NOTE: A more up-to-date version of these thoughts is in the article The Freedom to Hear at my blog site.
In a discussion group recently (Feb, 2001), a friend forwarded this annoying spam disclaimer for discussion:
> Copyright 2000, 2001 > > Please NOTE: This advertisement is NOT sponsored by ANY > Internet Service Provider. This is an advertisement that is > produced and sponsored by CyberData for CyberData to reach > potential customers. > > Congress shall make no law respecting an establishment of > religion, or prohibiting the free exercise thereof, or > abridging the freedom of speech or of the press; or the right > of the people peaceably to assemble, and to petition the > Government for a redress of grievances. > > Amendment I, The US Constitution
I have developed for myself a test of the freedom of speech which I find helpful in this context: I call it the freedom to hear.
I think the Founding Fathers blew it when they wrote the First Amendment. They shouldn't have spoken of `free speech' but instead of `unfettered access to information' -- that is, `the right to hear'.
I don't think the core principle in a free society is your right to force me to hear what I have no interest in. Rather, I think it's my right as someone interested in hearing new ideas that no third party should quash the sound of someone who I have an interest in hearing.
The reason we have an interest in allowing unfettered speech in public forums is that it's hard to poll each and every person who now exists and might exist in the future to find out who will be intersted and who will not. In principle, if you had something to say and there did not exist a single interested person and you could somehow prove to me that none could ever exist, then it seems merciful, at least, that you be silenced. Certainly it is not your right to grab me by the hair and force me to listen.
So there you have it: Speech is not about imposing your message on another, it's only about making your message available to another. At the point where you're playing your music too loud or blocking my path to a building or any of a variety of other so-called speech acts, you're crossing the line. You're not exercising what I see as free speech, since you're not entertaining my need to hear, you're just force to invade my space.
There are two parties involved in a communication. If both are willing, it should proceed. But when there's a dispute, who wins? Using terms like "free speech" appears to give the favor to the speaker, which I don't think is right. I prefer the term "freedom to hear" because it gives final say back to the person who would be receiving the information.
Free speech is just a way of guaranteeing that we in a democracy have access to a free flow of ideas. It isn't supposed to be a way of forcing us to endure a free flow of anything. That's not freedom, it's slavery.
It seems to me that it's critically important in a democracy that the majority is able to hear about things that are not popular with that majority. That is how people change their minds. They take in information about less-popular ideas and consider whether to change their mind and admit new ideas.
In general, it's a good idea in those situations where we can't poll every single person in existence to assume that there must be some means by which any of those people has reasonable access to information that any other of those people wants to communicate. So that's again why so-called 'free speech' makes sense. But in the extreme, if there were some idea that actually no one wanted to hear, I think there is no right of a speaker to impose it. And when there area ideas which can be characterized in advance as unwanted, I think there is no right of a speaker to get past that stated preference not to hear. (Call it "the related right to be closed-minded", if you will.)
I find this formulation/doctrine (which I've admittedly just made up out of whole cloth) useful to resolve a number of otherwise puzzling "conflicts" in the first amendment. To continue with the previous example, what I think the first amendment means in this case is that Congress may not so restrict CyberData's message such that any citizen wanting access cannot obtain it. That's very different than saying that Congress may not enable me to block out a message. By my formulation, CyberData is spouting BS when it says it may not be infringed.
Another interesting case where this doctrine helps me is in thinking about questions like whether a murderer's biography should be published. Some say they should lose their right to speech. But law enforcers and psychologists and even just bored couch potatoes have a right, if they want, to obtain this information. By cutting it off, unconvicted citizens are infringed in their right to hear. So I don't think you should make the words of murderers unavailable, not because it infringes the murderer's right to speak but because it infringes my right to hear. (Cutting off cash flow to the would-be convicted felon writer, on the other hand, doesn't infringe my right to hear and so is fine with me.)
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