Internet Scofflaw

Ken White makes an interesting argument about censorship. It’s thoughtful, but ultimately dead wrong. Let me excerpt the start of it:

1. The First Amendment protects you from government sanction, either directly (by criminal prosecution) or indirectly (when someone uses the government’s laws and the courts to punish you, as in a defamation action). It is currently in vogue to exclaim “NOBODY IS ARGUING OTHERWISE” when someone makes this point. [Expletive.] People are consistently saying that private action (like criticism, or firings) violates the First Amendment, either directly or through sloppy implication. . .

2. The phrase “the spirit of the First Amendment” often signals approaching nonsense. So, regrettably, does the phrase “free speech” when uncoupled from constitutional free speech principles.

(This is all in the context of the A&E network’s brief cancellation of Duck Dynasty last year when it turned out that the Robertson family patriarch disapproved of sodomy.)

In regard to #1, he has a point. People often say “my First Amendment rights are being violated” when what they really mean is “I am being censored.” Some people with a weaker understanding of civics may actually be confused on this point, but most I think are just speaking sloppily.

But White goes wrong in #2. I’ve never heard the phrase “spirit of the First Amendment” used, and when I google it, the first hit is to a Cato Institute article that is clearly talking about government censorship, so let’s skip that point and move on to his next one: that “free speech” is nonsense when uncoupled from constitutional principles.

He is wrong on two levels. The first is legal. The First Amendment reads (in relevant part):

Congress shall make no law . . . abridging the freedom of speech. . .

Note the wording: “the freedom of speech”. The freedom of speech already existed in English law, and the First Amendment merely writes it explicitly into the US Constitution. (It’s a pity the English never did that!) It’s manifestly untrue that free speech is meaningless apart from the Constitution.

I think White would say that he already knew that, and was writing sloppily. But more substantially, he’s wrong a a philosophical level. White believes that free speech is coextensive with the First Amendment, but I think most Americans understand otherwise. Certainly I do. We ought not to conflate free speech with the First Amendment, because free speech is much broader than the First Amendment.

The First Amendment (together with the 14th) protect us from government censorship, but that doesn’t mean that government censorship is the only kind. So what is censorship?

Let’s go back to White’s straw man:

These terms [that is, “spirit of the First Amendment” and “free speech”] often smuggle unprincipled and internally inconsistent concepts — like the doctrine of the Preferred+ First Speaker. The doctrine of the Preferred First Speaker holds that when Person A speaks, listeners B, C, and D should refrain from their full range of constitutionally protected expression to preserve the ability of Person A to speak without fear of non-governmental consequences that Person A doesn’t like.

I haven’t heard of this doctrine, and the first four pages of google hits all refer to White’s article or derivatives of it (or are random junk), but I’ll assume that it’s a real, obscure legal concept, and not something that White just made up. Anyway, I don’t think that’s what “free speech” means.

I think free speech means this: If person A wants to communicate with person B, who is willing to receive the communication, it is wrong for person C, a third party uninvolved in the communication, to interfere.

This is just a first-cut; it may need some refinement (national security, juveniles, crowded theaters, etc.), but I think it works pretty well. If Alice asks Charlie to carry a message to Bob, Bob has every right to refuse. But if Alice is speaking to Bob, Charlie has no right to stop her. Similarly, if David agrees to carry a message from Alice to Bob, it is wrong for Charlie to stop him.

This applies whether or not Charlie is the government. If Charlie is the government, the First Amendment applies. If Charlie is just an ordinary busybody, Alice doesn’t have any First Amendment protection, but it’s still wrong for Charlie to interfere with her speech.

That’s what was going on in the Duck Dynasty affair. Phil Robertson critics were trying to censor him; they had no part in his communication with Duck Dynasty’s audience. On the other hand, A&E was involved, so they had a right to cancel his program. (If the audience dwindles, they surely will.) Nevertheless, by doing so in that situation, they were knuckling under to censorship. As Americans they should have done better.

(Via Patterico.)