The Bill of Rights

The ink was barely dry on the Bill of Rights when the U.S. Congress began attempting to restrict speech it might disagree with. 

In 1798, the Alien and Sedition Acts attempted to criminalize dissent against the Federalist-controlled government. It threatened fines and prison sentences for those who would “write, print, utter or publish … any false, scandalous and malicious writing or writings against the government of the United States (or Congress, or the President).” 

That law was primarily used to prosecute editors of Democratic-Republican newspapers and led to Thomas Jefferson’s Virginia and Kentucky Resolutions, seeking to nullify a clearly politically-motivated, unconstitutional law. 

How can you tell it was politically-motivated? Its sunset was March 3, 1801 - the date prior to the inauguration of the next president. 

In terms of allowing the Federalists to keep power, it didn’t work - Thomas Jefferson was elected president, and the Democratic-Republicans swept into control of both houses of Congress. But the desire to censor speech inconvenient to the government has continued - through Woodrow Wilson’s use of the Espionage and Sedition Acts to imprison those who opposed American involvement in World War I to the internment of Japanese-Americans during World War II to the modern desire to regulate “misinformation” and online content. 

While communications technology has changed - nobody could have foreseen television or radio, much less instant mass communication via social media in the 18th century - the basic principle of the First Amendment remains. Government should not restrict speech or the free press. The reason why is articulated by John Stuart Mill in his 1859 essay “On Liberty.” 

Yes, there are bad ideas out there. There are wrong ideas in the public discourse. There are people who don’t do a great job of discerning between the bad and good ideas, or truth and falsehood. But the best way to sort those ideas out is through the marketplace of ideas, not through censorship. 

As Mill wrote, “The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

Silencing that which is perceived as “misinformation” prevents those ideas from being discussed in the marketplace of ideas. No entity has the right to silence speech. Even if silencing said speech is popular, the act of doing so is highly noxious. 

“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind,” Mill wrote. 

One of the critical pieces of the liberal project is the importance of the exchange of ideas. Once-unpopular ideas are now mainstream because they were allowed to be entered into that exchange. Advances in society - from women’s rights to LGBTQ+ rights to the end of prohibition - came through those ideas being spread through the culture and later adopted by the citizenry. Political changes often reflect changes that have already happened through the culture. 

Who determines what is misinformation, and under what grounds do they have to censor? Often, those most fervent about silencing misinformation in government define it as “information or opinions that run counter to what I want to be the prevailing narrative,” even if that information has a basis in fact. 

Foreshadowing the modern discussion of disinformation and debates over who should have oversight over social media, Mill writes, “We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.” 

Humans are fallible. Nobody is all-knowing. When we let good and bad ideas get a hearing, we can ferret out the bad ideas. While Mill was not writing in an era of social media, his words certainly ring true now, as the forum where ideas can be presented, debated and discussed has now changed. 

It is no surprise that one of the first things authoritarians do when taking over a government is to seize and control the press and to jail dissidents. But, as we have seen in the United States and elsewhere, that can happen in democratic societies, where those in power seek to hold it. 

Adam Smith made this point in “The Wealth of Nations” about the state directing economic matters, but it’s also relevant to the discussion of free speech - that those who seek to have power over others should not be trusted, writing, “the statesman, who should attempt to direct private people in what manner they ought to employ their capitals, would not only load himself with a most unnecessary attention, but assume an authority which could safely be trusted, not only to no single person, but to no council or senate whatever, and which would nowhere be so dangerous as in the hands of a man who had folly and presumption enough to fancy himself fit to exercise it.” 

When the state - or even the culture - prevents certain viewpoints from being brought to the marketplace, a chilling effect on speech happens and groupthink results.. Mill also foreshadowed the modern version of “cancel culture” - which we see from multiple political stripes. In one survey, 52% of college students are afraid to express views on politics in the classroom. (). That stifling has a chilling effect on speech, and as a result, the market place of ideas.

It is vital to know multiple sides of an argument. You need to know what you are refuting. This is where economics knowledge comes in - the understanding of tradeoffs. This is why politicians who try to present a position as “truth” with no drawbacks are so frustrating. They ignore the unintended consequences and the trade-offs. 

Being able to argue our points helps keep the other in bounds. It’s when we have the “echo chamber” effect and disregard the arguments of the other party that we tend to ‘otherize’ viewpoints and people who otherwise hold rational - and possibly true - views and this is where we tend to slide to utopia. One thing people who are dogmatic, whether it be a political point of view or a religious one, hold is they have zero tolerance for dissent or opposing points of view. We need opposing points of view to smooth out our rough edges and help us sharpen our arguments and see the trade-offs and drawbacks. 

Debate helps us reject bad ideas and embrace good ones, which is why ideologues fear the introduction of opposing viewpoints so greatly - ideas that run in opposition to theirs might take root and upset the apple cart. But open debate is necessary for a good society.  Mill stated there is often a party of “order and stability” and a “party of progress or reform” and both are necessary for healthy political life - however, they need to rely on each other and not silence the other. “Each of these modes of thinking derives its utility from the deficiencies of the other; but it is in a great measure the opposition of the other that keeps each within the limits of reason and sanity.” 

Healthy debate requires knowing the opposite side, so one can refute it. 

The proper position, then, is not censorship of “misinformation” or “dangerous ideas” or “cancel culture.” It is to allow good and bad ideas to flourish. Mill wrote in a time when mass media was a newspaper and there was no radio, television, Internet nor social media to spread ideas and influence people. But the principles of free speech and the marketplace of ideas will always be paramount, no matter the medium.