Free Speech and Consensus Mechanisms
In the wake of the Israel-Gaza war there’s been some renewed discussion about free speech. Matthew Yglesias made a piece discussing it that I thought was fairly good.
I generally hate arguments about free speech. Usually they’re proxy arguments about the underlying speech rather than arguments about principles. And arguments about the principles tend to fail to understand the point of the underlying principle and don’t have a broader conception about how society functions.
Ok, so what is the point of free speech?
The point of free speech as a constitutional principle is that you don’t want the government to be able to suppress speech unfriendly to it, which allow those in power to stay there undeservedly because correct anti-government arguments aren’t allowed to spread. The point of free speech as a social principle is largely two things, both put very well by Matthew Yglesias. The first:
The Israel-Palestine dispute is an excellent illustration of the general principle that it’s challenging to draw a bright line between passionate arguments about public policy and bigotry, especially when you incentivize people to make claims about the latter in order to shut down the former
The second:
It’s incredibly difficult for people to learn about anything — including why their presuppositions are wrong — if they are living in terror of being labeled a bigot for saying the “wrong” thing.
I think the constitutional protection of freedom of speech makes sense, though I would support a narrower version that just includes politically relevant speech (ie, the things a government would want to suppress to keep power). I think the two arguments for social free speech make sense too.
But I also think freedom of speech shouldn’t be absolute. I think you do too. The Supreme Court has laid out some exceptions to free speech despite none being written in the amendment. We also all seem ok with eg banning spam or death threats on Twitter (or IRL in many cases). And not only am I ok with these, I think having these exceptions is in fact quite necessary
You can come up with principled reasons for supporting these types of exceptions. But my question is, more mechanically, how do you ensure that exceptions to free speech are made in reasonable circumstances and not in unreasonable circumstances? Like, you can try to write down a list of reasonable circumstances. But what if you’re wrong about something? What if society changes to the point that one of your points is no longer accurate? You should have some mechanism for changing these rules, right?
This is where I think the concepts of supermajority and enduring majority that I wrote about for constitutional design come in. They are: holding a threshold of support that’s higher than 50% (supermajority) or holding (super)majority support for a long time (enduring majority). I claim that the only thing you can do is require supermajority/enduring majority approval for adding a category of banned speech or banning a certain piece of speech. There’s no other principled way to do it.
Let’s apply this to Israel-Palestine. The reason you have to protect pro-Palestine speech even when horrific is fundamentally that a lot of people are pro-Palestine, to the point where they think that speech is worth engaging with. The reason you have to protect pro-Israel speech even when horrific is fundamentally that a lot of people are pro-Israel, to the point where they think that speech is worth engaging with.
If almost everyone agrees that pro-Palestine speech is despicable and adds nothing of value, they will and should ban it, just as spam should be banned on Twitter. In that case the position that pro-Palestine speech should be banned would hold supermajority and enduring majority support.
This is why I feel so strongly about the concepts of supermajority and enduring majority. They are the glue that hold our society together. There’s really nothing else protecting against certain things besides a bunch of people opposing those things.