What is Freedom of Speech Really?

Why is freedom of speech such an important topic, especially now? Because, of course, it is under assault. There is a false premise that freedom of speech must be balanced against public safety and individual security which, unfortunately, most people seem to accept. Freedom of speech comes from a surprising source, and when you understand what that source is, the confusions and distortions of freedom of speech promoted by both well-meaning and evil people become very clear.

Examples of free speech restrictions:

• University of Iowa art professor installs a statue of a figure dressed in a robe and hood reminding the viewer of the KKK, the figure is covered with a collage of newspaper headlines and images of racial violence. Some students objected, saying there was "no room for divisive, insensitive, and intolerant displays.” The UI president agreed and apologized to students who felt “terrorized” by the artwork.
• Modesto Junior College stops a student from distributing copies of the Constitution on Constitution Day. You see, he did this in a place other than the college’s designated “free speech zone” a tiny concrete slab big enough for two people. (Um, America is a free speech zone.)
• Brandeis University declares a professor guilty of “racial harassment” for explaining the origin of the term “wetbacks” in class while criticizing its use.
• The University of Oklahoma expels two students who were members of an SAE fraternity for a racist rant made on a bus, which was captured on video.

Perhaps the most important thing about the freedom of speech, before getting into what it is and where it comes from is this: It means literally nothing, it is of no significance at all, to allow speech you agree with.  It is no sign of enlightenment to permit uncontroversial or agreeable speech. Similarly, it’s no sign of enlightenment for the state to allow speech that the state agrees with. What IS enlightened, what is meaningful is allowing speech that is disagreeable.  If the state does not permit speech that is disagreeable to it, what does that make the state? Tyrannical.

Another important point that most people should understand but I doubt they do, is that citizens of the United States do not have freedom of speech because the Constitution grants it. The US Constitution does contain an Amendment (the First) which is supposed to protect freedom of speech. The text of that Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(By the way, note what the Constitution doesn’t say.  It doesn’t say that the people have the right to freedom of speech. It says Congress shall make no law abridging the freedom of speech. It doesn’t prevent state or local governments from doing that.)

Your freedom of speech comes from the fact that you were born with natural rights, which include the right to life, the right to liberty, and the right to acquire property through honest means. The Constitution or any random law for that matter, could state the exact opposite, that certain speech is unlawful, or that your speech must be approved in advance by the state—it wouldn’t matter at all, you would still have freedom of speech stemming from your natural rights.

Freedom of speech as a property right. Freedom of speech, however, isn’t a stand-alone right, in the sense that you can say anything you like simply because you have freedom of speech as a natural right. That’s not where freedom of speech comes from. Your right to free speech stems from your right to property.

Very few people see freedom of speech in this way. That’s why there is so much confusion and misunderstanding when it comes to speech that should and should not be allowed. For example, we take as given that you must not shout “Fire!” falsely in a crowded theater. No one disputes this restriction, though most people incorrectly believe this is a case of striking a balance between the right to free speech and public safety. That is, in order to gain an element of public safety—avoiding being trampled to death for no good reason—we are told that we need to accept a minor reduction to our freedom of speech. And the frequent calls for “hate speech” legislation—another reasonable-sounding limitation of speech in exchange for greater social harmony—are also about this non-existent “balance” of multiple, competing, “freedoms”. Here is a good example, from an editorial in the Harvard Crimson entitled “Why Harvard’s Hate Speech Policies are Necessary”:

“Our nation is obsessed with the concept of freedom. The majority of U.S. citizens seem to think of theirs as the freest of all countries, and any perceived attack on this freedom is seen as a sacrilegious desecration of the Constitution, America’s holy book. However, laws, including those in the Bill of Rights, exist for a reason—to protect citizens. The provision of freedom of speech serves, accordingly, to protect people from being punished for their ideas and beliefs. However, this freedom can backfire and end up punishing people not for their ideas but for their identities when hate speech comes into play. There must be a carefully thought-out balance between freedoms and restrictions of speech in order to create a society where citizens not only feel free to express themselves, but also are free from fear and violence.

….

“There are freedoms to do things, and there are freedoms from things. When our freedom to speak our mind impinges on someone’s freedom from fear, or on someone’s right to feel safe in their community, then that freedom should not stand unregulated in any group that wishes to create a safe and respectful society for its members. We cannot create a respectful learning environment at our university if students from marginalized groups feel that their administration condones acts of violence against them. University regulations against hate speech are entirely necessary for maintaining respect and dignity among the student body, and Harvard’s policies to this end are well thought-out and fair—and certainly not worthy of protest.”

The only way this sounds reasonable is if you accept the premise that people have the right to “freedom from fear” or have a right “to feel safe in their community”. This is the “balance” argument in practice. It’s an argument that the right to freedom of speech and the “right to safety” are on an equal footing. It’s true that someone who assaults you physically has no right to do so, and you are completely justified in defending your person. But speech is not physical assault. Trading free speech for feeling safe misunderstands the source of freedom of speech. But when freedom of speech is viewed as stemming from property rights, this confusion and misunderstanding go away. 

Freedom of speech on my property. Let me explain. On my own property, I can obviously (at least I hope this is obvious) say or write whatever I like. I am, of course, responsible for my speech—if I falsely accuse someone of a crime, or reprehensible behavior, he can seek redress in the courts. (A more consistent world would tell him to buzz off—I own my thoughts about you. If you think I’m wrong, say so. The remedy to disagreeable speech is more speech.) But in general, I’m free to say whatever I like on my property. If I’m standing on your property, I cannot. After all, in what meaningful way would it be your property if I can come onto it and say whatever I like? You rightfully control what happens on your property, just as you are held responsible for what happens there. Let’s return to the famous example of shouting “Fire!” falsely in a movie theater. This is not a matter of exchanging liberty for safety. It’s a matter of property rights. The owner of the theater forbids me and anyone else from disturbing the peace in his theater, and rightfully so, as the theater owner is obligated to his paying customers to provide a peaceful environment in which they can enjoy the movie. Isn’t this more sensible and clear than a nebulous and subjective exchange of liberty for safety? This is a distinction with a real difference.

(By the way, the Harvard U editorialist would have been on firmer ground had he argued that free speech restrictions on campus were Harvard’s right to enact as a property owner. But Harvard accepts money looted from taxpayers, so that dodge is tainted by the school’s participation in the theft of taxation.)

If I have a right to say whatever I like on my property, can I shout loudly enough for you to hear me from your property? Can I do so in the middle of the night? Can I amplify my voice with loudspeakers so that you can hear me from a distance? Or do you have a “right to quiet” that trumps my freedom of speech? Similarly, can I put up large billboards, bright neon signs, or even the giant TV scoreboards you see in a sports stadium, to communicate my speech loudly in a visual way?

No license to coerce. In analyzing this case it is important to understand that the right to property includes the right to enter into agreements, contracts and exchanges with other owners of property. It excludes theft, coercion, or fraud. Coercion, the use of force, comes into play here. Speech that you cannot avoid hearing from your property is a form of coercion. My loud speech is coercive because it violates your property rights. The same would be true of large billboards, bright signs or TV displays, taking into account the fact that the sense of sight is somewhat more selective than the sense of hearing—you can look the other way, but you can’t “hear the other way”.

I can’t just fling my loud speech into the sky and forget about it. Although I have freedom of speech on my property, I’m also responsible for the consequences of my speech. If my speech takes the form of a coercive auditory or visual assault, clearly disruptive due to volume, brightness or time of night, my speech is improperly disrupting your property rights.

If I want, I can start a newspaper, a TV station, a radio station, or an Internet site, or I can purchase print space or air time in existing forums owned by others. I could rent time in a local auditorium and give a speech. This way I can distribute my speech to anyone who cares to read, watch, or listen. Or I can print pamphlets and stand on my property, or yours with your consent, handing out copies of my speech to passers-by. It’s their choice to take a copy or decline. I should refrain from slipping a pamphlet under your car’s windshield wiper without your consent, just as I shouldn’t tape one to your home’s front door, or put one in your mailbox.  These items are not my property, so I shouldn’t tamper with them without the owner’s consent.

Money as speech. The debate about whether “money is speech” when it comes to donating to political campaigns is thrown into new, and clarifying light once free speech is understood properly as stemming from property rights. In an absolute sense, your money is your property, so you should be free to do whatever you wish with it. But rich people will buy political power, you say. (Or less rich people will pool their money and buy power as a group.) There are two solutions to this problem. One assumes the state existing as it does today, huge, sovereign, and having enormous power over the lives of the citizenry. The solution in this “leviathan state” environment is to allow open contributions coupled with full public disclosure of the contributing individuals or entities, how much they contributed, and to whom. Let voters decide how important “money in politics” is, and whether a candidate is being bought through specific contributions. The other solution is to drastically reduce the power of the state, or better yet, eliminate the state entirely. If gaining control of state power through financial influence results in little or no meaningful power, contributions would be minimal or disappear entirely.

Speech on Public Property. When freedom of speech is seen correctly as a right stemming from the right to property, the cloudiness surrounding freedom of speech immediately clarifies when committed on or using private property, by the owner or with the owner’s consent. But what about public property?

Freedom of speech on public property is a complex matter, because ownership of public property is problematic. In one sense, every citizen of the state owns the property, but shared ownership is a problem if two or more owners disagree about a particular speech or speaker. Although there is an obvious solution (no speech restrictions on public property), the state, which claims ownership of such property, and therefore jurisdiction over what happens there, usually insists on creating laws controlling public speech. And although some people think representative government is some kind of magic elixir that keeps governments from running amok and doing disagreeable things, no matter who creates laws limiting speech or how they do it, the results are generally disagreeable.

One problem with speech on public property is that the state creates laws that prohibit a person’s speech for improper reasons. In order to enforce its public speech laws, the state requires public speakers to obtain permits in advance. Suppose a person plans to air grievances against the state or its officials, or discuss the replacement or abolishment of the state. Officials of the state are likely to disagree with the content of this speech, and are therefore inclined to use their power to censor the speech, by altering its content, by forcing the time or place to be inconvenient or disagreeable, or by prohibiting it altogether. Fortunately in some jurisdictions the laws on public speech prevent state officials from censoring speech based on content. State officials are only allowed to intervene where the state has a compelling interest. For example, the state may have a compelling interest to prevent a street demonstration during rush hour traffic. But laws constraining state officials can only go so far. Officials often choose to ignore them, and some states fail to notice or choose to ignore their transgressions (as do many voters, unfortunately).

Another problem with speech on public property is that even a popularly-elected body of representatives may erect speech laws (or other laws) with which some, or even many, citizens disagree. However the representation is set up, if a given representative speaks for two or more citizens, he is misrepresenting at least one of them, unless they all agree exactly with each other on a given issue. Over the course of time, even if all agree on some issues, eventually an issue will surface where they do not. This lack of consent from all of the governed is obviously worsened with fewer representatives, and is worst of all in the case of a single ruler.

Given that the problems with state control of public speech on public property simply do not occur on private property, a citizen who wants to preserve freedom of speech should advocate that the amount of public property itself—property owned by the state—be minimized, or even eliminated. This would prevent the state from claiming and managing property to the detriment of many citizens.

What about people without property? An obvious objection to free speech being based on property rights is the case of a poor person, a person who owns little or no property. Take the case of a person with low income, renting an apartment owned by a landlord. Since the renter does not own the apartment, does that mean he has no right of free speech there? In fact he does not, but consider a competitive apartment renting environment in which some landlords offer free speech as part of the deal and others do not. Those that do not will be at a competitive disadvantage. The market will force them to either lower their rents, to the benefit of renters who attach no value to free speech, or to consent to free speech by renters.

To people who misunderstand freedom of speech, it sounds horrendous that a person’s free speech might be limited by a landlord. But in fact today, most landlords ALREADY DO limit renters’ free speech, through their rental agreements. These agreements often require the landlord’s approval before the renter can post notices or signs, and certain types of content is strictly prohibited.  Public speaking on apartment grounds is also usually prohibited without prior approval. A disgruntled renter cannot post in a public area, for example, signs saying the rent is too high, the building is drafty, or the landlord is slow to fix broken plumbing, etc., and he cannot make unauthorized loud announcements in common areas. Renters accept these restrictions voluntarily when signing their rental agreements. And although there may be a few landlords who may try to prohibit it, tenants are nearly everywhere free to express speech of any content within the confines of their own apartments, provided they do not disturb the peace of their neighbors—the same case as for the property owner.

In the case of a homeless man who lacks an apartment, at any given moment he is either occupying public property or someone else’s private property. When he is on private property he is either trespassing or is there with the owner’s consent. The owner may consent to his free speech, or may choose to constrain it. If on public property, the homeless man has the same opportunity as any other citizen to free speech, subject to restrictions imposed by the state, legitimate or not. 

Hate Speech. It has become popular in recent times for states to erect laws that criminalize “hate speech”.

In Canada, inciting hatred against "any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation" is a criminal offense with maximum prison terms of two to fourteen years. The law makes exceptions for cases of statements of truth, and subjects of public debate and religious doctrine.

France prohibits public and private communication which is defamatory or insulting, or which incites discrimination, hatred, or violence against a person or a group of persons on account of place of origin, ethnicity or lack thereof, nationality, race, specific religion, sex, sexual orientation, or handicap. The law also prohibits declarations that justify or deny crimes against humanity, for example, the Holocaust.

In the Netherlands, Dutch penal code states,

“He who publicly, orally, in writing or graphically, incites hatred against, discrimination of or violent action against person or belongings of people because of their race, their religion or their life philosophy, their gender, their heterosexual or homosexual orientation or their physical, psychological or mental disability, shall be punished by imprisonment of no more than a year or a monetary penalty of the third category.”

American universities are perhaps the leading edge when it comes to restricting freedom of speech in the name of eliminating hate speech. In fact, the Foundation for Individual Rights in Education believes that 59 percent of colleges and universities restrict free speech, and another 35 percent overregulate speech on campus. That leaves only six percent without free speech regulation or restriction. Many of these regulations have to do with “hate speech”.

Hate speech laws sound, to many, like a good idea, at least superficially. Upon hearing the description of an existing or proposed hate speech law, many people agree that the law describes something reprehensible, and they often support enacting (or continuing) the law to prevent the “hate speech” from occurring.

Hate speech laws do not actually prevent hate speech from occurring. But they do result in formal charges, prosecutions, and convictions, which help to fill the dockets of state courts. Some celebrated trials have occurred, most notably against Dutch MP Geert Wilders, who has spoken out against the Islamization of Europe as a tremendous, looming danger. (He was acquitted.)

Aside from the fact that they improperly restrict speech, one problem with hate speech laws is that they improperly provide individuals and groups with a legal means of extortion, simply by claiming to be offended by someone’s speech. The laws as written may not entitle the supposedly-offended party to financial compensation, but the goal is not to go to trial, it is to receive a payoff, quietly and out of court. This works best against a well-known individual or company with deep pockets, who should consider themselves targets of what amounts to ambulance chasing.

Another problem with hate speech laws is that they establish precedent for the state to criminalize speech based on its content. This is a dangerous tool for further suppression of speech, including speech against the state itself. Speech against the state is the MOST IMPORTANT of all speech, and must be protected at all costs. If the state can prosecute and imprison you for what you say about it, how is that anything other than tyranny?

Wrap up comments. In the end, as with all liberties, you get to keep the liberties that you are prepared to fight for. Unfortunately, few people are prepared to fight for any of their liberties today, including the right to free speech.