April 8th, 2021

studious

Free Speech and Compelled Speech

I have a pretty straightforward take on the first amendment: I agree with it, and I agree with the general thrust of courts to interpret its protections broadly. The government should not stop people from saying things, and this includes things that are reprehensible and hateful. Many ideas are dangerous and harmful, and as a general matter the government should not prevent them from being expressed.

This is less because of my great faith in the marketplace of ideas and its ability to make the best ideas rise to prominence and the worst ones fade to obscurity, than because I have zero faith in the government’s competence at same. If you tell the government that they get to decide what “hate speech” is, they’re not gonna lock up white supremacists for threatening poor minorities. They’re gonna lock up twitter liberals for saying “eat the rich”. This will not work out the way you planned.

So most questions of “should the government stop X from saying Y” aren’t interesting to me because my answer is just “no” unless it meets a very high bar. Like “we should meet at [specific address] at [specific time] in order to murder [specific person]” probably rises to the level of true threat and the government can arrest you for that. But “[politician] deserves the guillotine” is tasteless and wrong, but not criminal unless, eg, you are standing in front of a working guillotine with [politician] next to you while you encourage a crowd to seize them and put them into it. But in normal contexts, it’s hyperbole. I find it offensive and obnoxious, but I wouldn’t want it criminalized.

The issue of private companies censoring speech is thornier for me.

I do not love private companies censoring speech either, especially ginormous private companies like Amazon Web Services. I do not love that we live in a world where a handful of technocrats control access to the vast majority of the American audience. One of the reasons I like the fediverse is that it’s a decentralized form of social media and therefore much harder for a single entity to decide what can and can’t be said there.

“Compelled speech” is the legal term for forcing a private person or entity to say something whether they want to say it or not. The first amendment is considered to protect individuals against compelled speech as well. Just as there are exceptions to free speech like “it is illegal to make a true threat”, there are narrow exceptions where compelled speech is legal. But the broad legal principle is “the government can’t make A say X,” and this is, again, an area where I agree with the principle.

That means that whether or not I like the decisions Amazon Web Services makes about who to host, I also don’t feel that the government should compel AWS to provide hosting services to any given entity. But getting back to “a handful of technocrats control access to most people”: it’s still kind of a terrible result. The answer to “do I distrust Big Government or Big Business” is “yes”. But Big Business doesn’t have its own army or police force so it’s slightly less entrenched. I have a little more hope that market forces will help competition arise and/or induce existing businesses to wield their influence with restraint in order to avoid that.

I kind of feel like I should have a better answer than this, on the one hand, and on the other hand it’s just as unsatisfying as my response on hate speech so at least it’s consistent?

Maybe it's not so much thornier as "the older I get, the less I feel like principles actually work out in practice" and I don't know what to use if I don't use a principle. Like maybe the principle isn't as great as I'd hoped, but throwing it out feels like a guaranteed way to get an even worse result.



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