Free Speech Absolutism: “Sunlight is the Best Disinfectant”

January 15, 2015

Just a week after the horrors in France, it seems clear that many of us have much to learn. France is punishing comedians for expressing points of view with which the government disagrees, and Pope Francis is defending the notion that speech which criticises religion should not be allowed . This is sad but hardly surprising. European attitudes about free speech have been for some time more restrictive than they ought to be, including laws that prevent “hate speech” or questioning the holocaust. In some commonwealth countries and in the tradition of the UK, laws prevent even truthful criticism of others that might “harm” their reputations (whereas defamation in the US requires the speech to be false to be defamatory, not necessarily so in the UK, Australia, and even Canada). In sum, the US experience with free speech is significantly different than elsewhere, and I believe that it serves as a better model for speech and its great power to change the world.

It is true that some speech can harm, and we have a moral duty as individuals to avoid harming others, but the harms caused by speech can be addressed in most instances with more speech. There are positive social forces available to punish those who abuse their speech and use it to harm. Public shaming and censure are perfectly appropriate tools available to us to punish those who have harassed or otherwise harmed others through abusing their speech rights. The law is a dangerous recourse, whether publicly or privately employed because the force of the state, backed by police and military, courts and jails, is significantly different than the force of public opinion. When states have the ability to drag people into courts for expressing their views, then censorship is likely. Unlike societal pressures, which do not have the power of police, courts, jails, etc., behind them as a method of suppression, states can impose specific ideologies through these mechanisms.  This is an unacceptable threat to freedom of inquiry. The power represented by a military or police is different in kind from the power of words whose target is minds and proper modes the employment of reasoned argument. That France is now using its police and judicial system to punish speakers is testament to the abuse of power for which the law affords opportunities and undue temptation.

Supreme Court Justice Louis Brandeis said “sunlight is the best disinfectant” and in my opinion, this is true. When we seek to suppress through state mechanisms speech which offends, or even that which harms, we drive further underground those who seek to do harm and perhaps push them toward committing worse harms, meanwhile we fail to publicly address the weakness of the arguments or cowardice of the characters of those who would harm others. Better to keep it in the open, show through our speech the errors or immorality of those who attempt or commit harm, and let the broader public as well as history sort out who is in the right. In the end, the best ideas do (generally) win, and the better arguments prevail. Censure, but don’t censor.