The argument goes that free speech is only worth preserving and protecting if it produces something worth achieving.  That something is often “Truth”. 

Professor of the First Amendment at Harvard University, Frederick Schauer argues that:

“Just as Adam Smith’s ‘invisible hand’ will ensure that the best products emerge from free competition, so too will an invisible hand ensure that the best ideas emerge when all opinions are permitted freely to compete”. 

Not only will the best ideas emerge in such an environment, but competition will ensure that, from those best ideas, the truest ideas will win acceptance by the largest sector of society. 

Truth is understood here in its widest sense – not just as an absolute certainty which may be known a priori (such as 2+2=4 or ‘all bachelors are unmarried’), but also as a truth which can only be known a posteriori or from experience (such as ‘the sun will rise every morning’) and as a truth which is no more than a normative or ethical statement (such as ‘ killing people is wrong’).  It is a theory which appeals to the relativist more than to the believer.

Conceived thus, free speech is not an end in itself, but only a means to an end.  It becomes the process by which truth is obtained and as such is worth protecting – the Free Speech Principle.

The Free Speech Principle can only be justified if it can be shown that Truth does indeed make itself known from the competition of ideas.  In the “marketplace of ideas” we, hopefully, will adopt rationally the belief that is most likely to be true, the belief that has survived attacks from other competing beliefs.

Schauer worries that this optimism is misplaced because unless Truth has some intrinsic quality which makes it stand out from Falsity, there seems to be no logical reason why Truth should be chosen above falsehoods.  While it may be the case that rationality in an academic environment is capable of persuasively producing truth

“history provides too many examples of falsity triumphant over truth to justify the assertion that truth will inevitably prevail”

and, moreover “generally, but not always, the expression of unsound opinion causes greater harm than the expression of sound opinions”.  Equally, where there is no opportunity to consider many different opinions, the argument from truth for a Free Speech Principle fails. 

Different values may be given to the Free Speech Principle.  It may be accorded supremacy so that no other principle can trump it.  The “strong” version of the principle affords “Truth” a position that is unassailable.

Alternatively, in the “weak” version, the principle may be weighed against the potential harm that the free speech may cause, or against other principles.  This second weak version allows for the possibility that free speech may be suppressed.

The weak view of free speech will weigh up the harm of allowing the expression of a pro-Nazi view and, for example, the rights of others not to be offended, and may conclude that there is no benefit to truth that is worth protecting. 

An alternative argument for free speech is from democracy – that we all have an equal right to say what we want to say, irrespective of the merits of its content and without regard to the truth.  Once again, there may be a “strong” version, and a “weak” version.

The European Court of Human Rights in a famous judgment, Handyside, said this:

“Freedom of expression constitutes one of the essential foundations of a [democratic] society, one of the basic conditions for its progress and for the development of every man … it is applicable not only to “information” and “ideas” that are favourably received or regarded as inoffensive but also to those that offend, shock or disturb the state or any sector of the population.  Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.”

But it is a weak view, because not only are there are exceptions, but other rights (than free speech) will trump a claim to have the right to speak freely.  Exceptions include instances where it is reasonable to suppress free speech for national security reasons, for the prevention of crime, or for the protection of the reputation or the rights of other people.  UK case law shows that other rights – such as the right to a private and family life – may take precedence over the free speech right.

Which brings me back to An Inconvenient Truth …

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