LEGILSATING AGAINST SOFT ATTACKS ON FREE SPEECH – PART II SERVICES

LEGILSATING AGAINST SOFT ATTACKS ON FREE SPEECH – PART II SERVICES

This is part 2 of a 3 part article about ‘Soft Attacks’ on free speech.  By ‘Soft Attacks’, I mean methods of curtailing free speech, other than via the criminal law or civil injunctions.  I am referring specifically to economic pressures that limit freedom of speech and arguments for legislating against this.  These are powerful pressures and thus the description ‘Soft Attacks’, is perhaps misleading.  Part 1 concerning employment, can be found here.

I repeat the reference to the teleological justification for free speech referred to in Part I, namely the free exchange of ideas that could lead to the betterment of mankind.  This should be borne in mind when deciding whether to regulate the provision of services to ensure that free speech is not unduly stifled.

Milton Freedman argued that a free market economy was the best way to guarantee political freedom.[1] A publisher, Freedman argues, cannot afford to only publish work with which he agrees and can only be influenced by the potential of the work earning him a profit.[2]

Yet he may to refuse to publish works that would be profitable to him for purely political reasons and still stay in business.  Freedman pre-supposes that commercial entities are only motivated by commercial factors.  There has been a recent trend in companies taking positions on controversial political matters, such as ‘homosexual marriage’, when commercially it would make sense for them to avoid staying into controversial subjects that have no bearing on their product.

This may, in many cases, be due to Saul Alinksy tactics[3] adopted by a vociferous minority but the issue still arises, of the free market being used for hegemonic purposes, where there is a broad consensus on certain political and ideological issues amongst the Government and large corporations.

Freedman strongly supports the ability to advocate for radical change in society.  He gives the examples of advocating for communism in a capitalist society and capitalism in a socialist society.  He asserts that the communist advocate in a capitalist society only needs to find one or a small number of individuals to fund his literature, whereas in the socialist society, the government who control all means of mass communication are unlikely to fund literature advocating for capitalism.[4]

Freedman is making an empirical assertion; there is no a priori argument to be made, that the socialist government could not in theory fund subversive material due to a principled commitment to free speech (he does acknowledge this possibility) or that one can always find a means of publishing a particular point of view to a mass audience in a capitalist society.  Of course, there is a half- way house, namely a free market economy that has specific regulation to safeguard the teleological justification for free speech – this is a no less important aim in my view than the aim of highly onerous regulations that are already in existence (consider for instance the new Data Protection Regulations – GDPR).

If there is no commercial entity that is prepared to allow a certain viewpoint to be expressed, then for this purpose, there is a monopoly.   Freedman advocated regulation against Monopolies as this frustrated the teleological justification of a free market.[5]

Indeed, economic actors who benefit from a monopoly can do more than simply refuse to allow certain viewpoints to be expressed via any media which they control.  Imagine if all the main commercial banks refused to provide certain individuals or organisations (particularly political parties) with a bank account.  Imagine further if various private companies refused to supply the most basic of goods such as food, or electricity to those same individuals or organisations.  The same persons or organisations in this scenario are also denied the means for mass communication, such as hosting for a website, or a social media account and therefore cannot tell others of their exclusion from the above.

Perhaps the persons or individuals could survive in this scenario, but they are unlikely to feel any obligation to obey the laws of the state that has at the very least, acquiesced to their predicament.  Arguably they would have no moral obligation to follow such laws.  They may resort to criminality and insurrection.  On the other hand, they may renounce their controversial views, which may or may not lead to their effective re-admittance into society.  If so, their ideas have not been defeated intellectually but have been stifled through economic pressure, which again frustrates the teleological justification for free speech.

If one argues that this is merely the free market in operation and the ideas in question are simply unpopular, then this is analogous to arguing that a businessman with a monopoly who can stifle any possible competition, is simply the best businessman.

All the above, leads me to conclude that there should be some regulation of the market, where there is clear evidence that the teleological justification for free speech is being frustrated.  This would involve services that could be regarded as essential, which would include means of mass communication and where there are monopolies, or at least relative monopolies, for these services.

I do not claim to know exactly what form this regulation would take, how “monopolies” or “essential services” would be defined and consequently, which real life companies should be regulated; I only seek to make the philosophical case for some regulation.  If, prima facie, one is in favour of an unfettered right of a business owner to refuse to provider their services, but advocates some exceptions to this, it is important to avoid an approach that is arbitrary, hypocritical or self-serving.  This can be done by clearly defining the exceptions and keeping their purpose in mind.

 

 

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[1] M Freedman ‘Capitalism & Freedom’ 40th Ed 2002 at Ch I

[2] Ibid at p17

[3] See ‘S Alinsky – ‘Rules for Radicals’ ‘1971’ & J Hedgpeth ‘Rules for Radicals Defeated’ 2012 – The first of the thirteen rules is that power is not only what you have but what the enemy thinks you have, the eighth rule is to keep the pressure on the target, the ninth rule is that the threat is often more powerful than the thing itself and the thirteenth is to isolate and personalise a target.  Alsinsky also talks about the importance of making the enemy react and not act.

[4] Op Cite at pp 16 & 17

[5] Ibid at Ch VIII