Moral Standards and Legal Enforcement: The Debate on Free Speech, Continued

There are moral standards applicable to all forms of human behavior, including speech, but neither the existence of such standards nor even our acknowledgement of them entails that government should enforce them. Whether the government should enforce a given standard depends on the likely effects of such enforcement, and the sad history of censorship shows that empowering the government to suppress “immoral” or “offensive” speech is highly susceptible of abuse and results in serious violations of the rights we all have to engage in good speech and hear the good speech of others. Giving this power to government is wrong for the same reason that giving alcohol and automobiles to teenage boys is wrong.

My good friend Hadley Arkes takes issue with my recent piece on freedom of speech, arguing that, without intending it, I am adopting a de facto moral relativism. Arkes is always extremely generous to me, most of all when I am disagreeing with him, which is a testament to his largeness of mind and kindness of spirit. I know, therefore, that he will not take it amiss if I explain why I continue to disagree with him on this matter.

My argument for freedom of speech is straightforward. Some ideas are true and good and others are false and evil. However, if the government is empowered to decide, on the basis of their truth or goodness, which ideas may be expressed and which suppressed, the decisions applying the relevant standards must be made by particular human beings, who are always fallible and sometimes malicious. The people making the decisions, therefore, will make a lot of mistakes. Worse, their mistakes will not be randomly distributed across viewpoints but will skew in favor of permitting the expression of ideas with which they agree and suppressing those with which they disagree.

Empowering the government to regulate speech on the basis of viewpoint thus does not result in a world in which good ideas may be expressed and bad ones may not; it results in a world in which ideas congenial to those in power may be expressed and other ideas sometimes may—and sometimes may not—be expressed, regardless of their actual merit. The sad history of censorship makes this practically certain. Censorship always results in some good speech being suppressed. Although there are real costs to allowing bad speech, the costs of suppressing good speech are much greater. Everyone is better off in the long run, therefore, if we suffer the costs of allowing bad speech to ensure that good speech is heard. Arkes describes this argument as “an ingenious new strategy” for defending freedom of speech, but the argument is actually very old. Versions of it appear in Holmes and Mill, and it has roots in Milton.

Does this argument involve us in “forgoing any claim to have standards of moral judgment when it comes to judging speech as rightful or assaulting, legitimate or illegitimate”? If anyone less than Hadley Arkes suggested this, the question would answer itself. But even with the authority of Arkes on the other side, it is clear that, although there certainly are objective moral standards determining which speech is good and which bad, neither the existence of such standards nor our embracing them requires empowering the government to enforce them. A moral standard is one thing; government enforcement of that standard is another. That’s why some immoral conduct is legal even though it’s immoral.

We should forgive those who trespass against us, but after I treat you badly and sincerely apologize, you refuse to forgive me. You thus violate this principle and do wrong. May I sue you for forgiveness under the Trespass Forgiveness Act of 1934? No, because there is no such act. Nor is there any other law requiring people to forgive those who wrong them. The same is true for the moral standards about honoring parents, being patient with children, and giving to the poor. The law’s failure to enforce these standards does not mean that we deny their existence or binding force on us, or that we cannot appeal to them in other contexts. Even though the law does not enforce them, almost everyone acknowledges these standards and makes moral judgments in accordance with them all the time.

Indeed, in every area of law, there are relevant moral standards that the law does not enforce. We are morally required to take care not to harm the person or property of others. The law of torts, however, does not punish people who are careless, unless their carelessness actually causes harm to others. Again, standards of justice apply to business transactions. Nevertheless, the law of contracts, which governs such transactions, does not make contracts unenforceable merely because they are unjust (lawyers know this as the doctrine of consideration). Tellingly, gratuitous promises, which are not contracts since contracts require a quid pro quo, are enforceable at law to the extent justice requires (this is the doctrine of promissory estoppel). Here, the law incorporates the relevant moral standard, but in the usual case of quid pro quo contracts it does not. Similarly, criminal law punishes serious moral wrongdoing, but some of the gravest forms of wrongdoing are not crimes—e.g., abandoning one’s family to paint landscapes in Bimini. No one, including Arkes, thinks that the law’s failing to enforce these moral standards means we are implicitly adopting moral relativism regarding the underlying issues.

Why does the law so often fail to enforce moral standards? There are many reasons, including the moral value of freedom. In many cases, however, the reason is that moral standards are not self-executing but have to be applied by human beings—judges, juries, regulators—who will apply them imperfectly. Sometimes, the probability and gravity of errors are so great that intervention will foreseeably make things worse; in those cases, intervention is unjustifiable. In some cases, the foreseeable effects of intervention would be so bad that intervention would be immoral. In those cases, enforcing moral standards by law is morally wrong.

Consider childrearing. Parents are morally obligated to do what’s best for their children, but the law does not enforce this standard. Why not? Because most parents love their children and usually try to do what’s best for them. If government functionaries—who do not love the child in question as a parent does and who lack much of the relevant information—were empowered to second-guess every decision that parents make, they would occasionally correct a bad decision. More often than not, however, they would mistakenly reverse a good decision in order to enforce a bad one. Implementing such a system is not just imprudent but morally wrong because (among other reasons) it foreseeably harms the innocent without producing countervailing benefits that could justify such harms. For this reason, we severely restrict the government’s ability to interfere with parenting and allow it to intervene only in the most egregious cases—e.g., cases of abuse or endangerment—where intervention is likely to improve things rather than make them worse.

Freedom of speech is similar. There are moral standards about which speech is good and which bad, and people have a moral right both to engage in good speech and to hear the good speech of others. Still, no matter how well-intentioned, a system empowering the government to apply general moral standards to allow good speech and suppress bad speech will foreseeably result in significant violations of these rights. The countervailing benefits, which come in the form of bad speech suppressed, are real but too small to justify, from a moral point of view, the inevitable violations of the rights of the innocent.

As with childrearing, we limit the government’s enforcement powers related to speech to extreme cases. Fraud, incitement, and obscenity may be prohibited under the First Amendment, because they involve standards that courts can apply reliably—that is, with low error rates unlikely to skew much by viewpoint. Unlike a general ban on “offensive” or “immoral” speech, enforcement in these special cases is likely to do more good than harm.

Arkes complains that instead of “a defense of moral principle,” I am offering “a set of utilitarian guesses” about what kinds of laws produce the best effects in the long run. Here, my good friend’s normally subtle moral sense has failed him. The likely consequences of an action are manifestly relevant to determining its moral quality, and obviously some actions are so likely to hurt the innocent without producing corresponding benefits that they are morally wrong. When I argue that implementing a system of censorship falls into this class, I am clearly making a moral argument.

Why, then, does Arkes think that my view—which is largely shared by both judges and legal scholars—entails relativism? The answer is Cohen v. California from 1971. California had prosecuted Cohen for wearing in public a jacket inscribed with the words, “F__ the Draft.” In overturning his conviction on First Amendment grounds, the Supreme Court stated that “one’s man vulgarity is another’s lyric.” On this basis, Arkes concludes, the Court “proclaimed the doctrine of relativism.” Arkes then reads most later free-speech cases in light of this interpretation of Cohen.

But the case does not say what Arkes thinks it says. Cohen had been charged under a statute prohibiting “offensive conduct” that “disturbed the peace or quiet” of any person. Responding to California’s argument that it is constitutional for a state to prohibit “offensive” speech in any public place, the Court said,

The principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

The Court was thus not saying that there is no principled distinction between offensive and non-offensive speech (“matters of taste and style”). It was saying—indeed, expressly said—that there are no “readily ascertainable” principles of this kind, which means that “governmental officials cannot make principled distinctions” about which speech is offensive and which not (emphases added). In other words, the Court was not denying the existence of the relevant moral principles but was saying that governmental officials could not apply those principles in a predictable—and thus fair—manner. As Justice Alito put it in Iancu v. Brunetti, “Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate ends.”

There is no doubt that this is what the Court meant, because it deliberately contrasted the section of the statute prohibiting “offensive” speech with another section of the same statute that prohibited “vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner.” That section, the Court suggested, was constitutional because, unlike the section under which Cohen was charged, that section “serves to put the actor on much fairer notice as to what is prohibited.” Like so many other free speech cases, Cohen denied not the existence of moral standards but the propriety of empowering government officials to enforce a particular standard that would foreseeably result in a high error rate and be susceptible to abuse by officials seeking to suppress unpopular ideas. Enforcing a slightly different standard that would have a lower error rate and be less susceptible to abuse would be constitutional.

Finally, Arkes suggests that my argument is all about protecting conservatives. That is, because progressives are increasingly attempting to silence conservatives (especially on college campuses), empowering the government to suppress bad ideas would likely result in progressives hijacking the system and suppressing the legitimate speech of conservatives. This fear is abundantly justified by the endless examples of European nations using “hate speech” laws to silence conservatives, and so I do indeed believe that it is in the interest of conservatives to support strong protections for free speech. Arkes believes such protections will prove to be paper barriers, but the facts are against him here: conservatives routinely win free-speech cases against public universities.

Regardless, however, Arkes has misunderstood my argument. My argument is not a parochial one about what is best for conservatives in current circumstances but a principled one about the moral limits on the power of government in almost any circumstances. I would favor freedom of speech even if traditional Catholics like Arkes and me ruled the roost; indeed, I would favor it especially in those circumstances, since the historical record of Catholics regulating speech when they had the power to do so is particularly disedifying. In my view, the power to decide which speech may be heard is a power with which no one may safely be trusted, and that is why it is morally wrong to confer that power on anyone.

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