Limits on freedom of speech within democracy

Elon Musk might take over Twitter. Apparently, he is right-wing now. Who would have expected that? But if he controls twitter, free speech absolutism just might reign supreme. Apparently free speech absolutism is bad. It enables fascism but an even worse evil that has recently popped up… DISINFORMATION!!!

Obviously, outlets like The Guardian and The New York Times have written about the problems with absolute free speech in the current age. They’re worried. Perhaps this indicates something?

I mean, if you’re using free speech absolutism as a pejorative, you’re probably on the side of those with power worried that too much tolerance might be granted to groups or people you view as beyond the pale.

Classical Liberalism, unlike Libertarianism, did not traditionally support absolute freedom of speech. Insulting the king remained illegal in many constitutional monarchies in Western Europe.

Freedom of speech jurisprudence from the Supreme Court in the United States has been exceptionally libertarian for many decades now, especially compared to Canada and Australia.

But if free speech isn’t absolute, what are the limits and who determines those? Those in power? Police officials? Prosecutors appointed by the executive? That’s too scattered right?

So laws passed by the majority in parliament? That could oppress minorities and the opposition.

So the constitution then? If there are to be limits on freedom of speech, that would seem constitutional limits on freedom of speech would need to be clearly defined.

When freedom of speech is limited an independent prosecution service becomes important but especially an independent judiciary is essential. Who appoints the judges and how independent are they after appointment? With judges being threatened by members of congress in the USA, trials limiting freedom of speech seem especially complicated.

Obscenity while a vague term for modern readers, was pretty clear back in the day. It could be used against any work that seemed pornographic or needlessly violent or crude but would be difficult to use against political opposition.

Maybe I am being too literal here, but it seems to me that things like pornography or any form of erotic art aren’t speech. You could argue it is covered by freedom of expression, but speech would appear to be just that, speech.

Other grounds were generally blasphemy and sedition. The former is easy to define, at least in a society where the overwhelming population is some form of Christian, or where almost everyone is some form of Buddhist. The consensus helps.

Sedition is a bit trickier. Does it merely prohibit advocating violent rebellion or breaking the law? During war times criticism of how the war is conducted or whether it is just, might get you into trouble.

In a polarized society limits on freedom of speech tend to be more difficult to define and enforce.

Those on the left are currently arguing against ‘fascist speech’, but Democratic Socialist George Orwell wisely noted that the term had become an overused insult. It was specifically used by Marxists including communist dictatorships.

Is counterrevolutionary speech the same as fascist speech? To many communists it is. Who gets to define fascism? Do judges have to become historians? What if judges agree with Jonah Goldberg and PragerU that fascism is (American) Liberal and for big government?

Now we have the debate regarding disinformation. Who defines that? The ministry of truth?

Famous neo-Marxist Marcuse called it repressive tolerance to tolerate non-news since it harmed actual news in his view. He was open about the fact that he regarded the right as ignorant and the left as intelligent. No equal rights for the opposition. That’s too outdated I suppose.

The non-aggression principle is the one and only limit on freedom of speech under a libertarian system. Protests meant to intimidate people (specifically judges) could arguably be banned under such a principle (besides protests are more than just speech).

While this may not be ideal, the alternatives seem worse. Specifically in societies with little trust in anyone outside one’s own group, extremes gaining at the expense of the center and rapid and radical changes.

Ramon Giralt

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