Track One Laws Concerning Messages That Cause Harm in Two Steps

Some messages cause harm to the audience or to third parties only if the audience takes the message as providing reasons to undertake the harmful conduct. A false or deceptive message may cause those who believe it to rely to their detriment (“the bridge is safe to drive over”) or the detriment of others (“John Doe is a lush and should therefore be avoided”).

In Chapter Four we sought in vain for a principled justification that would neither insulate all expression of this type from legal suppression nor insulate none of it. The line-drawing the courts in various countries have engaged in to distinguish advocacy from incitement, solicitation, and “fighting words,” or ordinary accounts of criminal activity from how-to-books on crime, or false statements of “fact” from false expressions of “opinion” or “value,” were, I argued, ultimately without principled foundations.

Nevertheless, even in the absence of principled lines of demarcation, much less the foundation provided by a human right, there are good reasons to carve out some domain where government is prohibited from suppressing messages because the content of those messages is false, deceptive, or otherwise likely to cause audiences to engage in harmful conduct. Surely, and particularly in democracies, messages that are critical of the government and its policies should be protected to some extent, even if the government regards them as danger­ously false or misleading. Even with a defense of truth permitted, prosecutions for seditious libel run the risk of deterring accurate criticisms of the government along with false or misleading ones. And even though we cannot in advance of receiving those messages assess whether the number and value of deterred accu­rate messages - remember, we are dropping the evaluative neutrality constraint - outweigh or are outweighed by the number and disvalue of the suppressed ones, there are dangers in giving the government power to suppress criticism on grounds that it is false or misleading and dangerous.

Moreover, even if government is correct about the falsity and danger of the messages, it may underestimate the negative indirect consequences of suppres­sion. Suppression may impede valuable enterprises out of which the erroneous criticisms of government emerged: for example, the quests for social and natural scientific truth, or for moral and religious truth.^[363] Suppression may infantilize the population and stunt its moral and intellectual virtues (an essentially Millian point^[364]). Perhaps even more importantly, suppression is frequently ineffectual or worse. It may draw attention to and make martyrs of the dissenters, glamorizing and spreading rather than suppressing their ideas. It may drive criticism and dissent underground, which breeds resentment, alienation, and conspiracy. It is frequently better to allow dissent and know who the dissenters are than to suppress it and have dissent circulate in secrecy.

These are a few of the consequentialist arguments that can be marshaled against suppression of speech that might mislead audiences about the probity, justness, or wisdom of the government and its policies and induce the audience to commit harmful acts, ranging from subversion and criminality to replacing good governors with bad ones. Many of those arguments apply in some mea­sure to suppression of false or deceptive messages beyond those critical of the government, and even beyond politics. Thus, there are reasons not to suppress false and misleading scientific claims, religious claims, cultural claims, moral claims, and even medical claims and commercial claims.

One commentator has characterized the consequentialist considerations for freeing up some speech that might be suppressed because of two-step harms in the following way:

First, being able to speak our minds makes us feel good. True, we tailor our words to civility, persuasion, kindness, or other purposes, but that is our choice. Censors claim the right to purge other people’s talk - all the while insisting that it is for our own good.

Second, much censorship appears irrational and alarmist in retrospect because the reasons people choose and use words are vastly more interesting than the systems de­signed to limit them. It’s not hard to make a list of absurdities - I’m particularly fond of a rash of state laws that forbid the disparagement of agricultural products - but simplistic explanations and simple-minded responses are as dangerous as they are ditzy. In one of the few places that postmodern theory and common sense intersect, it is obvious that the meaning and perception of words regularly depend on such variables as speaker and spoken to, individual experience and shared history, and the setting, company, and spirit in which something is said. To give courts or other authorities the power to determine all this is, to put it mildly, mind-boggling.

Third, censorship is inimical to democracy. Cloaking ideas and information in secrecy encourages ignorance, corruption, demagoguery, a corrosive distrust of authority, and a historical memory resembling Swiss cheese.

Fourth, censorship backfires. Opinions, tastes, social values, and mores change over time and vary among people. Truth can be a protean thing. The earth’s rotation, its shape, the origins of humankind, and the nature of matter were all once widely understood to be something different from what we know today, yet those who challenged the prevailing faith were mocked and punished for their apostasy. Banning ideas in an attempt to make the world safe from doubt, disaffection, or disorder is limiting, especially for people whose lives are routinely limited, since the poor and politically weak are the censor’s first targets.

Finally, censorship doesn’t work. It doesn’t get rid of bad ideas or bad behavior. It usually doesn’t even get rid of bad words, and history has shown repeatedly that banning the unpalatable merely drives it underground. It could be argued that that’s just fine, that vitriolic or subversive speech, for example, shouldn’t dare to speak its name. But hateful ideas by another name - disguised as disinterested intellectual inquiry, or given a nose job like Ku Klux Klansman David Duke before he ran for governor of Louisiana - are probably more insidious than those that are clearly marginal.^[365]

There are many good reasons for governments not to regulate expression for the purpose of affecting messages, but that freedom of expression is a human right is not one of them.^[366] There is no human right of freedom of expression. Nor is there an indirect-consequentialist justification for a domain of freedom of ex­pression, whether with respect to Track One, Track Two, or Track Three laws, that is constant across time and place. Rather, there are indirect-consequentialist arguments that might justify the special treatment of expression, but that treat­ment will vary from place to place and from time to time. Justified rights regarding expression will always be limited, local, and based on hunches about consequences.^[367] That is not as grand and inspiring a basis for freedom of ex­pression as deeming it to be a human right. It does, however, have the virtue of realism.