Limiting Free Speech (52): Government Compelled Speech

The human right to free speech protects people against compelled silence, but can and should it also protect them against compelled speech? I think in general the answer is yes. Free speech guarantees freedom, and freedom in any definition of the word should include both the freedom to do and not to do. Hence free speech rights include both the right to speak freely and the right to remain silent – or, in other words, the right not to be anyone’s coerced messenger. (In general, it’s true that a right to do something also includes a right not to do it. More here).

A sophist might reply: “Isn’t free speech about being allowed to speak your own mind? If so, wouldn’t that leave it open for the government to compel you to utter what is not on your mind, as long as this is not incompatible with what is on your mind?” Precious little of our freedom would be left if this were true. This kind of justification for coercion requires more than the statement that what people are coerced to say is not incompatible with the views of those who are coerced.

So, if we accept that free speech in general includes the right not to be compelled to speak, what about possible exceptions? Are there not some forms of compelled speech that are legitimate exceptions to free speech? Most of us (outside the US at least) have little trouble accepting health warnings on cigarette packaging. The same is true for legal requirements that fundraisers disclose their donors, or advertising rules mandating the display of the total fare – including taxes and fees – in bigger type than other fare information.

However, we can just as well cite examples of legally compelled speech that are much more troubling. Some states in the US requires doctors, under the rubric of “informed consent”, to warn abortion patients that the procedure places them at “increased risk of suicide”. Other US states issue car license plates with religious symbols or messages. I find this difficult to understand: those are two forms of compelled speech that are allowed under US law whereas warnings on cigarette packaging are not, even though the latter are obviously less troubling from a human rights point of view.

Perhaps the factual truth of the speech that is being compelled should determine whether or not the compelled speech is legitimate. In that case, cigarette warnings are OK, but the above cited abortion warning is not. Still, that’s not satisfactory: few of us would want to live in a state that compels us to say 1+1=2 before each meal. And what is truth anyway? Also, what about compelled messages that aren’t about truth, such as the pledge of allegiance?

A much better rule is the following: compelled speech is allowed only if it is necessary and effective in order to protect human rights. Cigarette warnings would still be OK (health is a human right), to the extent that they are necessary and effective (this is an empirical matter). Disclosure requirements for fundraisers would also be OK (democracy is also a human right), under the same conditions. Even false information could then be part of compelled speech, as long as it furthers the cause of rights: one can imagine a situation in which forcing someone to lie to a terrorist can save lives.

A final remark: compelled speech is not always compelled by the government. Someone distributing leaflets in a restaurant, giving the impression that the restaurant owner endorses the content of the leaflets, is also engaging in a form of compelled speech. This form is equally unacceptable, at least as long as the leaflets don’t serve an important human rights goal, and one that is important enough to override the right to free speech and the right to private property of the restaurant owner.

More about the right not to speak. More posts in this series.

What is Democracy? (52): Predictability or Uncertainty?

Why would this question be even remotely interesting? Well, I can see several reasons. Maybe not in the West but elsewhere in the world democracy is often rejected because it supposedly undermines predictability and hence economic performance. A strong central government that doesn’t have to worry about the next election is said to be more efficient, economically speaking, because it can apply long term planning. Talkative democracies with their frequent elections, rotation in office and often federal structures are simply unable to plan and are forced to pander to the short term interests of a lot of small groups because elections are at stake. Also, people seem to prefer predictability over uncertainty in general, not just because of the economy.

Let’s just bracket the question whether or not uncertainty is in general a bad thing, and whether or not we want to limit it (uncertainty is and always will be a fact of life so limiting it is all we could do if we decide that that is what we want). Those are not questions I’m particularly interested in since the answers can reasonably go both ways (planning can be good or bad, certainty can be comforting or stifling etc.). I’ll focus on the relationship between democracy and uncertainty. Is it true, as some authoritarians claim, that democracy promotes uncertainty? Yes, for some reasons, and no, for others.

There are indeed some forces that compel democratic politicians to favor the short term. Elections need to be won, and voters naturally value short term benefits more than long term benefits, even if these long term benefits are much larger (this is called time preference). They have some good reasons for this: maybe they think that they won’t be around in the long term (or that the probability of being around decreases when the time horizon is further in the future), or maybe they don’t believe in the long term: since life is unpredictable, especially in the long term, it’s better to count on short term benefits, even if they are small in comparison, than on large but unlikely long term benefits. If that is how voters think, then they will favor politicians who focus on the short term. Democracy therefore exacerbates life’s inherent unpredictability.

Also, voters are correct in thinking that politicians have more power over the short term than over the long term, which is another reason to favor politicians who promise short term benefits. This “short-termism” may be misguided for other reasons – especially when the short term benefits are detrimental to long term benefits (e.g. driving SUVs) – but it’s indeed to some extent a fact of life in a democracy, and one which, by definition, produces uncertainty because it makes long term planning very difficult if not impossible.

It’s also true that some non-democracies have proven themselves to be better long term planners, although most non-democracies have been short term kleptocracies that ruined their national economies. Dictatorships have also shown that long term planning doesn’t need to be benevolent: the long term planning they engaged in mostly focused on the long term survival of the ruling class, not the long term benefits of the people or of business. Predictability then means eliminating opposition and dissent. And even if prosperity is the motivation, the result is often the destruction of freedom.

Another reason why democracies are particularly unpredictable is the game of action and reaction. In a democracy, the majority has to take into account reactions of the minority and reactions of a future majority. (Democratic minorities have some power, e.g. their rights cannot be violated by the will of the majority). When people react to what you’re doing, you can never be certain that the actual consequences of your actions correspond to the imagined ones. A carpenter working in isolation can be quite sure that the table he’s making will look a lot like the one he imagined. A democratic politician will most often see things happening quite differently from the way he or she expected them to happen. The plurality of a democracy means that many different kinds of reactions can interfere with actions. As a result, there’s unpredictability. Goals will not be achieved exactly the way they were intended, or will not even be achieved at all.

A democracy does not try to suppress or eliminate reactions and contradictions. It tries to ritualize them, soften them and take the violence out of them, but it needs them. It needs conflicts, opposition, criticism, plurality, rotation etc. Democracy is a game of action and reaction that is institutionalized and accepted as an inevitable fact of life in a community with different people and different goals. It cannot exist without events initiated by some and reacted upon by others. Hence democrats embrace uncertainty and unpredictability, however unpopular this may be. They don’t accept that there is necessarily a purpose, a clear plan unfolding in history, an evolution toward a certain goal, a plan or a process that can be known in advance and implemented in a predictable way. They are weary of planning because they don’t believe that planners can have the necessary knowledge to plan and because of the tyrannical nature of planning: planning has to result in the exclusion of reaction.

However, let’s not exaggerate. Non-democracies can also be quite unpredictable, and beside the fact that short-termism isn’t an exclusively democratic vice there are other things that disprove the claim that democracy is especially bad for certainty and predictability. Democracies are rule based, and much more so than dictatorships. They favor the rule of law, which means that public policy is much less impacted by changing individuals. Governments can only do what the laws allow them to do, and their actions are therefore much more predictable. You could say: so what, they can always change the laws. True, but only within the confines of a constitution which is incredibly hard to alter. Judges in a democracy have the power of judicial review and can undo acts of legislation that violate the fundamental rules of a democracy.

This “hard-coding” of the constitution shows that a democracy, like any form of government, wants to be certain of its survival. In that sense, it needs predictability, but not predictability of policy. A democracy tries to eliminate only anti-democratic reaction and opposition, not opposition to policy. An entrenched constitution is one way it does this; asking people to promise respect for it is another way. Promises produce some certainty, a certainty and predictability based on freedom. Promises imply freedom, because a promise is only valid if it is voluntary. This kind of certainty is therefore radically different from certainty produced by the elimination of reaction. In a tyranny, everybody is certain – to some extent – that the regime will survive because nobody can or dares to react, or because indoctrination and propaganda have conditioned people in such a way that they do not even contemplate reaction. In a democracy, there is relative certainty because enough people keep their promise to respect the regime, and because there are institutions enforcing respect for the basic rules. Those promises are the rationale behind the so-called “pledge of allegiance“.

Of course, this does not mean that everything in a democracy is free and voluntary. There has to be some coercion because some people will not make or keep the necessary promises. There will be coercion, not of promises, but of reactions. Promises cannot be coerced. Anti-democratic reaction is the only type of reaction that is eliminated in a democracy. Every other kind of reaction is cultivated.

An anti-democratic reaction is somewhat of a contradiction in terms. It is because of democracy that reaction is possible: democracy softens and hence promotes reaction. If reaction becomes an activity without risk, as is the case in a democracy, then reaction blossoms. Reacting against democracy is not only ungrateful, it is self-destructive.

But apart from this predictability of the institutions necessary for unpredictable political life, it is clear that the focus of democracy is on conflict, contradictions, opposition, reactions, unpredictability and uncertainty. Freedom does not always go hand in hand with control, although on an individual level this may be the rule. An individual is free if he controls his life. But a society is not free if people try to control consequences and the future. Unpredictability does not mean that people are not free to choose their future. They are just not certain that the future will be the one they have chosen.

The freedom to react disappears when politicians want to be certain of their goals. They want to be like a lone craftsman who makes a product without much interference from other people and other goals. Society is in need of a blueprint and a makeover. Reality has to be made in order to conform to the plan or the model. It is no longer the uncertain and unpredictable result of human action and reaction but the product of a plan and of the concerted efforts to realize it. Freedom is replaced by the execution of a plan and of the orders of those who best know the plan and the means to realize it. (Arendt was one of the first to make this argument).

Politics becomes a goal producer, and is no longer the platform on which different goals can be shown, can interact and can fight peacefully for supremacy. People become a means for the realization of the plan, instruments or material for the creation of society. And if they are resistant material they are forced into line, or perhaps they are even “waste”. In any case, the application of force to the materials is necessary in order to shape them. If you want to create society, you have no other means but people. People will have to be transformed. Their thinking has to be conditioned by way of education, propaganda, indoctrination, punishment, forced labor or genetic manipulation. Perhaps even selective abortion, euthanasia or simply extermination. Some materials do not allow transformation or improvement.

However, it is far from certain that the elimination of reaction is possible. It may be counterproductive and create more reaction than initially anticipated. Plurality is probably unavoidable, and therefore uncertainty as well.

More on the future here and here. More on democracy here.