Knowledge And Decisions

It is not merely as an individual benefit but as a systemic requirement that free speech is integral to democratic political processes. The systemic value of free speech depends upon the high individual cost of knowledge — that is, lack of omniscience. “Persecution for the expression of opinions” may be “perfectly logical,” according to Justice Oliver Wendell Holmes, when “you have no doubt of your premises.” He continued:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.¹⁵

This faith in systemic processes rather than individual intentions or individual wisdom meant that even “a silly leaflet by an unknown man”¹⁶ required constitutional protection, not for its individual merits, nor as an act of benevolence or patronage, nor as recognition of an opaque “sacred” character of an individual’s endowment of “rights,” but as a matter of social expediency in a long-run, systemic sense. For that very reason, it was not a categorical right but one subordinated to that social expediency which justified it in the first place, and therefore revocable whenever it presented a “clear and present danger”¹⁷ to the continuation of that systemic process itself or to the people and government in whom that process is expressed. In short, the right of free speech is not an opaque “sacred” right of an individual, any more than other rights such as property rights are “sacred” individual possessions. All are justified (or not) by the litmus test of their social expediency — not in the sense that any individual or group rash enough to imagine themselves capable of following the specific ramifications of each particular statute or privilege in its social impact may centrally control all words or equipment — but in the larger and longer-run sense that we can judge the historic benefits of systemic interplay better than we can determine individual wisdom in word or deed in process. Adam Smith’s systemic defense of laissez faire, despite his obvious and pervasive disgust with businessmen,¹⁸ paralleled Holmes’ systemic justification for freedom for opinions he regarded as harmful or contemptible. Both amount, ultimately, to recognition of different costs of knowledge in judging overall results rather than judging individual parts of a process.