Journal of Free Speech Law: "Should We Trust the Censor?," by Keith E. Whittington

The article is here; the Introduction:

In designing and adopting any regulatory scheme, there are two separate but important decisions to make. First, of course, we must decide on the substantive rules or standards that will govern the behavior to be regulated. This is often the most visible and contentious decision to make. Setting out the rule to be enforced is generally viewed as tantamount to setting the policy itself. But there is a second decision that must also be made, perhaps even more consequential than the first. Once we know what rule will be enforced, we must decide who will be empowered to interpret and enforce that rule. After we design the regulation, we must design the regulator. Rules are not usually self-enforcing. Someone will have to determine whether the rule has been violated and what to do in the case of violations. Those two decisions are critical to the success and significance of any regulatory scheme.

In this regard, the regulation of speech is no different than any other regulatory scheme. Changing the context of speech regulation does not change the dilemma. When we lay down a rule about what kinds of speech should be forbidden, we must also decide who will interpret and enforce that rule. Who will decide whether the rule is violated by a particular utterance and therefore whether the speech in question should be suppressed, or the speaker punished?

Moreover, such issues arise whenever we seek to regulate speech. If the government wants to prohibit some speech, it will need a process of enforcing that law or administrative regulation. If the government wants to criminalize “terroristic threats,” it will need both to specify the rule against such threats and to rely on a criminal justice process for investigating and prosecuting those who make such threats. If Congress wants to exclude from federal trademark protection marks that are “scandalous” or disparaging, it will need to articulate the exception to trademark law and empower a government official to review trademark proposals and reject those that violate the rule. If the comment section of an online journal excludes some kinds of posts, the publisher will need to specify a rule explaining what content is prohibited and designate a moderator to review and delete posts that potentially offend the rule.

A great deal of theoretical argument on speech restrictions is understandably focused on the substance of potential limitations on speech. The substantive rule is where principled distinctions are drawn and where justifications for or against tolerating some types of speech can be developed. If we want to restrict speech, we need to take great care to ensure that we are restricting the right speech and for the right reasons. Constitutional doctrine and normative theory are focused on such questions as the circumstances in which false speech should be forbidden, how to distinguish obscenity from pornography, and how to distinguish fair use from copyright infringement. Most of our arguments about whether a specific kind of speech should be restricted turn on the question of whether restricting that speech would be a good idea. Does the speech in question have a high or low social value? Does the speech in question cause harms, and if so, how substantial and of what nature? Will censorship make us worse off? Should we rely on the marketplace of ideas to winnow the true from the false, or do we need the thoughtful assistance of the censor?

Those substantive debates on speech restrictions often take the implementation and enforcement of any restrictions for granted. This is understandable but a mistake. The implementation process might pass without remark simply because, at least in broad brush strokes, we think that those decisions are already fixed. If we are debating possible exceptions to the First Amendment to the U.S. Constitution, we are effectively debating how the Supreme Court ought to interpret the First Amendment, and what kinds of legal limits on speech the justices should accept. It is tempting to think that if we can just agree on the acceptable limits on speech, then the implementation of those limits would take care of itself. The details of the enforcement process might seem irrelevant to whether we think a particular type of speech should be outlawed.

I am persuaded, to some degree, by all three of the common liberal defenses of robust speech protections. Free speech is essential to the identification of the truth and the advancement of knowledge, which is particularly relevant to thinking about the scope of speech protections in an academic context. The tolerance of dissent is critical to allowing democratic processes to function, which is especially important in the context of political speech. And free expression is important to respecting human dignity and autonomy, which has particular salience in the context of artistic expression.

Those arguments are important, but they are ultimately not decisive for me. At the very core of my own skepticism about speech restrictions is distrust of those who would wield the power to suppress speech. Even if I were completely convinced that some particular type of speech is of low value and generally harmful, I would be extremely reluctant to agree to a rule prohibiting that speech because I have little faith that speech restrictions would be applied in a manner that did not have serious social costs. Censors would likely be overly aggressive in enforcing speech restrictions and biased in what they judge to be intolerable speech. It is precisely in the context of controversial speech that we will find it difficult to reach uncontroversial conclusions about whether a particular example of speech is beyond the pale. As James Madison pointed out, “if angels were to govern men, neither external nor internal controls on government would be necessary”; but the great problem with “framing a government which is to be administered by men over men” is that “you must first enable the government to control the governed; and in the next place oblige it to control itself.” Obliging the government to control itself has been particularly challenging in the context of freedom of speech. Even if we could design the ideal speech code, we should not have much faith that it would be implemented in an ideal way.

For me, those concerns about who will watch the watchmen create a very strong presumption against any significant restriction on speech. The long struggle to expand freedom of speech has been to an important degree the result of a dawning realization that censors cannot be trusted and thus the scope of their authority had to be significantly narrowed. I have often found that those who favor more restrictions on the freedom of speech also tend to have more confidence about how those rules will be implemented. If we do not need to worry about the second problem, the problem of implementation, then it becomes easier to imagine that desirable rules might be developed. Those who have faith in administrators tend also to be more willing to endorse speech codes than I am. Even when I can agree that a given example of speech is a net loss for society, I am much more reluctant to take the further step of empowering someone to limit such speech. If I am asked whether we must tolerate the speech of Nazis, I am not overly concerned about the possibility that Nazis might have interesting or illuminating things to say, but I am quite concerned that building the machinery of censorship to suppress the speech of Nazis will prove threatening to speech that is valuable. I would share the view that it would be unfortunate if my fellow citizens found Nazis to be persuasive, but I have trouble imagining who I might trust to make determinations as to which ideas my fellow citizens should be allowed to hear and assess.

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