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More Bill of Rights

A commenter on the Bill of Rights thread reckons my current wording is open to abuse. At the moment it reads as follows:


No law or regulation is permitted that restricts the right to freedom of speech or limits the freedom of the media.

The theory is that speech needs to be defined, and I can see the point. While the US courts have adopted a wide definition of speech (covering writing and other media) it is probably wise to make that clear. I think we might adopt something along the lines of "the free exchange of information, opinion and ideas". Information covers us on fact, opinion on things which are less settled, and ideas on the purely speculative.


The other area which is problematic is the extent to which the clause should cover commercial speech. The US Constitution is silent on this aspect, but the courts have found that while commercial speech is covered by the first amendment, the protections are less than those offered to non-commercial. Essentially speech regarding illegal products is out, as is deceptive speech.

Speech regarding illegal products seems a bit of a red-herring to me. You are hardly going to advertise your cocaine prices because it points the police straight to you. 

Deception is different though. This is potentially a very risky area, since one man's "deceptive" is another's "true".

A thought occurs to me as to how we might get out of this, though. Since commercial speech forms part of a contract - the requirement to refrain from statements which are deceptive is contained in the common law. I wonder if we can distinguish between laws (written) and the common law (unwritten) in such a way as to prevent government from making laws that breach the principle of free speech and allowing common law to protect consumers.

So here's a revised suggestion:

Government shall make no law or regulation that restricts the free exchange of information, opinion and ideas, or limits the freedom of the media.

I've been planning a separate document on interpretation, and I think that this will be the place to make it clear that this does exactly what it says - ie it protects all speech including commercial speech.

So. What do you think? 

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Reader Comments (7)

Ah, but now you have to define 'information', 'opinions' and 'ideas'. Your clarification has actually introduced greater complexity. As P.J. O'Rourke put it: "Our Founding Fathers lacked the special literary skills with which modern writers on the subject of government are so richly endowed. When they wrote the Declaration of Independence, the Constitution, and the Bill of Rights, they found themselves more or less forced to come to the point. So clumsy of thought and pen were the Founders that even today, seven generations later, we can tell what they were talking about."

We know what you mean by "freedom of speech". If you think it might be interpreted too narrowly to cover only verbal communication, you could substitute "freedom of expression", though if you read P.J.'s description of the Supreme Court's consideration of whether flag-burning is covered by the First Amendment, it's pretty clear (as one would hope) that serious legal minds are capable of understanding the intention of the original term. Further attempts to define it will lead to use of further terms that need to be defined and so on <i>ad infinitum</i> until, before you know it, you've got the European Constitutional Treaty.

You have allowed far more latitude to the media in ruling out any law or regulation that limits their freedom (of any description), than simply guaranteeing their freedom of speech. There are limits to everyone's freedom. As Justice William O. Douglas put it: "My freedom to move my fist must be limited by the proximity of your chin." The press deserve neither more nor less freedom than the rest of us.

Stick to the simple defence of freedom of speech/expression, add in a similar provision on freedom of movement, and you've got the necessary freedoms of the media pretty much covered - no need to give them more sweeping freedoms specifically.

The interesting questions to me are (a) whether this ought to go further - should it simply guarantee that the state will not pass laws restricting free speech, or should it provide that the state will defend people's freedom of speech, and (b) how does one reconcile free speech with defence against misrepresentation, not only in a commercial context, but also of a personal variety, e.g. libel and slander?

It is not only governments that can restrict freedom of speech. Black-shirts and their successors have often tried to prevent the expression of views contradictory to their own. Preventing people from coercing other people is one of the legitimate roles of government, I think we would agree. Should your Bill of Rights (if we have to have one) not provide for the broader protection of people against coercion either by government or by other people, other than for the limited purposes of defence of person, property and nation? Or is that too broad for a Bill of Rights? Should a Bill of Rights cover only those things that the state promises not to do?

On the question of misrepresentation, is it too simplistic to say that there should be no restrictions on what can be said, but that does not absolve people and organizations of responsibility for what they have said? Does protection of freedom of speech rule out legislating to provide legal redress against misrepresentation? If you choose, you can call me a liar in public, or claim that you have invented a perpetual motion machine, and you should not be prevented from doing so, but if I sue you for misrepresentation and you cannot defend your accusation or prove your claims, then you should be liable for the legal consequences.

Incidentally, I am aware of Murray Rothbard's arguments that the law should not provide for defence of reputation, as that would require an unwarranted restriction of one's freedom of speech, which, flowing from one's right of self-ownership, should not be infringed. This is a rare case where I think Murray was wrong, on practical and theoretical levels. As the Justice Douglas quote illustrates, there is no such thing as perfect freedom, even over movement of your body. We have to accept restrictions, and those restrictions apply where our action causes harm to others. Murray was inclined to think that it is only physical harm (to person or property) that counts, but it is clear that you can do actual, practical harm to somebody without physically harming either their person or their property. You can be ruined by a lie, if you do not have the opportunity to set the record straight, and you can be deprived of property by misrepresentation, without the perpetrator having to coerce you physically.

Murray's reasoning that the state should use coercion only to prevent physical coercion of others stemmed from his natural-law derivation of libertarian principles, and the right of self-ownership that is fundamental to that approach. This is getting into a big area, but in the question of whether classical-liberal philosophy should be derived from natural-law or utilitarian principles, I side firmly with the utilitarians. To the extent that there is any natural law, it seems to me that it is the law of the jungle. We humans have chosen to throw over that law by providing our own laws that make for better social cooperation, but whatever the nature of those laws, they exist for utilitarian purposes - because they serve us better than the absence of laws or the rule of the law of the jungle. I am with Mises, when he says that "the ultimate yardstick of justice is conduciveness to the preservation of social cooperation". From this flows the classical-liberal philosophy of politics and economics, because one can demonstrate that, by-and-large, the most effective means of achieving social cooperation is through the voluntary mechanism of free exchange, rather than through the coercive force of the state.

I only embark on this discursion, because I notice that the first item in your Bill of Rights is a statement of the right of self-ownership, so I assume you are a Rothbard, Rand and Hoppe fan. Right or wrong, the natural-law philosophy is controversial and unnecessary in this context. I would take it out.
Jul 28, 2007 at 3:07 AM | Unregistered Commenterbgp
OK, let's go for "freedom of expression" then, and take out the part about the media.

I agree with the point about responsibility for what is said. This ties in with my point about using common law to deal with areas like commercial misrepresentation (and likewise, libel).

I do think that the BoR should concentrate on restricting government. As I see it the Constitution as a whole (assuming we get one) should define what areas government is allowed to involve itself in. The Bill of Rights should define, within those areas, certain things it cannot do.
Jul 29, 2007 at 8:16 PM | Registered CommenterBishop Hill
"You can be ruined by a lie, if you do not have the opportunity to set the record straight, and you can be deprived of property by misrepresentation, without the perpetrator having to coerce you physically."

But are you ruined by the lie itself or by its general acceptance as truth?

One can make the reasonable assumption that in the absence of any restrictions on freedom of expression the number of occurrences of deliberate misrepresentation which were subsequently proved to be false would be so high as to severely curtail the tendency of the general populus to automatically accept such claims as truth.
Jul 31, 2007 at 11:15 AM | Unregistered CommenterGuido Faux
"But are you ruined by the lie itself or by its general acceptance as truth?"

Likewise, it's not the falling that kills you, it's the impact with the ground. One nevertheless tends to follow from the other, and it is easier to prevent the fall, than the impact once descent has begun.

"General acceptance" is a red-herring - you could be damaged by one person (e.g. your wife) believing the lie - but that is not the significant part of your point.

Reputation and trust are a vital part of human relations, social cooperation, and therefore economic progress (see, e.g. Robert Frank). We could go back to dueling to protect our honour, and closed networks as the basis of trust, but I don't think that would be progress.

I'm not sure it's a fair reading of human nature to think that, in the absence of constraint on misrepresentation, everyone will simply come to be more sceptical of and rational about all claims, as opposed to simply deciding who they believe on the basis of irrational factors, such as whether they like the way you look.
Jul 31, 2007 at 9:14 PM | Unregistered Commenterbgp
Nice analogy but not quite appropriate since the impact is non-negotiable.

I agree with you on reputation and trust but I don't think dueling and closed networks necessarily follow from unconstrained free speech. Spreading malicious gossip works both ways - there will always be the threat of retaliation to "prevent the fall". And surely any person consistently spreading false rumours would soon find themselves discredited in the eyes of the public? That's assuming they have any credibility in the first place.

Take blogging for example. I could right now set up a blog (lets call it "Guido Faux Fact File") and spread lies about any number of people and I could do it anonymously if I really tried. Do you think their friends/lovers/employees would take my word over theirs? I don't think so.

Besides if speech is truly free then they will always have an opportunity to respond and if people insist on forming opinions based on irrational factors then I'm afraid no amount of legislation is going to prevent that.

Aug 1, 2007 at 10:43 AM | Unregistered CommenterGuido Faux
Is it your experience that everyone has equal ability and opportunity to publicize their claims? We can all setup blogs, but can we get people to visit them? If you are "that" Guido (very difficult to know what's true on the web, isn't it?), let's say we have a row, and you put something on your site defamatory about me, and I put something on my site defamatory about you, who wins? The merits of the claims will have little to do with it. One of the purposes of the law is to allow the little guy to defend himself against the big guy (imperfectly, obviously, but less imperfectly than if there is no recourse). Otherwise, we revert to "might is right".
Aug 1, 2007 at 12:31 PM | Unregistered Commenterbgp

I agree that the part about the media should be taken out. It is dangerous, in my view, to mention a particular group, because it implies a special status. Natural rights are universal; the news industry have no right not possessed by everyone else. In America, the notion that the Constitution gives a special status to journalists seems to be widespread, especially among journalists. They think they are a fourth branch of government, superior to the other three. I am no expert on the Constitution, but I don’t read the First Amendment as refering to the news industry at all. Freedom of the press is analogous to freedom of speech, and belongs to everyone; the former merely applies the latter to the medium of print -- not the “print media.” Pamphleteering was a popular activity in those days. In other words, freedom of the press does not mean freedom of “the press.” Also, “limits the freedom of the media” to do what? Divulge state secrets? Trespass upon private property in order to get “the story?” Harass an innocent family whose relative has just been beheaded on the internet? All of which they have done, with de facto if not de jure immunity.

As to the meaning of freedom of speech, lies are not protected. The reason is simple: the purpose and effect of lies is the same as the purpose and effect of censorship (and physical coercion, for that matter); namely, to cause a person to act against his judgement. The meaning, purpose and validation of the concept of freedom, including freedom of speech (which is simply the application of freedom to the activity of communication), is to allow people to live for their own sake and by their own mind (and effort). Freedom to lie would be a gross contradiction. That is why falsely yelling fire in a crowded theatre is not covered by the principle of freedom of speech. What is a lie? The intentional, objectively provable misstatement of fact. Fraud or defamation, for example.

And commercial speech, in my view, is completely within the proper meaning of freedom of speech. There is no type of activity more important to human life and happiness than trade, which is nothing but voluntary exchange, and which obviously requires communication. Freedom of speech serves the same purpose in commerce as in any other area of human interaction, and impeding it cannot be justified.

Jan 2, 2011 at 7:50 AM | Unregistered Commenterbiff33

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