Freedom of Speech

Paul McKeever has a post on Freedom and the Proper Regulation of Speech in which he claims that it is the role of government to outlaw speech that denies individuals control over their life, liberty and property. The object of this post is to argue that freedom of speech is indeed absolute.

The right to freedom of speech is a special case of the right to freedom of action – the only right that man has (Look at the first five paragraphs of this post for a detailed argument on why man has the right to freedom of action). It is considered specially by most constitutions because of its importance in maintaining a free society. Given this importance, it is worth considering the concepts underlying the right to free speech.

Speech as a form of action:
Speech is just a form of action. There is nothing about speech that does not apply to other actions. Speech may involve the initiation of physical force. Shouting “Fire!” in a theatre is just as much of an initiation of force as is the breaking of a chair in the same theatre. Both are actions that are not permitted by the owner of the theatre and thus are an initiation of force.

Initiation of force:
Initiation of physical force is the only thing that can curtail man’s freedom of action, and consequently, the only thing that a government must protect. Any “regulation” of speech that does not involve the initiation of force is a violation of  the right to freedom of action.

Responsibility of judgement:
Judging the statements or claims made by others is a necessary part of living in a society. Since no one can think for another person, this judgement and its consequences are the sole responsibility of the individual. A liar is morally responsible for his lies but that does not absolve his victims from the responsibility of judgements. Nor does the fact that man is infallible absolve him of that responsibility. It is a fact of nature that man must think, judge and act even though he is neither omniscient nor omnipotent.

Fraud as distinct from lies:
Fraud is the violation of a contract and thus an initiation of force. Not every statement is made within the context of a contract. In fact the vast majority of conversations do not involve any contract at all.

Role of government:
The proper role of government is limited to protecting the right to freedom of action. Ensuring any other form of justice is not its role. Notably, ensuring that rational men do not suffer because of the wrong judgements of others is not the role of government. Governments are instituted because of the necessity of placing the retalliatory use of force under objective control. Any other function that a government performs necessarily involves the initiation of force and is a perversion of the concept of a government.

Impossibility of outlawing lies:
The initiation of physical force (whether direct or the violation of a contract) is an objective standard. There can be no honest disagreement about whether a particular case involves the initiation of physical force in the presence of witnesses or evidence. Truth is often not an objective standard legally nor does it apply to all statements. A statement such as “X is incompetent to complete project Y on time.” is a matter of individual judgement and a prediction about the future. Truth does not apply to it. (Update: Look at the comments below for more on this) A statement such as “Candidate X believes in sorcery” cannot be judged objectively as there is no way to either prove or disprove it. A legal system that allows laws without objective standards will soon disintegrate into an arbitrary rule of men.

It should be clear from the above points that freedom of speech is an absolute right just like the right to life and the right to property and may not be violated by a proper government. For the sake of completeness however, I will analyze the flaw in McKeever’s argument and consider his examples.

McKeever writes:

Freedom is control. Specifically, it is control over ones own liberty and property; over the pursuit of ones own survival and happiness. The role of government is to ensure that no other person causes you to lose that control; that no other person deprives you of your freedom.

This is the primary flaw in his argument. Freedom is not control. Man is free by nature. He does not control his own life in the same sense. For example, I do not control whether I get to keep my job. If my employer decides to fire me, is he causing me to lose my control? I do not control my immediate emotions. If a stranger abuses me verbally and I get angry, is he causing me to lose my control? In both these cases I retain my freedom but do I lose my control or did I never have it?

Consider his examples:

By selling you a can of highly corrosive acid labeled “Soda Pop”, a person can deprive you of your life.

This is fraud and has nothing to do with freedom of speech.

By framing you for a crime you did not commit, or by bearing false witness against you, you can be deprived of your liberty.

If he frames me for a crime I did not commit and escapes detection completely so that he is not even required to testify, this has nothing to do with freedom of speech. If he bears false witness, he is lying intentionally on oath, which is a violation of an explicit contract with the legal system itself. Again it has nothing to do with freedom of speech.

By selling you an ineffective substance as “a new, 100% effective cure for strep throat”, you can be deprived of your property (i.e., the money you paid for the substance).

Fraud again.

Common to each example is the making of false or arbitrary assertions upon which you or others found decisions concerning your life, liberty, or property.

No. Common to each example is the initiation of force.

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8 Responses

  1. > “A statement such as ‘X is incompetent to complete project Y on time’. is a matter of individual judgement and a prediction about the future. Truth does not apply to it.”

    Are you saying individual judgments are neither true nor false? What kind of judgments would be true or false? Group judgments?

    Truth is recognition of reality. Can’t an individual make a statement (judgment) about reality? If he can, then his statement is either true or false (or arbitrary).

    Thank you for your article. It is stimulating me to think more about freedom of speech, probably the most important issue of our time.

  2. I’m a bit confused here. You don’t think that Paul is wrong on practical issues, but you think his counterexamples to absolute freedom of speech just shouldn’t be called freedom of speech issues?

    ” ‘Common to each example is the making of false or arbitrary assertions upon which you or others found decisions concerning your life, liberty, or property.’

    No. Common to each example is the initiation of force.”

    Are these not the same thing for same reason? As in, isn’t it Paul’s argument that “…the making of false or arbitrary assertions upon which….life, liberty, or property” is equivalent to the initiation of force?

    I agree that a statement like “X is incompetent to complete project Y on time” shouldn’t be subject to slander laws (although I DO think truth applies to it), but a statement like “X committed crime Y” (whether in court or not) SHOULD be subject to slander laws. Even a statement that is not about a crime committed, but is simply 1) defaming, and 2) objectively false, should be subject to slander laws. In civil courts, however, not criminal.

  3. Burgess,
    Thanks for picking on that. I should have been clearer in my choice of language. Consider the following examples

    a. There is a glass on the table.
    b. X is incompetent to complete project Y on time.

    ‘a’ is a statement. It is clearly either true or false. All that is needed to evaluate it is direct observation and an understanding of the concepts of ‘glass’, ‘table’ and ‘on’.
    ‘b’ is a judgement. It involves more than observation and an understanding of relevant concepts. It requires an integration of observation, concepts, causality etc.
    Truth does apply to judgements in a metaphysical sense. That is, all the factors involved in a judgement are real, the relationships between them are real and the application of logic involved in making the judgement is proper or improper.
    But consider that in ordinary language, we wouldn’t call example ‘a’ a judgement. Nor would we call example ‘b’ a statement (of fact). There is a reason why we have the concept judgement at all. It refers to those statements for which getting all the relevant evidence is impractical or impossible.
    In an epistemolgical sense, a judgement is not true or false, but good or bad (or in other words, probable or improbable). In an arguement about statements of fact, if everyone is honest and has evidence about the facts, there can be no disagreement. But honest individuals may disagree in their judgements even when presented with the same facts, usually because there are too many factors involved in most judgements. Law must be based not on truth but on demonstrable truth. Implementing laws should not require people to form judgements, because such laws would necessarily be non-objective, i.e dependent on the particular individuals implementing them. I will have more to say about this in my response to Luke’s comment.

  4. Luke,
    Regarding the truth issue, look at my previous comment.

    The concept ‘objective’ as applied to law means ‘demonstrably true’, not ‘corresponding with reality’. Consider the use of physical force. The use of physical force creates evidence about which no disagreement is possible (at least in principle) if the evidence is available. It is an objective standard for enforcing laws. The same applies to the indirect use of force through fraud. in both cases, it is possible for the evidence to be concrete physical evidence which only needs to be observed, not judged. And it is only in the presence of such evidence that a conviction may properly be made.

    There are two positions on punishing false assertions that I can think of:
    1) A person making a false claim should be punished if the claim results in damage to others
    2) A person making a false claim should be punished irrespective of whether it causes damage.
    I believe you are in favor of the first. Evaluating whether a false claim resulted in damage and determining the extent of damage necessarily involves a judgement (in the sense of my previous comment). The judgement involved becomes even more non-objective (in a legal sense) if you include emotional damage or damage by a chain of consequences. It is impossible (even in principle) to have an objective implementation of laws that punish such damage.
    The second position that any objectively false claim should be punished implies that men has a legal responsibility to always speak the truth. I will not go into detail here, but this position is absurd.

    Note that government has a monopoly on the use of force and that this monopoly is delegated to it by the people. Delegation is proper only if the governments laws and their implementation is objective, i.e, only if the government’s actions can be judged by each individual to be right (atleast in principle). This is possible only if the government’s actions are based only on facts and evidence and not on the judgements of the adjudicators.

    The role of government is restricted to punishing or preventing the initiation of force. It is not protecting people from any other possibly bad consequences of living in a society.

    I hope that makes my arguement clearer.

  5. You are right to the extent that McKeever totally confuses speech and fraud. Fraud is a type of coercion, and therefore all mature laws on contracts declare all contracts (implicit and explicit) based on coercion and fraud to be void ab initio. In his post, the following section-

    By selling you a can of highly corrosive acid labeled “Soda Pop”, a person can deprive you of your life. By framing you for a crime you did not commit, or by bearing false witness against you, you can be deprived of your liberty. By selling you an ineffective substance as “a new, 100% effective cure for strep throat”, you can be deprived of your property (i.e., the money you paid for the substance).”
    […]
    It is for this reason that government rightly imposes and enforces laws against fraud. The defrauder falsely claims to have control over a value that, in reality, he lacks; he misrepresents the facts of reality so that his victim will draw an erroneous conclusion that would not, otherwise, have been drawn. He thereby causes his victim to agree to transfer control of something (typically property) to the fraudster without ever receiving control of the promised value in exchange. The law rightly responds to the making of such false claims by forcing the fraudster to compensate his victim or otherwise pay for the loss his false claims allowed him to cause.

    is completely related to fraud. And therefore his statement – “Common to each example is the making of false or arbitrary assertions upon which you or others found decisions concerning your life, liberty, or property,” and your statement – “No. Common to each example is the initiation of force,” mean the same thing – fraud.

    I don’t think there is anything wrong in his argument about freedom being the same as “control over ones own liberty and property; over the pursuit of ones own survival and happiness.” Consider it like this – if someone else held the power – control – over your life, property etc, are you free (talking about coercion here)? I think that is what McKeever is referring to, and not the right to demand that others provide for his every whim and that they don’t offend him (like you suggest in your examples).

    About defamation, libel, slander, character-assassination, whatever, I have always thought that such speech violated the rights of the person being targeted – his character, reputation, business, everything and hence had no relation to freedom of speech. Yes, slander works because third parties believe in it without checking the facts for themselves – they make bad judgments, but it is a fact that such speech causes damage.

    I am playing the devil’s advocate here, but consider this example from McKeever’s post-

    “Freedom of speech” – a law prohibiting government from punishing the expression of ideas, beliefs, etc. – would be an oxymoron were it to imply that government cannot outlaw speech calculated to obviate consent and thereby to deprive a person of control over their own life, liberty or property. Ask yourself: how would “freedom of speech” be the result of a “freedom of speech” law preventing the government from taking any action against a person who, by means of fraud, obtains copyright in an author’s work so as to prevent the printing and distribution of the work; so as to prevent the author’s words from reaching any audience?

    What is the difference between intellectual property rights and right to one’s reputation if we simply concentrate on the rights part? If slander is left unpunished even if it has “demonstrably” resulted in damages to someone’s reputation, then why should a “pirate” who sings songs composed by someone else and charges an audience who may or may not be aware of this fact for the same, be punished? I am not raising this issue just like that. Stephan Kinsella uses the fraud argument (its a fraud on consumers, he argues) to deny intellectual property rights protection to trademarks – in other words, brand names – reputation (Kinsella – Against Intellectual Property, p.58)

    Do you suggest that the damage caused by slander cannot be quantified while the damage caused by IPR violations can be? Because both involve third parties who take decisions based on facts – sometimes they consider them, sometimes they don’t.

    I say, therefore, that McKeever is wrong when he says that laws against slander are a restriction on freedom of speech. Slander and freedom of speech are not related just as property rights and freedom of speech are not related. Freedom of speech is thus absolute.

  6. Aristotle,
    “I don’t think there is anything wrong in his argument about freedom being the same as “control over ones own liberty and property; over the pursuit of ones own survival and happiness.” Consider it like this – if someone else held the power – control – over your life, property etc, are you free (talking about coercion here)?”
    But others do control my life to some extent (at least) without my losing any freedom. Others decide whether or not they wish to deal with me and thus affect the course of my life. That could be called control. In fact it is very commonly used in this way to argue against monopolies, cartels etc… Consider the fact that I use Microsoft’s software platforms to make my living. So far I have used very few other technolgies and so am very dependent on Microsoft. Clearly Microsoft controls the scope and direction of development and maintenance of its platforms and thus controls my capabilities. Can I say that I should have the right to control my life and therefore demand a voice in Microsoft’s decisions? Clearly not. But confusing freedom and control would allow that. As it unfortunately does, with all the anti-trust laws.
    Freedom (as in freedom from physical force) is a very well-defined concept and there is no need to use a concept like ‘control’ which is not well defined to explain it. Doing so can only lead to sloppy thinking and wrong conclusions.

    “What is the difference between intellectual property rights and right to one’s reputation if we simply concentrate on the rights part?”
    The concept of intellectual property is quite clear in principle. Consider the example of a novel. The author has created value which did not exist. Further when he exchanges it with someone for money or other considerations, he has the right to set the conditions under which the exchange occurs. The exchange is a contract. If someone breaches those conditions, he has breached the contract and initiated force. The difficulty with IP rights lies in constructing a proper implementation, but I will not deal with that here as it is not directly relevant to freedom of speech.
    About a “right to reputation”, there is certainly no such thing. The concept reputation refers to the favorable judgements of a number of people. No one can have any sort of right on other people’s judgements.

    “Do you suggest that the damage caused by slander cannot be quantified while the damage caused by IPR violations can be?”
    The damage caused by slander occurs by changing the judgements of people. To judge whether damage has occurred requires an answer to the question “Did the slander cause people to change their judgements?” This cannot be answered objectively.
    With the violation of IP rights, the relevant question is “Did X breach the conditions (concrete physical ones) under which he obtained the property?” This can easily be answered objectively.
    While the objectivity issue is certainly important, it is not the most important fact to consider. The crucial question which must be answered to determine if a particular action should be legal is “Did the action initiate force?” Damage is not a relevant criterion here. It could easily be argued (and commonly is argued) that pirating music does not cause any damage to the composer or distributor as those who pirate music would not have bought the music in any case. Irrespective of whether that is true, pirating should be illegal since it is an initiation of force.
    The only reason I wrote about damage was to emphasise that inappropriate concepts of rights lead to non-objective laws. I dont consider damage as an important issue in deciding what is right. In essence my argument is, “Man needs thought, force is always antithetical to thought, force must be banned”

    P.S: If you have some significant disagreements with what I have written, it would be good if you could identify the fundamental points on which you think we differ and we can take it up from there.

  7. Significant? No. I had three points to make in my original post-
    1. McKeever confused speech and fraud, and both he and you were essentially referring to the same thing – fraud. Since you haven’t written anything against this, I think we agree.
    2. I gave McKeever the benefit of the doubt when he asserted “freedom is control” because no Objectivist will knowingly claim that he has the right to control people on whom his livelihood or survival depends purely because of such dependency. But your examples are based on the literal meaning of control. This shows why terms need to be defined before they can be debated. So I agree with you that “freedom” is pretty well defined and we rather stick to it than play with fire.
    3. Slander causes just as much damage as violation of intellectual property rights, both rely on third party judgments and both (slander, and trademarks in IPR law) are related to reputation. Its this point where I hesitate a bit.

    My exception for slander was purely based on damage caused by malicious propaganda. But damage or “harm” stinks of utilitarianism. Since we derive right to life and right to property from natural rights, initiation of force, not damage, should be the sole criteria of determination of what is legal and what is not. I agree with this, subject to the nuisance proviso (Murray Rothbard – Law, Property and Air Pollution (pdf)) which draws a line between aggression and claims based on nuisance. If I do agree, then I cannot also contradictorily maintain a position in support of laws against slander (I am now convinced that slander does not violate any “right”).

    “About a ‘right to reputation’, there is certainly no such thing. The concept reputation refers to the favorable judgements of a number of people. No one can have any sort of right on other people’s judgements.”
    Yes, there is no “right to reputation” per se, but the only reason I am still a bit hesitant is the link between trademark and reputation, and the contradiction in claiming that trademark infringement is a violation of property rights. So, when you do write about IPR, I would appreciate it if you contrast these two different standards of reputation.

  8. Aristotle,
    Although I have not given much thought to trademarks, I tend to think about them as analogous to signatures and not property. So I would consider trademark violation as a form of forgery.
    I have been thinking for some time about starting a series of posts on IPR. I will think more about this when I get there.

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