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Prior Restraint and Compelled Speech

Prior Restraint and Compelled Speech

The First Amendment is not what a lot of people think it is.

In fact, “the Freedom of Speech” doesn’t mean what a most people imagine it means, though its interpretation has shifted over time. Prior to 1919, the Freedom of Speech had a very clear and technical meaning which was that the government could not prevent you from saying something. The Freedom of Speech was another name for “prior restraint,” or rather, the prohibition of prior restraint. The government was totally within its jurisdiction to punish someone for what they say, but only after they’ve already said it, not before. They are not permitted to play Minority Report and prevent future word-crimes.

It was on this point that the late Christopher Hitchens defended David Irving, the British revisionist historian who was imprisoned in Austria for challenging orthodox beliefs about the holocaust:

One of the proudest moments of my life — that’s to say in the recent past — has been defending the British historian David Irving who is now in prison in Austria for nothing more than the potential of uttering an unwelcome thought on Austrian soil. He didn’t actually say anything in Austria. He wasn’t even accused of saying anything; he was accused of ‘perhaps planning to say something’ that violated an Austrian law that says ‘only one version of the Second World War may be taught in our brave little Tyrolian Republic’… the Republic that gave us Kurt Valdheim, as Secretary General of the United Nations, a man wanted in several countries for war crimes; you know, the country that has Jorg Haider, the leader of its own fascist party, in the cabinet that sent David Irving to jail.

But there is one thing which the Freedom of Speech defends even more strenuously than protection against prior restraint, almost as a given, a protection which symbolically undergirds the entire principle of the American constitution. That is the prohibition against compelled speech.

Compelled speech is exactly as it sounds: mandated expression. The government cannot compel anyone to affirm or denounce any statement of fact or values contrary to their own conscience.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Justice Robert Jackson, 1943

But what we are seeing today — in relation to the Black Lives Matter riots — is a clear campaign to violate both of these principle protections, restraining the speech of opposing political views, and mandating the affirmation of certain beliefs and values.

People have been aware of “shadow-banning” and “throttling” for several years now; it is sort of an open secret of the social media world. But more recently, there is no longer the pretense of secrecy. Facebook is blocking hashtags related to Kyle Rittenhouse, the young lifeguard-turned-medic who shot several protesters that attempted to attack him in Kenosha, WI. They are even blocking #savethechildren, a hashtag which has emerged in the aftermath of the discovery of an alarmingly broad ring of pedophile trafficking in the United States (Jeffrey Epstein, Hollywood exposés, and recent stories like this: 39 missing children discovered in Georgia).

Prior restraint is clearly in effect.

More troubling still is the functional implementation of compelled speech.

Last week, Black Lives Matter protesters entered a diner and told everyone to put their fists up in solidarity. One woman, who did not comply, was surrounded and screamed at by the black-clad mob. Their main refrain: “white silence is violence.”

There is perhaps no better distillation of the encouragement of compelled speech than the equation of silence and violence. Violence is taken as a legal justification for self-defense, and so if silence — i.e., not affirming the compelled doctrine — is equated with violence, than the phrase “silence is violence” is a preemptive justification for “retributive” violence against those who are silent, who do not repeat the mandated ideas.

Walking around Seattle, one can see the Black Lives Matter signs everywhere. But perhaps there is a kind of fear in this affirmation? When the sword of Damocles hangs over the head of the speaker, one never knows how sincere he is being. Does he truly believe what he is saying? Or is he just trying to protect his own skin?

I have no doubt that most of the signs up are sincere expressions of truly held faith in the virtues of diversity, racial equality, and other values of progressivism. But we we have clear proof now that there is a heavy price to pay for insufficiently signalling one’s support for these values.

But let us return to the First Amendment, which is a prohibition on government overreach. Where is the government in Twitter’s shadowbanning? Where is the government in Antifa and BLM’s rioting?

At the time that the Constitution was written, the government was the most powerful institution in America. It had the monopoly of force, and no other institution — not the larger businesses, not the newspapers, not the church — could compete with its influence in political and social affairs. But today, the media and international companies have resources, communication, and networking that puts them in competition with governments, in terms of their ability to influence the political dynamic and mood of the country. They have immense power… but unlike the state, it does not have these constraints upon its power.

Competitive powers with the state were once at least restrained by the law itself; one could not force someone to speak without tacitly threatening assault, and assault happens to be illegal. Regular citizens simply lack the legal authority and physical back-up to make those kinds of demands. But in a world where these subversive organizations are sophisticated enough to evade the arm of the law, or have infiltrated the state to the point where the state officials can simply tell police not to enforce the law:

According to the report, as brawling first broke out, Thomas said: “Let them fight, it will make it easier to declare an unlawful assembly.”

After-report on Unite the Right rally in Charlottesville

In Charlottesville, in Seattle, in Portland, and in Berkeley, law enforcement agents have variously been instructed to step back and let violence happen. Antifa who get arrested for clear violence are often let off without charges. Even Eric Clanton, the infamous bike lock attacker who was identified by online 4chan sleuths, got off with a simple probation. This throttling of law enforcement seems to happen more often on college campuses, but with Black Lives Matter throngs moving into the suburbs and law enforcement agents telling citizens “good luck, you’re on your own,” it’s no longer limited purely to the urban hubs of progressivism.

And — as Mark and Patricia McCloskey found out — you’ll be prosecuted if you bother to defend yourself from these violent thugs.

What we have is a situation in which the First Amendment is not so much being violated as it is proved to be irrelevant. The protections against government power are no longer the guarantees of freedom that they once were, because governmental forces are no longer the primary threat to individual freedom. The Constitution is not outdated, but it seems to have become obsolete due to the very asymmetries created to constrain its power.

The irony, of course, is that many of these non-governmental organizations directly support overt political causes. As of this writing, for example, following the Black Lives Matter website’s “donate” button takes you to a different URL belonging to ActBlue, a generic fundraising platform for the Democratic party. But at this point, its the organizations using the government more than it is the other way around. We’re still caught in this trap where the “freedoms” guaranteed to us by the Constitution feel pretty hollow because the government isn’t the one endangering them. Our protections are against the wrong threat.

Aside from wishing for some kind of “new Constitution” — an addition to our current document, constraining the powers of international corporations in a manner similar to our own state — there really isn’t much recourse to this new state of things. In old times, the correct course would be to declare a revolution and overthrow the tyrannical regime. But now, the government — who isn’t exactly the problem — still holds monopoly of force, and if an insurrection were declared against Facebook and Google, the government would simply side with the tech giants (not that such tech giants would necessarily need the government’s help keeping things controlled anyhow).

I think we have to begin coming to terms with the fact that in the current order, the Constitution — including the First Amendment — is largely irrelevant. Some of the other Amendments (including the Second) are slightly safer for now, but there will no doubt be more of a push against those soon too. We are headed into open waters, without clear rules or laws that can be trusted. A solution to this problem may present itself down the road, and a functional protection of free speech (prior restraint + compelled speech) may be reestablished.

But for that to happen, the current state of things has to be accepted. You can’t win a war if you don’t believe you’re in one.

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