From the Belmont Club on the “anti-fascist” students who stormed the Oxford Union like a bunch of Nazi brownshirts.
Proposition: some persons and ideas are so reprehensible that even a society which espouses “free speech” cannot allow them expression.
On first thought I stood opposed.
Keep the pickpockets’ hands where I can see them, put things in context, allow those with new and valuable insights to persuade others, allow falsehoods to be exposed brutally, mercilessly, to the light of reason.
Then I asked myself if there were any speech I could posit that might need to be treated as a criminal act.
Suppose that a speaker rises in front of a high-school assembly and proceeds to give a simple explanation of how anyone, with common household items and no special skills, could create a bubonic plague/ rabies/ anthrax/ smallpox aerosol in five minutes. It is an idea. It is stupid and incredibly dangerous to give this talk. But at least in this case the speaker knows, more or less, the people to whom he speaks, and can estimate their future actions beforehand.
Now suppose that instead the speaker publishes his instructions on the internet with diagrams, quicktime demonstration, and links to suppliers. He can no longer predict the actions of readers. But is there really a difference when the speaker’s audience could have all blogged about the speech and put the information on the internet anyway?
I conclude from this that there are certain facts and procedures that should be kept secret as a matter of national security. Publishing or publicly exposing official secrets should be prevented, and punished if prevention doesn’t work.
Treason as defined in the US Constitution is a similar issue. I’ll get back to treason later.
There are other acts of speech that society should not tolerate: sedition; slander; libel; fraud; shouting fire in a theater. Now are these ideas to be expressed or are they hostile, harmful acts to be prevented and/or punished? They all cause measurable harm, while ordinary ideas do not. I conclude that, seeing as how most of them are already crimes under the statutes or constitution, harmful acts of speech can be criminalized.
I agree that there are criminally harmful objects and acts that should be forbidden. Certain scientific facts should be secret for national security purposes. Treason should not be allowed. Waging war against one’s own nation should not be allowed. Shouting fire in a theater, libel and slander should not be tolerated.
Let’s take the case of Treason: waging war against one’s own country or giving comfort to the enemy. Is an Idea War against the nation a type of war that should be subject to the same legal instruments as traditional war, including charges of treason? How about if there is no fighting between armies, and if there is no formal declaration of war?
Giving comfort to the enemy in a time of war is treason. But it is not in a time of peace, for in a time of peace there is no declared enemy. In a war fought without a formal declaration is treason meaningful? Certainly it does not seem to be possible to punish it in 2007 as even the most egregious exposure of national security secrets in national publications has not been punished by charges of treason. So there must be drawn a legal line in the sand to make treason a meaningful definition.
Is it the same for the definition of criminally harmful speech and action? Is criminal harm something that must be defined in legislation? I think it must. We know that any speech that is prohibited by legislation is speech that the sovereign of this nation (We the people) determined harmful. If legislation goes against the people’s God-given conscience then the people have the ability to repeal it. The sovereign people agreed with legislation defining harm when it was passed and they agree now, so the legal definition of harmful speech or action is satisfactory.
For the proposition itself I would draw the same sort of line between criminal and protected speech. I agree with the proposition concerning harmful speech that is criminal. But I do not agree when it comes to non-criminal speech. On balance I am forced to agree, but with misgivings. I realize this traps me in legalities. I realize that this line of reasoning would defend the Turkish government’s policy of prosecuting people for insulting Turkishness and could be used by people in favor of hate crime laws (which I think are ridiculous, as if the murderer never feels hate except against members of designated victim groups). What legality does is allow for the rule of law and the coherence of a single nation instead of its fracture into a balkanized mess.
What legality does not do is guarantee goodness and truth. That is up to the sovereign people in the exercise of their God-given conscience. And that is a different proposition entirely.
Nor does this respect of legality extend to laws that were not legislated but decreed from the bench or imposed by anonymous bureaucrats. Such illegitimate extension of the law must be prevented and punished vigorously, as it undermines the legitimate sovereignity of the nation and causes people to despise the law.
On balance, if the choice is between allowing criminality and punishing or preventing it, I’ll take sides against anarchy.
So as a requirement for the continuation of national existence, I would have to support the proposition as written.
Trackposted to The Virtuous Republic, Rosemary’s Thoughts, third world county, Blue Star Chronicles, The Pink Flamingo, Big Dog’s Weblog, Chuck Adkins, Right Voices, and The Yankee Sailor, thanks to Linkfest Haven Deluxe.