and shooting someone on New York streets. Of course, there are nuts willing to do violence on both sides so it should be no surprise when actual violence breaks out. While people bear responsibility for their actions, we have a President who is inciting division and calling for violence. When challenged, he denies it, of course, but then speaks the same way at his very next rally.

              • Michael Fisher
                Posted March 13, 2019 at 10:56 am | Permalink

                A moronic disrupter who knows the 0.1% [or whatever] of loons in his constituency are listening. Just another Tuesday night LIVE at the WWW SmackDown for the evil orange goblin. And so much more satisfying than sitting & reading policy documents.

              • Michael Fisher
                Posted March 13, 2019 at 10:58 am | Permalink

                WWW WWE

              • rustybrown
                Posted March 13, 2019 at 3:38 pm | Permalink

                You seem to be under the assumption that Trump’s rhetoric in regards to demonizing opponents is somehow unique to him. Not only do I strongly disagree, I think MOST of the hateful, violence-tinged rhetoric comes from the left these days.

  14. Torbjörn Larsson
    Posted March 11, 2019 at 2:01 pm | Permalink

    A “cogent argument”?

    If this is a philosophy/ideology question of whose personal opinion wins a popularity contest instead of a science/realpolitik question of usefulness for the society, count me out.

    • Filippo
      Posted March 11, 2019 at 2:27 pm | Permalink

      sub

  15. Mike Anderson
    Posted March 11, 2019 at 2:22 pm | Permalink

    That argument also ignores the fact that we already have a line, as well as the fact that lines are inherent every law we have. Drawing those lines and acknowledging exceptions to which the rule doesn’t apply is what courts do all day every day.

    That’s kind of my position as well. I think we need to acknowledge that we don’t want absolutely free speech, and given that, the discussion should be about how we allow speech to be limited (and must of us agree that should be minimal).

  16. Ken Kukec
    Posted March 11, 2019 at 2:23 pm | Permalink

    Leiter’s argument seems to boil down to this: because most of us submit ourselves to speech that is moderated or curated — in the classroom, through the mass media, on websites such as this — and because much of the resulting speech we’re exposed to is crap, it wouldn’t be a big deal for the state to take over the moderating and curating under color of law, except that we have no idea how the state might go about doing so that wouldn’t likely make the quality of our speech even crappier.

    I think Leiter is wrong on the first part — I think there’s a huge difference between submitting oneself voluntarily to curated speech and having such curated speech thrust upon one by the state — and though his second part is undoubtedly correct, so what?

  17. SRM
    Posted March 11, 2019 at 2:28 pm | Permalink

    I especially appreciate the question of who gets to be the censor when determining what can and cannot be said, at least in public, and I favour free speech.

    However, I can also imagine the response: well, we exist under all sorts of laws that regulate our behaviour (especially in public), and these laws are enacted by governments, and governments are elected by the people. What makes certain speech acts any different? Is it just that words in themselves are often less harmful than actions?

    • Posted March 11, 2019 at 5:14 pm | Permalink

      The Constitution, and the Bill of Rights in particular, was motivated by the fear that government could become tyrannical. And the first thing any tyranny does is restrict speech.

      • SRM
        Posted March 12, 2019 at 5:03 am | Permalink

        Yes, and that is where the polar extremes of right-wing and left-wing ideology wrap around and join each other in similarity.

        But in any case, pointing to American institutions isn’t a completely satisfactory argument in countries like Canada, for example. We have laws that can be used and abused toward stifling criticism of certain ideologies under the guise of hate speech.

        Maybe an argument for accepting laws regulating actions, but not so much speech, is that speech is a primary means of disseminating and discussing ideas amongst humans, where many other actions don’t really fall into that category.

    • Nicolaas Stempels
      Posted March 11, 2019 at 5:19 pm | Permalink

      The censor? “Me”, of course.

      • SRM
        Posted March 12, 2019 at 5:15 am | Permalink

        Yes, and by saying “Me”, you of course were referring to me, and anyone who thinks exactly like me. lol.

        But still, I am thinking about the response to the assertion that most of us accept many regulatory limitations in the form of laws, so why not speech. But I think in other comments above, the point is made that there already are laws that regulate against direct calls for violence, for example. Tension arises, I suppose, when certain people claim that any criticism of their ideas amounts to violence and therefore should be regulated (i.e abolished).

  18. Dave137
    Posted March 11, 2019 at 2:49 pm | Permalink

    The ever-relevant Hitch:

  19. Jamie
    Posted March 11, 2019 at 3:02 pm | Permalink

    My view, as some others have expressed, is that we already limit speech, and we do so for exactly the reason that Leiter proposes, viz., that “free speech” is not inherently good compared to limited speech. People who argue that the current position of the courts in the U.S. may not be perfect but is the best system they know, are not really engaging with Leiter’s argument.

    A lot of the controversy stems from the very general nature of the phrase “free speech”. We have many different types of “speech” and they cannot rationally all be treated the same. The freedom to research and communicate the results is essential to the progress of science. But scientific communication is not the same as political communication. One is concerned with finding and sharing truth, the other in concerned with persuading people to adopt or forgoe certain policies.

    And then there is commercial speech, an often overlooked form of speech in discussions of free speech. There is an argument for regulating commercial speech analogous to the argument for enforcing standard weights and measures, to restrict fraud and establish a reliable marketplace. You cannot say anything you want, including lies, about a product you intend to sell in the marketplace, and for very good reason. And while the argument that one can’t trust the authorities seems to have a lot of weight these days, would you really want to live in a society that gave a right to every vendor to describe their wares untruthfully?

    I think it is important when people stand up for free speech that they say very clearly exactly what kind of speech they want to keep free. Arguments such as, “ideas need to be examined in order to be disconfirmed” work great in the realm of science, less well in the realm of politics (so we have slander and libel laws) and even less well in the realm of commerce where “buyer beware” and “a sucker is born every minute” tend to dominate. I think we could stand to have more stringent truth in advertising laws and I think we could do a better job of regulating political speech without harming the principle of finding truth through examination of any and all contending ideas that works so well in science.

    But that does not mean I am sympathetic to the current ideas being floated about restricting speech based on “offense”, the politically correct speech movement or the call to censor and deplatform people with certain political ideas.

  20. Barry Jones
    Posted March 11, 2019 at 3:03 pm | Permalink

    I think Joseph Tainter was correct: it doesn’t matter how “good” you can show a change in society or law to be, any “change” is going to increase the aggregate level of complexity, and it is complexity that leads to the inevitable downfall of complex societies.

    Therefore, if we would take this uncomfortable truth seriously, then we’d have to ask which solution to a societal problem would create less complexity?

    How much complexity would be created if we handed out food stamps to every able-bodied unemployed person living in the projects?

    How much complexity would be created if all such people were sent on vacation overseas, and the plane simply disappeared without a trace along the way?

    Sorry, but if you wish to avoid seeing the collapse of a society like America, you cannot continue hyping the short term benefits of a proposed change, over the long term disadvantages.

    Using martial law to execute all convicted pedophiles and thrice-convicted violent felons would clearly sweep up a few innocent people in its wake, but unless you could argue that such imposition of martial law would make society more complex than would the current answer of putting them in jail, you cannot avoid the conclusion we already know from history: not all “good” changes for society can be achieved in ways consistent with the U.S. Constitution.

    Here’s your first lesson in harsh reality: to what degree did earth’s past wars, epidemics of disease and natural disasters put a damper on the current population numbers? If you like the fact that you can go to the store and back without needing to wait your turn at the checkout line with 50,000 other customers, aren’t you implicitly approving of all those population-decreasing wars, epidemics and disasters in the past? How much more over-populated would your city be, if all those people from the past hadn’t perished but were allowed to live and propagate as normal?

    China is like the parent who shoots the family dog for the sake of a greater long-term good (i.e, the dog is rabid, it will eventually start attacking people).

    America is like the 4-year old girl whose fixation on the short-term comfort of petting the nice doggie, and her ignorance of how leaving it unaddressed with create problems in the future, causes her to consider the harsher solution to be nothing but sadistic lunacy against a helpless doggie who doesn’t “deserve” to be put out of its misery.

    • Jamie
      Posted March 11, 2019 at 3:58 pm | Permalink

      any “change” is going to increase the aggregate level of complexity

      I don’t think that premise holds any weight. I can easily imagine a change that makes things less complex, say, for instance, a change from the complex pollution permitting system we currently have to a simple rule against polluting, or a change from the complex tax code we currently have to a simple one.

      These kinds of complexities in law exist so that some special interest group can take advantage of them. They accrue through an historical process of lobbying and persist largely because the system becomes so complex that only experts understand it. A class of experts thus develops and lives off of, and defends the complexities along with the special interests who lobbied for them initially.

      But that doesn’t mean that these systems can’t be simplified in principle. It just means there is political pressure to keep them complex and grow their complexity. There is also a lot of political pressure to make them simpler.

      Simple or complex does not necessarily correlate with good and bad. But the claim that any change necessarily increases complexity is an extraordinary claim that is not born out by a moment of reflection.

      • Posted March 11, 2019 at 4:13 pm | Permalink

        The cost of complexity and various transaction costs are severely underappreciated.

    • Posted March 11, 2019 at 5:11 pm | Permalink

      1) You sound like an unhinged radical advocating extra-legal acts of violence to bring about a revolution;

      2) “Here’s your first lesson in harsh reality…”
      What hubris, to think you are our teacher.

      I urge you to depart and perform an auto-erotic exercise.

    • Michael Fisher
      Posted March 11, 2019 at 8:06 pm | Permalink

      I’m hope you’re not any sort of “decider” in your community Barry Jones – it would improve society somewhat if the system was designed such that “deciders” always run some Risk of Ruin – a lottery element that now & then puts them mercilessly at the head of the culling queue. It would ensure they were more humane in their calculations for the future of everyone else!

    • BJ
      Posted March 12, 2019 at 8:56 am | Permalink

      This comment is both arrogant and mostly incomprehensible. I can’t even figure out what your argument is (though you have made clear some sub-arguments, many of which seem to have no relation to either each other nor the argument about how much speech should be restricted), and most of the statements you’ve made as if they are fact desperately need support by either theory or evidence (for example, your claim that my satisfaction at not having to wait too long at a supermarket checkout line is somehow implicit approval of genocide, disaster, and disease to reduce the population. Or that China is somehow more adult in how it deals with problems. You provide zero explanation for how such ideas are rational or reasonable).

  21. infiniteimprobabilit
    Posted March 11, 2019 at 3:35 pm | Permalink

    I think ‘free speech’ is desirable. I just don’t believe it’s absolute, sacrosanct, inviolate, or efficacious, or that it can be uniquely ring-fenced to distinguish it from ‘unprotected’ speech.

    As many commenters above have pointed out, even in the US there are many forms of speech which are NOT ‘free’. As soon as you draw a line anywhere, there will be people wanting to push the boundaries of that line one way or the other. It’s a slippery slope and not one that can be avoided.

    Coincidentally, I just made a small donation to a defense fund for Chelsea Manning, who is in jail again, this time solely for refusing to talk to a grand jury investigating Wikileaks and which would certainly order her to name any journalists she spoke to. She is in jail for not talking. Where’s the free speech there?

    cr

  22. Posted March 11, 2019 at 3:54 pm | Permalink

    I think Leiter is right in the sense that he’s identified a real problem, though I am not sure it should be called a “free speech” problem or that its solution involves restricting speech. To be fair, Leiter is specifically not offering a solution.

    There’s so many ways to come at this problem it is hard to know where to start. How about the failures of direct democracy? At a glance, this might sound like perfect democracy (Wikipedia even mentions that it is also called this). Everyone votes directly on the issues of the day. Of course, the Brexit referendum is just one example of why this doesn’t work. Most voters aren’t knowledgeable in the question to be decided and are not willing to study before voting. At a minimum, this results in a failure in the marketplace of ideas. At a maximum, the voters can easily be manipulated into voting a certain way.

    Another way to see the problem was mentioned in the interview:

    “The big crisis of the internet era is that it has eliminated a lot of the traditional intermediaries, such as the New York Times or the Wall Street Journal or PBS or the BBC and so on. Those old intermediaries weren’t perfect, but they were better than what we have now.”

    While the internet has enabled virtually anyone to speak, that is also part of the problem. We’ve eliminated a lot of respect for intermediaries and authorities that study the problems being discussed. If you believe that most intermediaries misrepresent the truth, then you are going to see that as a good thing. On the other hand, if those intermediaries are mostly smart people and experts in the field, you are going to miss a valuable source of information.

    We can see the result of this with global warming and the immunization problem. People hear opinions on both sides and, rather than relying on experts, side with their peer group. In such cases, the marketplace of ideas does not bring the best ideas to the front.

    As I said, I’m not sure the solution is restricting speech. That said, it bothers me that lying is only a crime in a court of law, testifying before Congress, or being interviewed by the FBI. I would like to see an increase in the number of situations in which lying is a criminal offense, though I have no idea how to do this in detail.

    • Posted March 11, 2019 at 4:10 pm | Permalink

      There are a few areas in addition to those you mentioned. False swearing on affidavits is a crime. Fraud and fraudulent misrepresentation is another area. That is a pretty broad field. Misstating assets to obtain bank loans has been in the news lately.

      • Posted March 11, 2019 at 4:19 pm | Permalink

        Yes, you are right of course. Still, I would like to see it a crime for a politician to knowingly lie in public.

        • Posted March 11, 2019 at 4:25 pm | Permalink

          That could be a high crime and misdemeanor. The history and original meanings of that term included acts and speech, and inaction, in addition to criminal acts. Researching that term is interesting reading. If could be said to be an excuse to get rid of someone deemed incompetent, unable yo go the job or just unwanted in general.

          • Posted March 11, 2019 at 4:29 pm | Permalink

            Well, I certainly wasn’t saying that someone should be impeached for lying in office. That said, Trump has lied so many times perhaps we should make an exception for him.

        • Posted March 11, 2019 at 5:13 pm | Permalink

          How, exactly, would you prove that the politician was aware they were lying?

          On myriad complex issues, who gets to decide what is true and what is false?

          • Posted March 11, 2019 at 5:41 pm | Permalink

            These things would be adjudicated in the appropriate courts depending on who was doing the lying and in what context. The rules would be similar to those existing situations in which lying is a crime. My motivation is to expand the scenarios in which lying is a crime, not change the mechanisms and criteria by which they are judged. Clearly, people would need to lie less or our courts would be jammed.

            Perhaps oaths of office need to change. I haven’t studied them in detail but, as I recall, they only ask the officeholder to tell the truth during the swearing-in process and to follow the Constitution which, AFAIK, doesn’t say anything about lying.

            • infiniteimprobabilit
              Posted March 11, 2019 at 6:55 pm | Permalink

              I sympathise with the motive, but I can see many fishhooks in practice.

              For example – I am sure that Roosevelt lied – by commission or omission – hundreds of times during World War 2. (And the same goes for every other leader). Reason: To avoid giving useful information to the enemy. It would have been treason NOT to lie.

              Another example – the police and others frequently withhold information or even invent false ‘facts’ during an investigation in order to improve their chances of catching the perpetrator.

              Elected officials lie or hide information about security arrangements.

              And individuals have a right to at least some privacy.

              And so on.

              There’s inevitably a clash between that and the public’s ‘right to know’, and that will inevitably create huge grey areas where it’s a matter of judgement or opinion where the line lies.

              cr

              • Posted March 11, 2019 at 7:30 pm | Permalink

                “National security” certainly would be one defense for lying but a (possibly closed) court could judge whether it was a valid excuse. Same with your other examples. Privacy would be dealt with by simply staying silent. I’m certainly not suggesting that people be forced to answer any question put to them. Of course, there may be other details that make things difficult but, for the most part, these already exist and are handled just fine, as far as I know. I’m only suggesting that the venues in which we make lying a crime be extended, not the process by which we deal with violations. People testifying before Congress already refuse to answer questions based on a variety of excuses. If someone lies because they’re being forced to say something because of extortion, say, then that obviously is a good excuse.

              • Posted March 11, 2019 at 7:43 pm | Permalink

                Do you have any examples of what exactly you would like to see passed? Types of lies, subject matter, people involved, etc.

              • Posted March 11, 2019 at 7:54 pm | Permalink

                I’d start with making a public official lying to their constituents a crime. Perhaps we would start by restricting it to public speeches. Perhaps there would be “on the record” speeches at which lying is a crime, as opposed to other less formal venues. Perhaps a citizen who thought they were being lied to would ask the politician, “Are you willing to say that on the record?” Perhaps this could be tried locally first to iron out some of the details.

                I feel like we are inundated these days by misinformation. Many of the checks and balances we used to to have are no longer doing the job. We need to do something to get truth back.

            • BJ
              Posted March 12, 2019 at 8:58 am | Permalink

              Surely, you are aware of who appoints the Federal judges who would oversee such adjudication…

              • Posted March 12, 2019 at 11:12 am | Permalink

                Sure but ultimately there will be humans in the loop regardless. That’s what makes Trump so scary. All we can do is hope the next POTUS is better.

                On the other hand, judges have often shown independence from those who nominated them. May it continue to be that way.

            • Posted March 13, 2019 at 11:58 am | Permalink

              So, are we talking about ‘I did not have sexual relations with that woman’ type of lie, where obviously you know you did?

              Or, a ‘women get paid less than men for the same work’ falsehood, where you might well think that to be true, even though the evidence (which you didn’t bother checking) disproves it?

              And what about hotly contested points, like the Armenian genocide/not a genocide debate mentioned here recently?

              • Posted March 13, 2019 at 12:04 pm | Permalink

                Sure, I get your point. It is going to be hard to adjudicate these kinds of lies, except perhaps the one Clinton told. I’m thinking more along the lines of the bald-faced ones that Trump likes to tell. Ones where he quotes statistics that directly contradict qualified sources, often ones created by his own administration.

  23. rustybrown
    Posted March 11, 2019 at 4:31 pm | Permalink

    I’m a free speech absolutist as it currently exists under American law. It’s reasonable to have the few exceptions we’ve agreed to impose, most of which protect the individual safety and liberty of others. Any further restrictions would be unwise.

    The “Who’s going to be the censor?” problem is insurmountable. Humans are fallible, power dynamics shift, and having some type of official censor would inevitably lead to disastrous results.

  24. Posted March 11, 2019 at 4:51 pm | Permalink

    Thanks, Dave 137.
    Hitch sums up my position absolutely.

  25. Adam M.
    Posted March 11, 2019 at 4:56 pm | Permalink

    I think supporting laws against libel and slander is practically an admission that the marketplace of ideas is not good and reliable enough to winnow truth from falsehood. And if it’s not good enough when the object is a fact about a person, then why should it be good enough when the object is a fact about some other part of the world?

    Market theory generally assumes both sides are knowledgeable about the full context and terms and consequences of the “transaction”, and any lack of relevant knowledge (or inability to understand it) leads to perversion of the market. Hence the importance of truth in advertising laws, etc.

    Perhaps in the distant future when we’re all intelligent and AI guardian angels sit on our shoulders pulling up all the information we need to know to arrive at correct and unbiased conclusions, then we can trust the marketplace of ideas to give us the right results.

    But today a lot of people are siloed off in their echo chambers, or steeped in cultures that give them blinders and lead them astray. (That surely includes myself in some ways.) So I think Leiter has a point, but I also agree with him when he says that we’re unlikely to be able to improve upon what we’ve got anytime soon. But I don’t think it’s as simple as the US’s system being flawed. Humanity is flawed.

  26. tubby
    Posted March 11, 2019 at 5:48 pm | Permalink

    So, if I understand, because Leiter controls what can be said in his classes, and Americans can be undereducated and ininformed, the government is justified in preventing me from posting erotic beat poetry on Twitter? Feels like the authoritarian impulse.

  27. Posted March 11, 2019 at 5:51 pm | Permalink

    It’s the legislature, the courts and the constitution that act as censor and determine where the line is and what speech is free and what is not.
    The first amendment could be changed or amended to reset the lines or the laws. Or it could be reinterpreted to mean something somewhat different than what the court says it means today.
    Free speech, like anything dlse depends in the end to the will of the people. Subject to change and mileage may vary.

  28. davidlduffy
    Posted March 11, 2019 at 11:13 pm | Permalink

    No-one has mentioned Super PACs or the free speech of non-citizens involving themselves in US politics eg Russia and the DNC email leaks. Many other real democracies restrict spending on and amounts of political advertising on the grounds that they distort the democratic process.

    • Posted March 12, 2019 at 1:19 am | Permalink

      I would be in favor of all campaigns being funded by the government only or with strict limits to how much a candidate can raise and spend. This would put everyone on a level playing field. Making it all about money is just warping everything. PACs, lobbyists, and other money groups are killing democracy in the US. Just look at how the NRA warps everything. So much for the marketplace of ideas.

      • Michael Fisher
        Posted March 12, 2019 at 1:37 am | Permalink

        Compulsory release of birth certificate, all historical X-rays & other medical records, education results, college yearbooks, tax returns.

        Compulsory general knowledge & reasoning test. Results released & voters can make their mind up at the ballot box. Ditto psychiatric examination. 🙂

        • Posted March 12, 2019 at 5:37 pm | Permalink

          Certainly the stuff in your first paragraph makes sense, as does any objective information from the past, but it would be tough to get subjective tests to fly as there would be partisan battles over who is to make the judgement, what exactly is tested, etc.

          How about a proper background check and security clearance? This should be done right after all the primaries in order to give the media and the intelligence services to follow up on any issues. That alone might have scared Trump from even running.

          • Michael Fisher
            Posted March 12, 2019 at 6:39 pm | Permalink

            As it stands the ‘intelligence community’ offers outline security briefings to the presidential nominees of the two major political parties to facilitate a smooth transition to CinC of the most powerful military in the world. The nominees don’t have to have any official security clearance, but their aides do. I think this is an absurd anomaly in an election process that takes so damned long [though I’m sure there’s plenty of unofficial vetting going on in the background].

            I would like to see serious, open vetting – for one thing it will make the field a good deal smaller if it is known the results will be published. Also some way of restraining people from faking an announcement that they’re in the running – which they do to gain more influence & power when they drop out & put their support behind the real candidate. I’m not sure how that could be done though – there should be some cost to their political career I suppose.

            I don’t think there’s an answer in a system that’s thoroughly corrupted by lobbying interests with bottomless pockets. Thus an intelligence/knowledge test is probably irrelevant [now I think about it], as voters opt for candidates based maybe on perceived values & perceived beliefs even when it hurts themselves: “this orange, TV celebrity ‘billionaire’ is just like us Elmer – he hates what we hate.”

            • Posted March 13, 2019 at 10:21 am | Permalink

              Agreed. This POTUS is showing us all the gaps in the Constitution which pretty much assumes that the voters wouldn’t elect someone like Trump. My hope is the next POTUS and Congress push for legislation that fills in some of these gaps.

  29. aljones909
    Posted March 12, 2019 at 7:30 pm | Permalink

    “As I point out, we have an important institution in American society that aims to discover the truth, … In the court system, we impose massive restrictions on speech to facilitate the discovery of truth.”
    Science is much more successful than the legal system at discovering the “truth”. It allows total free speech without censorship (though no guarantee of a particular platform). Rupert Sheldrake has been pushing his dissident theories for decades.
    The social sciences must be excused from this success story. They seem to be failing because they do limit free speech.

    Chomsky:

    “Goebbels was in favor of free speech for views he liked. So was Stalin. If you’re really in favor of free speech, then you’re in favor of freedom of speech for precisely the views you despise. Otherwise, you’re not in favor of free speech.”


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