Liberty in the crosshairs

‘We’re restricting freedoms, but it’s for the common good,’ and other things governments are saying

In December 1791, the Bill of Rights was ratified by the United States. Though these 10 amendments to the Constitution are rarely mentioned after high school civics class, recent events here and abroad offer a glimpse of life without those rights and a reminder why they are so important as a defense against ideological overreach.

If a proposed new law passes the legislative process in Ireland, the famous Irish gift of gab will require government approval. As Kristen Waggoner of Alliance Defending Freedom recently noted in Newsweek, this potential restriction is, at best, vague. Even though it targets “hate,” it never defines what “hate” is.

As she put it, “How is the public to know what kind of speech could be subject to prosecution? Given that ‘hate’ is an impossible word to define in law (and is not defined in this bill), this paves the way for basically any expression considered unfavorable to be prosecuted in the future.”

Vagueness in a national law is, in practice, an open invitation for state-based abuse, yet that is not this particular law’s only problem. If it goes forward, refusing to give the police your password if they have a search warrant will be treated as a crime, and merely possessing material that “is likely to incite violence or hatred” might get you two years in jail. In other words, according to this proposed law, a crime doesn’t even have to involve actually hating anyone or saying something that could be hateful. Anything that the powers-that-be think could possibly be interpreted as hateful would be sufficient. It’s no wonder Waggoner added, “[I]t’s not hard to imagine Ireland rapidly descending into an authoritarian state with the passage of this law.”

Back in June, Pauline O’Reilly of the Green Party defended the proposed law with a line directly out of the totalitarian playbook: “We are restricting freedom, but we’re doing it for the common good.” This would include curtailing rights guaranteed in the Irish constitution “if people’s views on others cause them deep discomfort.” Again, under this view, no crime has to be committed, if someone is caused “deep discomfort.” This kind of scrutiny will, of course, target some and not others. To paraphrase George Orwell’s great line from “Animal Farm,” all discomfort is equally wrong, but some are more equal than others.

The way this inverted logic most often plays out is by the argument that not all speech is protected speech. Typically, this reasoning is followed by the necessary caveat, “After all, you can’t yell fire in a theater!” This logicalsounding and necessary exception, however, becomes less exceptional when it is applied to more and more speech that a select few deem dangerous. In practice, at least in the United States, appeals to burning theaters have rarely, if ever, held up in court. As Jeff Kosseff notes in his new book “Liar in a Crowded Theater,” “[O]ne reason that a wider swath of false speech does not fall within an exception to the First Amendment is because regulation is simply not terribly effective at achieving the government’s goals.”

The First Amendment has, so far, been an effective barrier against unnecessary limits on freedoms, even when done “for our good.” On the other hand, situations in European countries that lack anything like our First Amendment, not to mention the selective censorship at America’s elite universities, expose how much can go wrong when there’s nothing to limit the people in power from acting for our own good.

As C.S. Lewis put it in “God in the Dock”: “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.”

The reason that the speech protections of the First Amendment, with its guarantees of liberty of conscience, do not exclude speech that is merely offensive is that inoffensive speech doesn’t need protection. By allowing potentially and even truly wrong things to be said, the Bill of Rights ensures space for the truth to be heard, and for those committed to truth to make the case for it.

“[O]ne reason that a wider swath of false speech does not fall within an exception to the First Amendment is because regulation is simply not terribly effective at achieving the government’s goals.” —JEFF KOSSEFF, IN “LIAR IN A CROWDED THEATER”

From Breakpoint, Dec. 21, 2023; reprinted by permission of the Colson Center, breakpoint.org.