Enhanced free speech

A radical experiment

A company calling itself Enhanced Games recently announced a new competition to be held next year in Las Vegas. The event will be modeled on the Olympic Games with one important difference: athletes will be allowed to use performance-enhancing drugs prohibited in the actual Olympics. The company's founder, Aron D’Souza, explained that the goal is to probe the limits of what humans can accomplish. "We are here to move humanity forward," he said. "The old rules didn't just hold back athletes, they held back humanity."

Time will tell whether the idea catches on. One reason to think it won't is that many spectators at athletic contests like to imagine themselves being out on the field. This is already a stretch at the highest level. It will be even more so if the athletes are bulked up by PEDs.

But this no-holds-barred approach to something familiar might be applied in another arena. The United States is an outlier among nations in the protections it gives to freedom of speech. In most other countries speech and writing are more constrained by law than in America.

But even here free speech has encountered barriers. For a century after the Bill of Rights was added to the Constitution, the First Amendment did not apply to the states, which could and did outlaw various kinds of speech, involving blasphemy for instance. Today obscenity laws criminalize certain forms of expression, such as pornography involving children. Sedition laws imprisoned editors in the 18th century and antiwar activists in the 20th.

But the most effective restraints on speech lie outside the criminal law. People have to make a living, and when their jobs include restraints on speech, those restraints can be as effective as any law. Teachers and writers lost their jobs for voicing liberal views during the anticommunist red scares that followed World War I and World War II. Five years ago people got fired for questioning progressive truisms on race and gender. Today they get fired for embracing those truisms and for speech that falls within a broad definition of antisemitism.

This raises a basic question. For all the lip service we give the First Amendment, does anybody in America really believe in free speech?

Would anyone be willing to try an experiment in radical free speech, in which nothing was disallowed by law or custom?

The easy part of the experiment — or rather the straightforward part of the experiment — would involve laws. The Supreme Court could disallow laws that restrain speech in any way. Or all such laws could be repealed. Pornography laws would go away. Libel laws, which still exist in some states, would vanish. The guiding principle would be that no one would be prosecuted for saying or writing anything, however upsetting or offensive it might be to other people.

The harder part of the experiment would be to change cultural norms that hold people accountable for their opinions even when those opinions are not criminal. Most employment in the United States is at-will, meaning employers can dismiss workers at the employers’ discretion. A few limits exist. A worker cannot be fired for organizing a union in a workplace. Workers can't be fired simply for being old or women or black. But nothing prevents most employers from firing workers for expressing unpopular opinions.

Employers who do fire workers for this reason aren’t necessarily being narrow-minded or mean-spirited. They might simply be worried about the success of their businesses. Hollywood studio executives who blacklisted screenwriters in the 1950s might or might not have disagreed with the leftist political views of the screenwriters. But they worried, not without reason, that their movies would be boycotted if they didn't let the lefties go. Owners of teams in the National Football League might or might not have disagreed with Colin Kaepernick's critique of structural racism in the United States. But they feared, with reason, that the politicization of NFL games would alienate fans. For this reason if no others, none wanted to be associated with Kaepernick and eventually none offered him a contract.

The fault lay less with the studio executives and the football owners, who in their capacity as capitalists couldn’t be expected to sacrifice profits to civil liberties, than with their customers, who appeared unable or unwilling to distinguish work product from extraneous political opinion.

The conflation has grown only worse. A generation brought up on the principle of “see something, say something" and more recently bombarded with “silence is violence" feels obliged to render judgment, if only to forestall being judged themselves. Individuals and institutions that had nothing to do with the killing of George Floyd felt compelled to weigh in on racism in America. Individuals and institutions with neither responsibility for nor expertise in Middle Eastern affairs have felt the need to take a position on the Gaza war. In such an atmosphere, people have been expected to take positions on the positions taken by others. Failing to shout down a speaker with whom one disagreed was perceived as a dereliction of moral duty.

A few people and institutions recognized that this position is unsustainable. Some universities, for example, have forsworn comment on issues not directly related to their educational and research missions.

This ought to go further, and it could do so as part of the radical experiment in free speech. It would be reinforced by a clearer distinction between opinion and action. The default response to discovery that someone is a racist, a misogynist, a homophobe, an antisemite or a holder of other views the discoverer considers odious ought to be “so what?" Let people think what they want to think and say what they want to say. Only when they take injurious action should it be the concern of anyone else.

But won't odious views thereby be encouraged?

The question should be reversed. Is there any evidence that organized disapproval has made racism less common? Have German laws against Holocaust denial prevented the emergence of far-right politicians in that country? If anything, attempts to suppress unpopular views make them more appealing to the people likely to hold them.

In any case, the problem isn't odious views. At least, that shouldn't be the problem in a free country. The problem is criminal action, when such action occurs. Deal with the action. Leave the thoughts alone.

Let the bad thoughts slug it out with the good thoughts. Only by this means will we be able to tell one from the other.

Let the enhanced free speech games begin.