TGIF: Trump Fibbed about Favoring Free Speech

Trump fibbed when he signed his first executive order in January, the one that promised never to repeat the Biden-era barriers to free speech. Everyone knows this by now. FIRE (the Foundation for Individual Rights and Expression) summed it up well, yet only scratched the surface: "We cannot be a country where late night talk show hosts serve at the pleasure of the president."

The Maestro dislikes being criticized, and he regularly displays his willingness to use government power to get revenge. We see this with his string of lawsuits against newspapers and networks for being "unfair" and defamatory (Trump apparently hasn't been informed that in 1964 the Supreme Court, in New York Times v. Sullivan, raised the defamation bar for public figures extremely high). It's also clear in his expressed interest in yanking licenses from broadcasters. There is little need to rehearse FCC Chairman Brendan Carr's Don Corleone impression aimed at ABC and affiliates over late-night host Jimmy Kimmel. Carr offended even Sen. Ted Cruz, who's on the red team. Trump has other television talk shows in his sights.

More broadly, Attorney General Pam Bondi, ignorant of the First Amendment and its underlying philosophy, distinguished protected free speech from presumably unprotected "hate speech." The non-rookie made an embarrassing rookie error (U.S. law makes no such distinction), and Trump applauded. She later said (after having it explained to her?) that she meant speech that incites violence. Conservatives ought to tread lightly here. Some Americans think it's hateful and inciteful to say (correctly) that for human beings, sex is binary and unchangeable or that people should be judged according to their talent and not their skin tone, ethnicity, or gonads. Red and blue hypocrisy has been thick throughout this whole controversy. The blue team cheered when Biden violated freedom of speech over social media during the pandemic. Now it's red's turn. Who supports cancel culture now?

Re Kimmel, the pro-Trump narrative is that the preemption by ABC and its affiliates (since partly reversed) was a business response not to government threats, but to upset viewers. Unlikely. Nevertheless, Trump and Carr muddied the waters with the threats. Had they kept quiet, we might have been able to see how bottom-up the preemptions were.

But even then, we couldn't be sure because the government holds life-and-death licensing power over traditional broadcasters, who surely did not need reminding. (Trump has renewed his threats against ABC, which owns some stations, and its affiliates that reinstated Kimmel's show.) Broadcasters are not free in the land of the free to thumb their noses at the FCC or at a president who expects the FCC to do its bidding. Furthermore, the FCC and other regulatory agencies have the power to cast thumbs up or down for company mergers and acquisitions, which means businesses that displease the administration could have their plans destroyed by frowning bureaucrats. That's not capitalism, i.e., free private enterprise.

Traditional television and radio stations are privately owned companies, but they do not own the frequencies over which they broadcast. In contrast, factories and stores sit on private land. We would not regard an economy as capitalist if the government owned all the land and licensed it to businesses in return for promises to serve the public interest as defined by government officials.

But that is precisely how it works with broadcasters. The airwaves are not treated like private resources that were homesteaded by pioneering entrepreneurs who grasped the potential of radio and television. That could have been the case except that one man, about a century ago, kept it from being so: Herbert Hoover, the Republican secretary of commerce before he was elected president in 1928. Hoover gave us the regime under which the government "permits" companies to use "the public's airwaves" in return for the promise to serve the public. Of course, a government commission decides what's in the public interest. Mere consumers acting in the market can't be trusted with such a grave mission. (A former FCC chairman once said that the public interest is not necessarily what interests the public.) The public-ownership theory was always inane. How could the collective that didn't even know the airwaves existed have an equal ownership claim to individuals who saw the potential and did something about it?

That Hoover nationalized the broadcasters' key means of production should be a tip-off that he was not the crusty laissez-faire president the teachers make him out to be. Far from it. He was a "progressive" statist who derailed the common-law, private-property evolution of the airwaves that was underway in the 1920s with court recognition. (On Hoover's "progressive" presidential conduct after the stock market crashed in 1929, see Murray Rothbard's America's Great Depression.)

Here's a question: how does government licensing power square with the First Amendment, which guarantees that "Congress shall make no law ... abridging the freedom of speech, or of the press"? The circle cannot be squared.

A great myth of American history is that nationalizing the airwaves was the only answer to the chaos that was said to be occurring at the dawn of radio. That's false. Economist and historian Thomas W. Hazlett, a long-standing authority on this matter, debunked that myth most recently in "Abolish the FCC," published by Reason last year.

In 1927, mass-market electronic communications had already arisen under the common law rule of "first come, first served" and did not need federal micromanagement. What the new Federal Radio Commission later deemed "five years of orderly development" (1921–26) was disrupted by strategic regulatory dancing that preempted enforcement of such property rights. Sen. Clarence Dill (D–Wash.), author of the 1927 Radio Act, explained that the purpose "from the beginning … was to prevent private ownership of wave lengths or vested rights of any kind in the use of radio transmitting apparatus." [Emphasis added.]

Predictably, the regulatory apparatus did not serve any authentic public interest; that was a fig leaf. Instead, the bureaucrats, among other insults, impeded new technologies as a favor to incumbent interests, to the detriment of consumers and upstart, innovative producers. Hazlett writes:

FM radio, invented in the 1930s, was stymied for decades; cellular telephone networks, designed during World War II, were sandbagged by the spectrum allocation process until the 1980s. Countless other wireless innovations died stillborn.

Besides stifling technology, the FCC has long been used by presidents for political purposes. What would you expect? (On the slippery notion of the public interest, see this.)

Markets serve the public (consumers), and governments don't. As Hazliett puts it, "It's taken too long to grasp the marvel of spectrum markets. Another century for the brainchild of Herbert Hoover seems needlessly inert. Let the invisible hand regulate the invisible resource."

The old media are declining because consumers prefer all of the alternatives that use new technologies. The irony is that while critics of capitalism exploit those alternatives with gusto, they have yet to acknowledge that capitalism is what has made those cheap or free alternatives possible.

Privatizing the airwaves wouldn't stop Trump from interfering with free expression, but it would be a worthwhile first step.

Some Recent Social Media Posts

(Check back periodically to see what I've added.)

If the choice is between a welfare state and a police state (I despise both), I know which one I would choose.

He who wills the end, wills the means. Serious immigration restriction requires police-state measures.

Simply put, if you want what others have produced, you have to offer them something they want in trade.

Border crossing without government permission is a victimless crime.

Think of all the horrible things that can happen in the absence of a total surveillance state. Is that an argument for the surveillance state?

If you can't see the difference between a Stop sign at an intersection and a Do Not Enter sign at a border, you need an eye doctor.

Libertarians don't bat an eye over law-breakers who violate no rights. But when it's a person without papers -- watch out!

Statists have long tried to scare people into supporting big government. Today even some libertarians do it. It's a topsy-turvy world.

Dear Free Speech Absolutists: I assume it's okay with you if businessmen discuss pricing strategies among themselves. It's fine by me.

What's the point of being the exceptional nation if you can't throw your weight around?

The anti-free-immigrationists know where they want to go and are prepared to pay any price in other people's freedom to get there. The questions are: why do they want to go there, and what aren't they telling us?

Life is inherently risky. In a world of nation-states, do we want a state powerful enough to address all conceivable risks? If so, what else is it likely to be capable of?

When ICE agents burst into restaurant kitchens to round up people without papers, are they trespassers? How about when agents take property by eminent domain to build border fences? Is that trespass and theft? Immigrants don't do that.

Anti-state anti-immigrationists don't hate the state enough.

The essential case for liberty has never been a matter of data. (Sorry, consequentialists.) It's been a matter of moral principle.

If drugs were legalized, more people would use "public" health services. Same if people could ride motorcycles without helmets or ride in cars without seatbelts. Should libertarians oppose those freedoms because people might use tax-funded programs?

The regime intends to rid America of all "undocumented" persons. But a free society would not have *documented* persons. That's how far down we've gone.

Welfare recipients are not aggressors. The aggressors are the tax collectors and the politicians who empower them.

Libertarian border guardians say there's no freedom to move because other people own property. (We never thought of that one!) By the same standard, there's no freedom of speech.

If capitalism is about survival of the fittest, why do capitalists mass produce inexpensive eyeglasses, hearing aids, etc.? Why do they promote the flourishing of the "unfit"?

Libertarian border guardians say there's no freedom to move because other people own property. (We never thought of that one!) By the same standard, there's no freedom of speech.

How great is this: You can get fabulously rich by providing valued goods and services to the masses. Wow!

If you had told people that [see above] a few hundred years ago, you'd have been locked up in a looney bin.

TGIF: Free Speech Restored?

Don't get accustomed to me praising Donald Trump, but exceptions will occur now and then. Trump is no principled friend of liberty, not by a long shot. Judging by most of his actions and words, he recognizes no impenetrable boundary between the government and the private sector, the market economy. We may infer that he sees the central government and the country itself as a company that he runs with few restraints. He seems to imagine himself as the chairman and CEO of the United States, with only a toothlessly subservient board of directors. I need only point to his trade and immigration policies to support this inference. It shows itself in many other ways.

Trump is a collectivist of the nationalist variety. He's a devotee of industrial policy, in which the central government aspires to guide the free-enterprise economy in lots of ways. For him, free-ish enterprise may be permitted when it doesn't conflict with his preferences—but only then. He decides. Put another way, he is an advocate of the corporate state in an earlier sense of the term. It doesn't mean that government does the bidding of large corporations. Rather, it means the nation-state is seen as a single organism with one set of interests. Society is the body (Latin: corpus), and the ruler—Trump—is the head.

But (cautious) credit should be given where it is due. Before that, however, something must be said about how even good things are done. Government by executive order and emergency declaration is ominous. The division of powers and the checks and balances among the three branches have at least the potential to stave off government threats to liberty. Those checks should be strengthened. The Department of Education and USAID, to name just two federal entities, should unquestionably be abolished! But is autocratic decree a good thing? It's certainly satisfying to see employees and supporters of those agencies panic over their closing, but the issue is bigger than that. The next president may undo any pro-liberty decrees and issue new ones inimical to liberty. Precedents matter.  An imperial presidency, one that can amend the Constitution unilaterally, does not serve freedom and the market economy.

Now for the credit. On Jan. 20, 2025, shortly after his inauguration, Trump signed an executive order titled "Restoring Freedom of Speech and Ending Federal Censorship" in response to one of the worst things Joe Biden and his administration did. They had effectively suppressed the speech of Americans by threatening—at least implicitly but in no uncertain terms—private social-media companies if they did not suppress lawful posts about the Covid pandemic and the Hunter Biden laptop. In other words, as a judge put it, Biden set up an Orwellian ministry of truth to crack down on dissent and inconvenient facts. Lawful speech was smeared as disinformation and misinformation, perhaps of foreign origin. Even true statements were to be suppressed, however subtly, if they undermined confidence in the government's objectives. Individuals were maligned.

That is not supposed to happen in a free society, where freedom of speech and press are enshrined in the First Amendment to the Constitution, which theoretically, if not actually, restrains the exercise of government power. The government may not censor; therefore it may not use private firms to do what it may not do. The government's bad conduct was challenged in court, initially successfully, but the Supreme Court eventually ruled against the free-speech advocates, claiming they had no standing. (See Murthy v. Missouri.)

So kudos to Trump for issuing an executive order to prevent such misconduct from happening again. The executive order spoke the truth with its opening words:

The First Amendment to the United States Constitution, an amendment essential to the success of our Republic, enshrines the right of the American people to speak freely in the public square without Government interference.  Over the last 4 years, the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.  Under the guise of combatting “misinformation,” “disinformation,” and “malinformation,” the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate.  Government censorship of speech is intolerable in a free society.

The order goes on to declare that it is now the policy to

ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen;

ensure that no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen; and

identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech.

It then declares that "no Federal department, agency, entity, officer, employee, or agent may act or use any Federal resources in a manner contrary to ... this order."

It also directs that the "Attorney General, in consultation with the heads of executive departments and agencies, shall investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order and prepare a report ... with recommendations for appropriate remedial actions to be taken based on the findings of the report."

Why did I give only cautious credit? Here's why: "Media outlets must not cave to Trump’s lawfare." As the Foundation for Individual Rights and Expression (FIRE), put it. "What happens to freedom of the press when the president can bully media outlets he doesn’t like into paying big money to end his meritless lawsuits against them? Buckle up. We’re about to find out." FIRE points with alarm to "Trump’s dictatorial appetite to use lawfare to silence or punish outlets that publish content he doesn’t like." 

This is ominous. With Trump, there will be no rest.

TGIF: Leave TikTok Alone

This is America, last I checked. Surely, the government would not force the sale of a social-media company or ban its app from the Google and Apple stores. Would it?

Well, yes, it would,  could (perhaps), and might. A bill in Congress, backed by the government's nominal chief executive, could become law. The House of Representatives passed it last week by an overwhelming bipartisan majority -- despite valiant efforts by Rep. Thomas Massie,  R-KY, plus a few others -- and it is now before the Senate.

That bill would establish fuzzy criteria defining a "foreign adversary's" alleged influence through a social media platform. It is aimed, for now, at requiring TikTok, used by 170 million mostly younger Americans, to be sold to a government-approved American buyer within a specified period. If not sold, Americans would be forbidden to get the app. I guess the app would have to be disabled for those who have it already.

In other words, TikTok would be banned from America -- you know, just as China's communist government bans or interferes with social media over there. Knowing how the government works, we must presume that the bill's criteria will be applied to other cases later. It certainly would exist as a standing threat to the uncooperative.

The complaint against TikTok is that it's a subsidiary of ByteDance, a widely owned company subject to Chinese government influence or control, although this is disputed by TikTok's CEO, Shou Zi Chew, a Singaporean businessman with substantial roots in -- the United States. But let's assume the worst and see where that leads. After all, the Chinese government is no respecter of individual rights. If the U.S. government is eager to interfere with social media, why not the Chinese government?

TikTok worriers say that China could harvest data on Americans while feeding them self-serving democracy-subverting messages. It has reportedly been caught suppressing unflattering information. Not good, but of course, the U.S. government has done the same thing; a lawsuit about this, Murthy v. Missouri, is now before the Supreme Court. As many critics of the bill have pointed out, the Chinese don't need TikTok to acquire information that users readily give up to other platforms. It's already on the market. Moreover, nobody should expect the news from any one online source to be complete; as one grows, one should learn to consult a variety of sources for a fuller picture.

Matthew Petti of Reason is right: "Competition is the strongest force keeping the internet free. Whenever users find a topic banned on TikTok, they can escape to Twitter or Instagram to discuss the censored content. And when Twitter or Instagram enforce politically motivated censorship on a different topic, users can continue that discussion on TikTok."

Changing ownership or banishing TikTok would create a false sense of security. The problem of myopia would remain.

Moreover, as Matt Taibbi alerts us, the bill would give the executive branch "sweeping powers." He writes: "As written, any 'website, desktop application, mobile application, or augmented or immersive technology application' that is 'determined by the President to present a significant threat to the National Security of the United States' is covered.'"

Taibbi continues: "A 'foreign adversary controlled application,' in other words, can be any company founded or run by someone living at the wrong foreign address, or containing a small minority ownership stake. Or it can be any company run by someone 'subject to the direction' of either of those entities. Or, it’s anything the president says it is. Vague enough?"

By this time, shouldn't we expect the worst from letting legislators write the rules?

But those are not the only reasons for concern. According to Glenn Greenwald, the bill had been floating around for a few years but had not garnered enough support to get through Congress. That changed recently, according to Greenwald, citing articles in the Wall Street Journal, Economist, and Bari Weiss's Free Press. Why? As Greenwald documents, anxiety about TikTok took a quantum leap beginning on Oct. 7, 2023, the day Hamas killed and kidnapped hundreds of Israeli civilians and Israel began retaliating against the people of the Gaza Strip.

What has this got to do with TikTok? you ask. Good question. Israel's defenders in the United States, such as Jonathan Greenblatt of the Anti-Defamation League, are upset that TikTok's young users are being exposed to what he calls anti-Zionist and anti-Semitic disinformation. "It's Al Jazeera on steroids," Greenblatt said on MSNBC. During a leaked phone call, he complained, "We have a TikTok problem," by which he means a generational problem. Younger people -- including younger Jewish people -- are appalled at what Israel's military is doing in Gaza. (To complicate things, it looks like TikTok and Instagram have suppressed pro-Palestinian information.)

Would an American-owned TikTok be easier to control? Experience says yes. Have a look at the Twitter Files, which document how American officials, Chinese-style, pressured social media to censor or suppress dissenting views on important matters such as the COVID-19 response and the 2020 election. A federal judge likened the government's efforts to the Ministry of Truth in Orwell's Nineteen Eighty-Four.

Do we want to become more like China?

A final word. Defenders of free speech should not argue that ill-intentioned disinformation and well-intentioned misinformation from any source can cause no harm, broadly defined. Of course, it can. The proper answer to this legitimate concern is that government-produced "safetyism," placing safety above every other value including freedom, will do more harm than good.

TGIF: Free Speech Affirmed -- Pretty Much

The preliminary injunction against federal censorship of social-media users has survived the Biden administration's appeal. However, it remains on hold until Sept. 22 while the Supreme Court considers the matter.

The latest ruling, 78 pages long, by a panel of Fifth Circuit Court of Appeals judges, affirmed the core of District Judge Terry Doughty's July 4 preliminary order, but the revised order has two big differences. The appellate judges exempted some defendants and narrowed Judge Doughty's list of prohibited actions to just one modified but broad prohibition. We'll have to see how that works out, but the court has certainly admonished Biden officials for censoring Americans' speech by systematically leaning -- sometimes very heavily -- on the social-media companies.

The New Civil Liberties Alliance (NCLA), which represented some of the plaintiffs, commented, "Today’s order should stop that conduct."

Recall that Judge Doughty's ruling in the suit filed by Missouri and Louisiana on behalf of its residents, along with several private individuals, including COVID-19 dissident Drs. Jay Bhattacharya and Martin Kulldorff. Doughty had agreed that the plaintiffs had shown that the federal government, through repeated contacts with social-media personnel, had perpetrated “arguably the most massive attack against free speech in United States history.” He likened the Biden administration's efforts to "an Orwellian Ministry of Truth.”

The upshot of the ruling is that when the government "suggests" to Facebook or X that certain posted material is, well, unhelpful, concerning, or even dangerously misleading, it constitutes implicit censorship in violation of the First Amendment. Why? Because some government officials are in a position to punish (through antitrust action, civil-liability rules, or regulation) uncooperative parties. Therefore, even recommendations or pleas to remove or suppress posts necessarily carry a veiled threat. In the present case, the appellate judges write, the threats were sometimes stark naked.

It is well-established in law that what the government may not do directly -- say, block expression -- it may not do indirectly, such as by pressuring private companies to in effect censor.

The judges' panel recapped the findings:

For the last few years—at least since the 2020 presidential transition—a group of federal officials has been in regular contact with nearly every major American social-media company about the spread of “misinformation” on their platforms. In their concern, those officials—hailing from the White House, the CDC, the FBI, and a few other agencies—urged the platforms to remove disfavored content and accounts from their sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.

Enter this lawsuit. The Plaintiffs—three doctors, a news website, a healthcare activist, and two states—had posts and stories removed or downgraded by the platforms. Their content touched on a host of divisive topics like the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story. The Plaintiffs maintain that although the platforms stifled their speech, the government officials were the ones pulling the strings—they “coerced, threatened, and pressured [the] social-media platforms to censor [them]” through private communications and legal threats.

The judges pointed out in great detail that the "platforms were apparently eager to stay in the officials’ good graces" and did not just wait for suggestions about stifling dissent. That sounds like the Stockholm syndrome. But their efforts to please their overseers weren't always enough: "The officials were often unsatisfied. They continued to press the platforms on the topic of misinformation throughout 2021." A powerful thirst can be hard to quench.

The judges reversed the injunction against three defendants: the National Institute of Allergy and Infectious Diseases (which Anthony Fauci ran until he retired), the State Department, and the Cybersecurity and Infrastructure Security Agency. The judges wrote: "We find the district court erred in enjoining these other officials. Put simply, there was not, at this stage, sufficient evidence to find that it was likely these groups coerced or significantly [encouraged] the platforms."

The White House, the Surgeon General, the CDC, and the FBI continue to be enjoined.

A preliminary injunction, of course, aims at future behavior, which the government unsurprisingly objects to. In rejecting the defendants' appeal, the judges responded refreshingly, "The district court found that the Plaintiffs submitted enough evidence to show that irreparable injury [from First Amendment violations] is likely to occur during the pendency of the litigation."

Put another way, the district and appellate judges do not believe the executive branch when it says in effect, "We didn't do it, and we promise never to do it again."

As for the modification of Judge Doughty's prohibitions, the judges found that his list had too many vague and overlapping items. So it struck down all but one and modified it. The edited version now reads:

Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.

That looks pretty good, doesn't it? We'll see how all this works out in practice. The next move is the Supreme Court's.

 

 

TGIF: Paternalists Cross the Free-Speech Line

Some pundits are puzzled that respectable mainstream Democrats and  "progressives" are no longer free-speech absolutists but rather are enthusiastic defenders of the government's massive effort to squelch expression on the social media platforms. (Glenn Greenwald is one of those puzzled pundits.)

The center-left goes so far as to smear the exposers and critics of government censorship as tin-foil-hatted conspiracy theorists. For example, Matt Taibbi is called a "so-called journalist" for his work on the Twitter Files, despite his award-winning career in investigative reporting. And look how hysterically the center-left reacted to a judge's preliminary injunction against government pressure on social media to suppress dissenting and inconvenient posts.

But why should those pundits be agape? If censorship (by which I mean government suppression of expression) is motivated at least in part by the paternalist desire to protect people from themselves, then I don't see why the censorship arrow would not be in the paternalist's quiver. Any consistent paternalist would believe that the unenlightened public can't be sensible enough to sift "information" from "mis- and disinformation" and read only the "proper" things.

Maybe the paternalists took longer to cross the free-speech line than they might have -- the First Amendment is a powerful taboo in America-- but cross it they now have. Is that so mysterious?

The statement The center-left is paternalist should occasion no controversy. We already knew that. (Of course, it has no monopoly on paternalism, but it is a strong element there.) Government interference with people's freedom to choose in the market is always proposed at least partly to protect them from themselves.

I acknowledge that the line between intending to protect people from themselves and intending to protect them from others can be blurry. Both rationales qualify as paternalistic, and both have been used to limit speech: think of the laws restricting commercial speech. But the former is definitely present.

Classical liberals have rejected that sort of paternalism. John Stuart Mill (not the most hardcore classical liberal) wrote:  "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant." (On Liberty) That is, the government should not protect people from themselves.

It's not just classical liberals and full libertarians who have criticized paternalism, or nanny statism. We've all heard that "the road to hell is paved with good intentions." We've been told that the words most to be feared are "I'm from the government and I'm here to help you." It's been said that "a government powerful enough to do everything for you is powerful enough to do anything to you." In politics the term do-gooder is an insult.

I admit that the paternalist's defense of invasive government action might be a lie to cover another objective, such as power or unearned financial gain. But I see no reason to doubt that the expression of paternalism is usually sincere. I'm not saying that sincerity is a good defense of paternalism. We might want to despise the paternalist who really means it even more than the liar because as C. S. Lewis wrote:

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.

Lewis was no libertarian, so here's Lysander Spooner in No Treason: The Constitution of No Authority:

The fact is that the government, like a highwayman, says to a man: Your money, or your life. And many, if not most, taxes are paid under the compulsion of that threat.

The government does not, indeed, waylay a man in a lonely place, spring upon him from the road side, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.

The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a “protector,” and that he takes men’s money against their will, merely to enable him to “protect” those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful “sovereign,” on account of the “protection” he affords you. He does not keep “protecting” you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villanies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.

I also acknowledge that honest paternalists are happy to join with (usually tacitly) seekers of unearned income in pressing their policy preferences. Don't forget the "bootleggers and Baptists" phenomenon. That's Bruce Yandle's term for when preachers, for example, team up with moonshiners to make or keep liquor illegal. That doesn't change what the paternalists are up to.

The point is that for a long time American paternalists drew the line at the First Amendment because censorship was such a taboo. Alas, that taboo is gone.

 

 

TGIF: Free Speech Upsets Powers that Be

The Biden administration, along with mainstream politicians and journalists, are really upset that U.S. District Judge Terry A. Doughty has forbidden the executive branch of the central government from communicating with social-media platforms for the purpose of censoring or otherwise suppressing constitutionally protected speech. Judge Doughty's action came in an important free-speech lawsuit filed against the government.

He wrote in an accompanying statement: 

During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.” 

So-called respectable government officials, journalists, and pundits -- the alleged adults in a room -- consider the judge's temporary injunction the worse thing that could possibly happen. The headline in the "progressive" publication The American Prospect screamed in panic: "Trump Judge Effectively Names Himself President." (That "Trump judge," by the way, was confirmed by the Senate 98-0.)

Imagine it: agents from the FBI, the Department of Homeland Security, and other government agencies may not even "suggest" to Facebook, Twitter, etc., that they ought to take down or hide posts that take issue with the government's official line about ... whatever. Of course, when government officials suggest something to a private party, the suggestion may be interpreted as being accompanied by the subtle threat to retaliate legally if the suggestion is ignored. Think of protection racketeer telling a shop owner, "You have a nice place here. It would be a shame if it burned down." Get the picture?

As we know, the government has been doing stuff like this for years, whether the matter was related to the COVID-19 pandemic, the Hunter Biden laptop, the Russia-Ukraine war, Russia's alleged collusive 2016 election tampering, and who knows what else. According to a congressional committee, the FBI apparently even collaborated with Ukrainian intelligence to censor Americans' frowned-on discussion of the Ukraine war on social media.

The posts that government agencies wanted suppressed included not only statements that were perhaps provably wrong  -- incorrect speech per se is constitutionally protected, incidentally -- but also accurate information that the government simply found inconvenient, like posts and links that might make people hesitate to get the COVID-19 vaccine, wear masks, accept totalitarian social lockdowns, or trust that the coronavirus came from a Chinese market rather than a U.S.-funded lab in Wuhan, China.

Let's remember that much of the challenge to the government's take on the pandemic and other matters -- criticism belittled as "tin-foil" conspiracy-mongering -- turned out to be true. Contrary to the government's position, the search for the truth requires the freedom to openly disagree and debate. That search abhors centralization, coercion, and the exclusion of anyone but the politically anointed "experts." The right to free speech is a practical necessity if we are to pursue our well-being. Any step toward the paternalistic centralization of research and control of communication is not only immoral (by whatever standard you like) but also inimical to health, wealth, and other aspects of a fully human way of life.

In other words, as the judge acknowledged, the central government has gone to extraordinary lengths to control what the public can read and say on social media. It's as if free speech were not a pillar of liberal philosophy and tradition -- liberal in the older and best sense of a presumption of individual liberty in all spheres. Further, it's as if the first restriction on government power in the Bill of Rights was not the absolute prohibition on the infringement of free speech and press. It's a well-established principle of American law that the government may not pressure private parties to do what it itself may not constitutionally do. Yet that's exactly what happened -- repeatedly. It's a disgrace. How can the government be trusted? It never could be.

Since the Biden administration, urged on by the power elite and the insecure establishment media, does not like being told that it may not violate our freedom of speech, it asked Judge Doughty to suspend his temporary injunction while the Justice Department appeals it. Judge Doughty said no. So the action moved to the appellate court. The Washington Post said that "The Justice Department’s filing signaled that it could seek the intervention of the Supreme Court, saying that at a minimum, the 5th Circuit should put the order on pause for 10 days to give the nation’s highest court time to consider an application for a stay."

I sense desperation. The judge must have done something right. Remember that the injunction, alas, does not bar all government contact with social-media companies: he listed exceptions for actual criminality and national security. Only interference with constitutionally protected expression was included. I don't remind readers of these exceptions to comfort them -- the government will likely abuse the exceptions. I remind readers only to show that the order contains those exceptions. So what is the government so worried about? It says that the judge's order is hopelessly vague and doesn't address every possible eventuality. The answer is easy: if the choice is between vagueness in restricting government power and violating individual liberty, I know which I prefer. This is supposed to be America, isn't it? Rights precede government.

Good people have enough to be concerned about when it comes to social media restricting their expression. Yes, they are private companies, and it's easy to think of people who are so obnoxious that one wouldn't want to encounter them online.

On the other hand, no one has reason to be confident that Twitter, Facebook, YouTube (Google), etc., will use exercise that right judiciously. That you have a right to do something does not mean you should do it. Can does not imply ought. YouTube reportedly deleted Jordan Peterson's interview with Robert F. Kennedy Jr. because it contains what it regards as -- and well may be -- misinformation about vaccines. Kennedy is challenging Joe Biden for the 2024 Democratic presidential nomination. One need not agree with Kennedy on vaccines (I'm inclined not to) to be uneasy about YouTube's decision. We also can't rule out that YouTube acted in anticipation of the government's disapproval. Government casts a shadow over everything.

We mustn't call on the government to manage social media through antitrust or regulation. We should favor real competition. But we should insist on a prohibition of government action, direct and indirect, to suppress speech on those platforms or anywhere else. Judge Doughty understands that. Let's hope other judges do too.

Don't Be Silent

We should reject the fashionable idea that one should never write or post anything that possibly could be used by bad people for bad purposes. That admonition brings two things to mind.

First, it fails its own test. If good people avoid a topic because even constructive analysis might be put to bad use, the very avoidance will likely fuel conspiracy theories about how this or that interest group controls the public debate. Thus the fashionable idea is self-subverting — much as the precautionary principle is.

Second, it reminds me of what Ludwig Wittgenstein, in a very different context, wrote in concluding his Tractatus Logico-Philosophicus: “Whereof one cannot speak, thereof one must be silent.” There are no chilling implications in Wittgenstein’s maxim because he literally meant can not, as opposed to may not. The same can’t be said for the fashionable maxim.

TGIF: How the State Violated Free Speech during the Pandemic

Is anyone shocked by this observation?

Public statements, emails, and recent publicly released documents establish that the President of the United States and other senior officials in the Biden Administration violated the First Amendment by directing social-media companies to censor viewpoints that conflict with the government’s messaging on Covid-19....

This insidious censorship was the direct result of the federal government’s ongoing campaign to silence those who voice perspectives that deviate from those of the Biden Administration. Government officials’ public threats to punish social media companies that did not do their bidding demonstrate this linkage, as do emails from the Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) to social media companies that only recently were made public.

So states the New Civil Liberties Alliance (NCLA) in announcing its lawsuit against President Joe Biden, former chief medical adviser Anthony Fauci, and other government public-health officials,  departments, and spokesmen. The case now before a federal district court in Louisiana is called State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al. No social-media company was named as a defendant. Rather, the suit is about the government's illegal and unconstitutional conduct. (See the complaint for the eye-opening details.) In fact, the complaint states: "Notably ... prior to Defendants’ campaign of threats and pressure, social-media platforms generally declined to engage in the acts of censorship alleged herein." 

The plaintiffs are the states of Missouri and Louisiana and several health care experts, including Dr. Jay Bhattacharya of Stanford University (among other prestigious affiliations) and Dr. Martin Kuldorff of Harvard University, two of the three authors of the Great Barrington Declaration, published in October 2020 and signed by thousands of medical professionals. The Declaration challenged the government-led strategy of shutting down American society through a variety of mandates as though everyone -- young and old, healthy and ill -- were equally vulnerable to the dangers of COVID-19. The government's data on who was suffering serious, possibly lethal illness and requiring hospitalization contradicted that baseless premise early in the pandemic.

The Declaration, which today has signatures from more than 62,000 scientists and health care professionals (and 932,000 signatures overall) called instead for "focused protection" of the elderly and those with already-compromised immune systems. Otherwise, Americans should be left free to live normal lives. The shutdown of society, this view holds, would inflict untold harm in regard to health (because of deferred medical examinations/treatments), psychological well-being, children's education, and lost income. All of this and more have now been documented. "Focused protection," it must be emphasized, was not a radical position in 2020. Rather, it had been the mainstream approach to pandemics for the previous 100 years.

Unfortunately, the authors, who also included Dr. Sunetra Gupta of Oxford University, were smeared by government officials and spokesmen as fringe characters who could be safely ignored. At the same time, the national government pressured social media to suppress challenges to its message and policies. In other words, the government did everything it could short of direct censorship to keep the American people from knowing that eminently qualified doctors and other scientists disagreed with the party line.

Under the U.S. Constitution and case law, the government is not only barred from directly interfering with speech on the basis of content, but it is also prohibited from inducing or coercing private entities, such as social networks, to do so. The Supreme Court has spoken on this.

The plaintiffs contend that this is precisely what the defendants did during the pandemic through "express and implied threats" against the social networks, including the threat of antitrust action and the threat to withdraw the protection provided by Section 230 of the Communications Decency Act, which immunizes the platforms from liability for what participants post. 

NCLA says:

Government-induced censorship is achieved through a wide variety of mechanisms, ranging from complete bans, temporary bans, “shadow bans” (where often neither the user nor his audience is notified of the suppression of speech), deboosting, de-platforming, de-monetizing, restricting access to content, requiring users to take down content, and imposing warning labels that require click-through to access content, among others. These methods also include temporary and permanent suspensions of disfavored speakers.

This sort of censorship, which strikes at the heart of what the First Amendment to the U.S. Constitution was designed to protect—free speech, especially political speech—constitutes unlawful government action. The federal government is deciding whose voices and ideas may be heard, and whose voices and ideas must be silenced. Moreover, this state action deprives Americans of their right to hear the views of those who are being silenced, a First Amendment corollary of the right to free speech.

The lawsuit seeks no monetary damages, but it asks the court to declare that the plaintiffs acted illegally. It also asks the court to

Preliminarily and permanently enjoin Defendants, their officers, officials, agents, servants, employees, attorneys, and all persons acting in concert or participation with them, from taking any steps to demand, urge, pressure, or otherwise induce any social-media platform to censor, suppress, de-platform, suspend, shadow-ban, de-boost, restrict access to content, or take any other adverse action against any speaker, content or viewpoint expressed on social media.

Going further, we must demand an end to the government-university-science complex, which puts a heavy political thumb on the scale of scientific debate without which the truth cannot be ascertained. As the complaint states, "Yesterday’s 'misinformation' often becomes today’s viable theory and tomorrow’s established fact.... This prediction has proven true, again and again, when it comes to suppressing 'misinformation' and 'disinformation' on social media." (The complaint notes other examples of similar reversals despite official government efforts, including the Hunter Biden laptop story and the Wuhan lab-leak theory of the coronavirus's origins. These once-belittled accounts either have been confirmed, as with the laptop story, or have achieved reasonable credibility if not confirmation, as with the lab-leak theory.)

Government officials must not be permitted to suppress, directly or indirectly, public-health and other sorts of claims they disagree with. Officials of course can say what they believe are the facts, but they must not attempt to smear, marginalize, and silence dissenters. The very act of financing scientific research is prejudicial because of the stamp of exclusive legitimacy it implies. As the pandemic illustrates, a truly free marketplace of ideas is literally a matter of life and death.

TGIF: More Voices, Please

If the social media and other high-tech companies, whether under pressure from the state or not, were to lead people to believe that, starting today, only accurate information will get through their gatekeepers, would the public, especially the most gullible, really be better off?

How so? How would it do people any favors to have them think that everything they read or have access to through Google, Facebook, Twitter, Spotify, etc. is good solid information rather than disinformation or misinformation? (Question: when the establishment media "reported" day after day over four years that Vladimir Putin had interfered with the 2016 presidential election to put his puppet in power, was that misinformation or disinformation?)

Of course the gatekeepers couldn't guarantee any such thing. They're not omniscient, especially when you remember on whom they will be relying for "the truth": government agents and their officially approved scientific and other experts -- the very source of so much demonstrable misinformation and disinformation on a whole range of subjects. Do you want to hear only from Dr. Fauci on Covid? Or Michael Mann on climate? Etc. Etc. Etc. (For proof of the CDC's disingenuousness, see this video.)

We absolutely need a variety of voices and viewpoints if we -- individually and cooperatively -- are to make good decisions for ourselves and our families in a world of unfolding yet always imperfect knowledge. Free speech is not a luxury that sometimes we can't afford. It's a bloody necessity at all times!

Do we need Joe Rogan? I don't, but I'm only me and I refuse to speak for anyone else. I've seen only a few brief segments of his program, but from my impression of him, I'd say Justin Amash had it right on Twitter:

People trust @joerogan not because he’s always right, but because he’s transparent, curious, gracious, humble about knowledge, and willing to consider perspectives that challenge and reshape his own thinking.

Spotify and the other platforms of course should be free to associate with anyone they want. And others have a perfect right to dissociate with those platforms as they see fit. We're talking here not what anyone has a legal right to do but what anyone ought to do or not do. One thing we can say for sure is that the politicians and their spokespeople ought to butt out. If anyone does not have free-speech rights when it comes to these matters, it's the people who hold and speak for state power. It's established in case law that government officials may not indirectly censor via winks, nods, and veiled threats directed at private companies. (See Glenn Greenwald's video commentary.)

By the way, if you're watching Joe Rogan for medical or diet or any kind of specialized advice that you can unblinkingly accept and act on, I've got news for you: you have bigger problems than a free-wheeling internet.

A further-by-the-way: it is absurd that certain words are simply unspeakable under any circumstances, as though we lived when people believed they could cast spells on others. There is a world of difference between directly using a slur word (as the word using is usually meant) and discussing how other people have used it. Would it really be impossible for a college English department to have a class on the history of taboo words? Is this society going crazy? If you treat young people, including college students, like babies, they might never grow up. An effective immune system, including the psychological immune system, cannot develop robustness -- or antifragility -- if it never is stressed.

And that brings up an important related matter. If people are so stupid that we can't have Rogan and others freely doing what they want online, why are those same stupid people urged to vote every two, four, and six years? It was Frédéric Bastiat who wondered how people could be such idiots every day of the year except election day. To be consistent, those who would suppress speech should be honest and come out against representative democracy. At least their story would have some coherence -- but not entirely. Because we might have to wonder how they managed to get out of the Platonic shadowy cave the rest of us are stuck in. But never mind that.

Look at how the enemies of free speech want to have it both ways. If you point out that Fauci has said different things at different times, they will say, "Of course! What's wrong with that? Fauci learned new facts as time went on, changed his positions, and updated the public."

But there's more to the story than that. Imagine that at time t Fauci says that vaccines will keep you from getting Covid. Then at t' he says, "Correction. You can still get it, although not as bad as you would have if you were unvaccinated." What's left out of this account is that at t, other people -- credentialed people -- had offered reasons to question Fauci's claim. If the would-be censors had had their way, the doubters would have been silenced for trafficking in disinformation. No one would have heard that Fauci's t statement might have been misleading or incomplete. We would have had to wait until t' to learn from Fauci himself that his earlier claims were "inoperative."

That sort of thing would be dangerous anytime, but it's especially so in a pandemic, when new facts come to light daily and even hourly.

Can life in a sea of free and conflicting voices be confusing? Hell, yeah. But you know what's worse? One Official Voice. That's essentially what we had in the golden era of three boring television networks, ABC, CBS, NBC, and one really boring television network, PBS. Return to those days? No thank you.

Centuries ago the liberal advocates of religious freedom were also admonished that a society could not function with the divisive free exercise of religion, including religious speech. The censors were wrong. The public-health establishment's and legacy media's special pleading in all this is too palpable to need elaboration.

Free Speech -- What Is it Good for? Absolutely Nothing?

It is worth emphasizing that Enlightenment liberals have placed at the very top of their list of desiderata an institution explicitly intended to detect and correct their errors: namely, the free marketplace of ideas. By opposing free speech, the enemies of liberalism reveal that they can't even imagine ever needing correction, and they act accordingly, preferring smears to rebuttals.

TGIF: Easy Cases May Make Bad Rules

Hard cases make bad law, an adage apparently coined before 1837 tells us. In other words, "an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases." Not everyone has agreed that this is the case, but we'll let that go. I just want to point out that easy cases also may make bad law, or at least bad rules.

Take the question of whether social networks should kick people off for saying things that other people find discomfiting, offensive, or "threatening" (with that word being used extremely loosely, having nothing to do with a physical threat). Leave aside that the networks are privately owned, however ominously close they may be to certain powerful politicians. I'm not talking about property rights here. That you have a right to do something does not mean that you ought to do it.

Is it generally desirable that Facebook, Twitter, and the rest don't operate on a complete "come one, come all" basis?  Many people say yes; they want to be assured that no one will enter their range of vision who will make them uncomfortable in one way or another. True, social-networking participants already can exclude participants they don't wish to see from their range of vision. But some want more than that: they want to keep everyone else from seeing the "offensive" participants.

But others think that having a very low bar, if any at all, for excluding participants undercuts the very point of social networking, the value of which lies in the easy availability of the widest range of opinions, analyses, and reporting of events. They relish free-wheeling conversation about anything while accepting the trade-off that some real jerks will make their unpleasant presence known. Those who favor a liberal admittance policy are satisfied with being able to block or ignore participants whom they find annoying or worse.

Considering the powerful practical case for free speech that John Stuart Mill put forth in On Liberty, it seems that erring on the side of liberal criteria in the social networks is the best way to go. Even jerks who are wrong about a matter can have something of value to say. A flawed criticism or an overlooked fact may prompt a worthwhile refinement of an already basically sound position.

Mill summed up his views when he wrote, "He who knows only his own side of the case, knows little of that." He went on:

His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. The rational position for him would be suspension of judgment, and unless he contents himself with that, he is either led by authority, or adopts, like the generality of the world, the side to which he feels most inclination. Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them. He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of truth which meets and removes that difficulty. [Emphasis added.]

I find that an unanswerable argument, though obviously I am committed to hearing the best arguments against it. Notice that Mill endorsed the principle of charity in writing that we should hear the strongest case from its own advocates and not from critics. That's called "steel-manning" these days in opposition to "straw-manning."

Now an obvious problem arises that relates to scarcity. No one has enough time to seek out and consume every bit of criticism of every position they hold. So we each have to pick and choose according to our priorities, doing the best we can with what we have.

However, none of that justifies restrictions on what a free-wheeling forum promises to be. Someone might challenge this view by asking what's wrong with excluding someone who does little more than threaten people with violence or ladle out disgusting slurs of one kind or another. To which I would respond that I wouldn't be upset if a person who presents such an easy case were excluded. (The criminal law already addresses specific threats to identifiable persons.) But caution is in order. The slippery slope is real, so it's not only easy-case people who are at risk. It's also purveyors of alleged misinformation. Of course some stuff posted deserves that label, but it has also been applied to maverick opinions and factual accounts voiced by qualified people merely because their views clash with the position of government-anointed experts (who have their own agendas). Whether the social-network bigwigs believe in what they are doing or they just want to curry favor with the powerful, who needs that? Easy cases can indeed make bad rules.

At any rate, why should we have confidence that the people in charge of the social networks or their algorithms will confine their expulsions to only the most egregious cases? We already know better. What did Lord Acton say about power again? It goes for private power too.

What we must do is oppose government intervention because the politicians and regulators will likely defer to the corporate incumbents, and that means market entry will become even more difficult than it already is for innovative upstart competitors. The ideal is a wide range of choices so people who want no-holds-barred social networking can find it and those who want tamer environments can also have their way. Since people have different tastes, the market can have many winners.

TGIF: Defend the Enlightenment!

The libertarian philosophy is embedded in Enlightenment liberalism. This is clearly seen in its commitment to free inquiry (reason) and free speech, the full realization of which, I argue, requires complete respect for individual rights, including property rights.

Unfortunately we live at a time when those values are increasingly under assault from from a variety intellectuals and activists despite political and cultural differences among themselves. We hear prominent people ask--and it's really an assertion disguised as a question--whether free inquiry and free speech are really all they have been cracked up to be in light of the American condition. This seems to be a change even from the recent past, when question like that would likely come only from the most authoritarian fringes of the left and right.

Advocates of individual liberty and the rich patterns of cooperation that liberty generates have reason worry. Nothing good would be gained from restrictions on those Enlightenment values--regardless of whether the restrictions came from the government or private sources. Nothing good at all.

Whatever one's fears about the state of American culture, it is difficult to see how stifling inquiry and speech could improve matters. Whether one is a left-collectivist who believes Enlightenment values lock in white male supremacy or a right-collectivist who believes those values have allowed the left to control the culture's commanding heights, the crushing of true liberalism can only lead to disaster, eventually for everyone.

You need not be a libertarian to see the point, and fortunately we see nonlibertarians all around the political spectrum expressing dismay about the new disparagement of free-wheeling inquiry and uninhibited expression of its findings.

This is not rocket science. Squelching speech does not make alleged bad thoughts go away. On the contrary, it may give them an illusion of legitimacy they would never have achieved in open discussion. When a subject becomes taboo, even good-faith people may reasonably ask, "What are the self-appointed censors so scared of? Does the forbidden claim have merit that I've overlooked?" How does that help the censors beat back ideas?

The value of the open competitive marketplace of ideas is so obvious that it ought not require repeating. We learn through the contest among ideas. The way to defeat an assertion is not to suppress it, but to rebut it. No idea is so dangerous that it has to be banned from the marketplace. A free society cannot tolerate thought police, whether political or private.

To cherish the intellectual marketplace, one only need realize that even someone who is thoroughly wrong about a particular matter or event (and perhaps even ill-intentioned) could contribute to our knowledge by stumbling on an overlooked truth. We just never known who might be the one to set the record straight in some way. (The leftist Norman Finkelstein has admirably made this point many times.)

Moreover, it's important that the intellectual marketplace--like the commercial marketplace and for the same reasons--not be rigged by the state in any way. All intellectual products should have to compete in a just (that is, rights-respecting) arena. Force is to be barred. But that's all that needs barring. Now may the best ideas win.

This does not mean that the common-sense rules of respect needn't be observed or that those who violate the rules should never be called to account. But it does mean that toleration is also a virtue when directed at offenders. We are rightly uncomfortable when people lose their livelihoods for saying the "wrong" thing in the "wrong" way. It is difficult to confine this kind of punishment to only the worst offenders. Boomerangs have a way of coming back at you.

Does an open marketplace guarantee that the truth always always wins right away? Of course not. But it's the best chance we have of rooting out error in the shortest time. The market certainly beats any imaginable alternative, which would have to be one form or another of authoritarianism. No thank you.

It's in the nature of ideas, as with all tools, that they can be used for good or ill. Stifling discussion because bad people may capitalize on fact can hardly be grounds for shutting down the intellectual marketplace. One could think of no surer example of the cure being worse than the alleged disease.

It's time for all true liberals, whatever their differences, unite to defend free inquiry and free speech.

Free Speech Is Sadly Controversial

In the topsy-turvy world we live in, this otherwise unremarkable letter calling for respect for free speech, published in Harper's and signed by 153 writers, etc., has set off a nasty firestorm of statist-left criticism. It seems that some people are so insecure about what they think and who they are that they cannot tolerate a world in which others are free to say and write what they like. The hell with that. I'll take John Stuart Mill.

Price-Gouging Laws Violate the First Amendment

Laws against so-called price gouging -- that is, price spikes during emergencies -- violate our natural right to engage in voluntary exchange at mutually acceptable terms. As economics has long taught, price ceilings that defy market forces make the affected goods vanish from the market. Instead of a product being available at a price more-than-X, it is instead unavailable at a price less-than-X. Small comfort for the consumer. (Try to find masks and hand sanitizer on ebay or at the supermarket.)

Here's another way to look at those laws: they violate freedom of speech (expression) and hence the First Amendment. Civil libertarians should be up in arms.

How can those laws violate the First Amendment? It is rather simple. The market's price system is a communications process, a means of expression. In the market, people's demonstrated preferences with respect to scarce resources are translated into highly usable information in the form of prices. Typically, when the quantity demanded for something rises, so does the price tend to rise. (Other things equal, as the economists say.) And vice versa. Adam Smith explained this beautifully in The Wealth of Nations. (See my article "The Market Is a Beautiful Thing.") Through the price system consumers (without realizing it) tell producers what to produce and in what quantity. And producers use it to tell us when we need to economize (that is, buy the product only for our subjectively most important purposes, leaving some for others). This is important because we live in a world of scarcity. To produce more of good A, we might need to produce less of good B. If we want the market to be sensitive to consumers' priorities, we'll want the price system to be free of political and bureaucratic molestation. It's as simple as that.

It follows, then, that if price controls -- such as law against so-called gouging -- are enforced, our voices are muffled if not silenced. That violates our freedom of expression and thus the First Amendment. When the price of hand sanitizer is bid up during a pandemic, the higher price is like a broadcast summoning producers to bring more product to the market. Laws against price spikes are like the gagging of consumers. It's true that empty shelves are also a form of communication, but unfortunately, price controls also remove the incentive for people to produce more of the goods that are suddenly in short supply. Prices are the irreplaceable tool of economic calculation, as Ludwig von Mises spelled out a century ago in his case against central planning.

No good comes from stifling the market -- that is, from interfering with peaceful cooperation.

TGIF: Spinoza – A Man for Our Troubled Times

In these interesting times, we all need someone to admire. I have found such a one in Benedict de Spinoza (1632-1677), the 17th-century rationalist liberal philosopher who advocated freedom of thought and expression, toleration, and simple kindness.

Read TGIF at The Libertarian Institute.

TGIF (The Goal Is Freedom) appears on Fridays. Sheldon Richman, author of America's Counter-Revolution: The Constitution Revisited, keeps the blog Free Association and is executive editor of The Libertarian Institute. He is also a senior fellow and chair of the trustees of the Center for a Stateless Society and a contributing editor at Antiwar.com.

Become a Free Association patron today!

The Biggest Gaffe at the White House Correspondents' Dinner

During his monologue At the White House Correspondents' Dinner, comedian Hasan Minhaj criticized Donald Trump for not understanding the First Amendment -- and in doing so, showed he -- Minhaj -- does not understand the First Amendment. He said:

“The man who tweets everything the enters his head, refuses to acknowledge the amendment that allows him to do it.”

No, the amendment does not allow him or us to do anything. In theory it does nothing more than recognize a natural right to freedom that exists independent of the Constitution and of the state.

I've yet to hear that anyone in the media, which so reveres the First Amendment, corrected Minjah.

Reason.com Subpoenaed over Anonymous Comments

The U.S. Justice Department has issued a grand jury subpoena to Reason.com in an attempt to identify anonymous commenters at the website who allegedly threatened the judge who sentenced Silk Road operator Ross Ulbricht. According to Wired:

The subpoena calls for Reason.com to hand over data about the six users, including their IP addresses, account information, phone numbers, email addresses, billing information, and devices associated with them. And it cites a section of the United States criminal code that forbids “mailing threatening communications.” When those communications threaten a federal judge, they constitute a felony punishable by as much as 10 years in prison. (The average internet user has no such protection.)

The DOJ letter that went along with the subpoena said:

The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party.

Is that a request or a gag order?

Wired notes that the "subpoena letter [was] obtained and published by blogger Ken White."

Reason.com has no comment.

The comments at issue, which have apparently been removed, suggested that the judge, Katherine Forrest, be shot for sentencing Ulbricht, 31, to life in prison without parole for operating a black-market website at which illegal drugs allegedly were bought and sold.

Will the government get away with this?

See Ilya Somin's comment here.

The French Commitment to Free Expression

Well worth reading:

"France Arrests A Comedian for His Facebook Comments, Showing The Sham of The West’s 'Free Speech' Celebration," by Glenn Greenwald

"The Propaganda War: The Horror of the Paris Rally," by Arthur Silber

Je ne suis pas Charlie

Yes, there is no right not to be offended. But that doesn't mean there is a corollary obligation to offend.

Recommended reading: "Why I Am Not Charlie," by Scott Long;  "Trolls and Martyrdom: Je Ne Suis Pas Charlie," by Arthur Chu; and "In Solidarity with a Free Press: Some More Blasphemous Cartoons," by Glenn Greenwald.