Penn ID: 13485719

October 20, 2017

COMM 322 Midterm Essay

History & Theory of Freedom of Expression

We are, no doubt, living through a unique and tense political environment. The heated

dialogue of the 2016 elections, Donald Trumps controversial, blunt and often offensive rhetoric,

the Charlottesville display and the rise of ISIS radical content circulating the internet has brought

the topic of Freedom of Speech front and center, the merits of the First Amendment debated

and proposals to limit speech brought forward.

Posner, in his article ISIS Gives Us No Choice but to Consider Limits on Speech brings

forth a similar proposal - the idea of introducing anti-propaganda laws and limiting access to

ISIS related websites the same way is done with child pornography. But Posner dismisses three

major things in making this suggestion. First, a major foundation of classical liberalism is the

right of every man to autonomy and the freedom to make his/her own choices and not be ruled

by another. Put eloquently by John Locke in his work The Second Treatise of Civil

Government, humans ought to live in a state also of equality, wherein all the power and

jurisdiction is reciprocal, no one having more than the other. The idea of limiting another

humans ability to look into and research ideas produced freely and willingly by its creators is a

direct contradiction of this idea.

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 Secondly, it is not contested that ISIS makes people feel uncomfortable, but it cannot be

compared to child pornography for this reason - child pornography is a visualization of a lack of

consent and the dismissal of the rights and autonomy of children (once again, in contradiction

with the foundation of classical liberalism). To allow unfettered access to this content is to

further rob children of the autonomy that classical liberalism stands for. Essentially, the reason

for the restrictions on this kind of pornographic content is not simply to distance us from

deplorable acts of evil but to respect the autonomy and freedom of children in a way classical

liberals advocate and their molestors did not. Going back to Lockes work, the State of Nature

teaches all mankind that being all equal and independent, no one ought to harm another in

his life, health, liberty or possessions. To allow others to view and enjoy content that infringes

on the liberty of others is a direct contradiction of classical liberalism and as such, this restriction

of speech in fact protects classical liberal values and by extension the autonomy of others.

To understand the third point, recall the case of Patterson vs. Colorado. During this case in

1907, the bad tendency test was used to press charges against a newspaper publisher for

inciteful content. If bad tendency were still the measure for the restriction of free speech, no

doubt viewing ISIS content would make the cut and its material could be outlawed in the United

States. However, n the case of Schenck vs United States in 1919, Justice Oliver Wendall Holmes

in his majority opinion presented the clear and present danger test. In the case of Abrams vs

United States (also 1919), Holmes in his dissent wrote this, It is only the present danger of

immediate evil or an intent to bring it about that warrants Congress in setting a limit to the

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expression of opinion where private rights are not concerned. Congress certainly cannot forbid

all effort to change the mind of the country. A relationship can be drawn here between Abrams

distribution of pamphlets advocating strikes during the War time and ISIS circulating content that

could harm the United States. While these opinions could harm the United States in the long run,

they do not present a clear and present danger to the national security of the country and as such

these opinions do not warrant censorship.

Posner, towards the latter half of the article argues that the major justification for speech is

the marketplace of ideas - a phrase curated by John Milton is his work Aeropagitica in 1644

and that ISIS content does not contribute positive value to this marketplace or support its

mission to let the best ideas flourish. From a classical liberal perspective, no idea is unworthy of

being spoken or presented in the marketplace of ideas based on its perceived lack of value. Time

and time again, classical liberals have emphasized that the truth will win in the battlefield of

ideas. So if we know that truth is to win, then the presence or absence of an unpopular or

incorrect opinion barely matters in face of the truth. The thought is, if ideas (especially those that

are unpopular) are not allowed to be expressed, a vast collection of diverse thought and truth

could be lost. An idea could seem irrelevant at the time but change and improvement is brought

along by the questioning of ones situation and circumstances and this can only arise when there

is discontent, or at the very least, the want for something better. As such, dissenters and

disagreers are healthy for the overall direction of truth and history can prove to us time and time

again through the many wars fought, the era of slavery and more that popular belief is not always

the correct belief and that truth may take its sweet time to unfold and come to the surface.

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 Not only does Posner state that ISIS content is of no positive gain in the marketplace of

ideas, but he emphasizes greatly the sheer negativity of its content. But freedom of speech cannot

be deterred based on this alone. Recall the case of Texas vs Johnson. During the 1984

Republican National Convention, Johnson partook in a protest chanting the words Red, white

and blue, we spit on you and ended by burning a flag in front of Dallas City Hall. While during

the course of the protest his words were inciteful, offensive and anti-American and no doubt

made people uncomfortable - the ability to express how he felt is a right the First Amendment

gave him, even if it was an anti-government opinion.

What Posner is suggesting is adopting once again, the laws of prior restraint as well as

punishment after action. As articulated by Leonard Levy in his work The Emergence of the Free

Press, throughout the 17th and 18th centuries, Britain struggled to restrain its press. Britain was

committed to censoring opinions and preventing unfavorable opinions from being printed. The

comparison we can draw between this and Posners suggestion is a clear one - Britain, in earlier

times, restrained its people from publishing certain kinds of content and Posner is asking to

restrain American people from accessing certain kinds of content. Just like the intentions of the

writers in those days were dismissed, the reasons for peoples curiosity and interest is ISIS

content would automatically be dismissed. While Posner suggests that passes be given to

journalists, researchers and those with a genuine reason to be interested in ISIS material, he once

again, forgets how the American constitution holds dear the power it has given its citizens to be

able to access knowledge of any kind - provided it does not infringe on others rights. Posners

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idea of punishing an individual for accessing ISIS content, by means of fines and prison time

echo Britains later views - the idea that one can be punished for content one created after its

publication under the vague laws of seditious libel without the ability to defend or explain

oneself.

Are Posners suggestions in line with the rights classical liberalism deems all citizens to be

worthy of? No. Does it strip individuals of the right of curiosity and acquisition of knowledge?

Of course. It is useless to deny that these laws are easily implementable (given the infrastructure

present to control to child pornography websites) and may perhaps discourage some from

accessing ISIS content, in an ideal world shielding Americans from the negative views of ISIS

and keeping America safe. However, every person has the capacity to make the correct decision.

This, classical liberalism is sure of. At the very least, everyone possesses the freedom of choice,

and to strip individuals of their freedom of choice (when it merely concerns expression and the

access of it, rather than action) is to infringe on their autonomy is a way that classical liberalism

does not stand for. Classical liberalism has time and time again maintained that the government

does not hold the write to lead peoples opinions or force them to subscribe to a certain

movement, purpose or truth.

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