The only way to have free speech is for the government to control it

I really enjoyed the beginning of this opinion piece from the Guardian:

When Barack Obama addressed a shocked nation in Tuscon, Arizona, yesterday, he deployed the only weapon left to a crippled presidency: the power of rhetorical cliche. He deployed it brilliantly.

“Together we thrive,” he cried meaninglessly. “For all our imperfections, we are full of decency and goodness.” While American hearts were broken, “yet our hearts also have reason for fullness … The forces that unite us are stronger than the forces that divide us.” Despite pleas to keep war jargon out of political discourse, Obama asked: “How can we honour the fallen?”

The answer came in copious references to heroism, family, home, hearth, to “September 11 … faces of hope … simple wishes … those in need … the American anthem … hand over heart”. True Americans, said Obama, “jump in rain puddles”. In a tribute to a nine-year-old gunned down by a madman, he added: “If there are rain puddles in Heaven, Christina is jumping in them today.”

When it comes to the almost embarrassing banality of the President’s speech, yes, that’s it.

Where Simon Jenkins lost me was his recommendation for protecting free speech in America: let the government control it.  Or, more specifically, to let a Left wing government control conservative speech.  It’s difficult to imagine a more perfectly Orwellian formulation:

Freedom of speech, like freedom of traffic, can only be defined by the curbs and regulations that make it real.


Free speech is a Hobbesian jungle. It requires a marketplace where the trade in information, ideas and opinion has a framework of rules, including rules that maintain fair and open competition. Most will be voluntary, but others need enforcement. The US supreme court last year freed from control all political campaign gifts from corporations, on the grounds that this would be a breach of free speech. Ronald Dworkin’s rebuttal of this “devastating decision for democracy” in the New York Review of Books pointed out that freedom of speech was hopeless if vulnerable to the bullying of wealth. Obama warned that it would “open the floodgates for special interests – including foreign corporations – to spend without limit in our elections”.

After properly castigating Britain’s 2003 Communications Act, which seeks to impose huge and multitudinous controls on British broadcasters (“This is not freedom but authoritarianism”), Jenkins nevertheless turns around and describes his own brand of authoritarianism:

When it comes to Mosley’s defamation or Tong’s twittering, most Europeans would rely on self-discipline on the part of the media, and on the chaotic pluralism of the internet. Even so, they would argue for regulated airwaves, as they would for laws preventing libel, slander and incitement to illegality and racial hatred. Freedom can only flourish in a climate of discipline.

When the art historian and TV presenter Sir Kenneth Clark was asked what quality best defined civilisation, he did not answer with liberty or wealth or equality. He answered with courtesy, the framework of rules governing people’s tolerance of each other, so their discourse might be creative. Most of the time, it is best for that courtesy to be informal. The best rebuttal of the politics of hate is a torrent of love – or, if not love, at least of facts.

But sometimes, as Obama said, there is a yearning “to try to impose some order on the chaos”. If American politics is now going the way of wounding, not healing, it needs the tonic of order. It is the great paradox of democracy. Free speech cannot exist without chains.

What Jenkins fails to understand is that, once the chains are in place, the government in power effectively controls speech, because it gets to define infractions and then police them. It’s not only the beneficiary of the laws, but also the judge, jury and executioner for alleged violations.