Alexander Hamilton was against the Bill of Rights, particularly the First Amendment. This famous xkcd comic explains why:
According to Randall Munroe, the author, the “Right to Free Speech” is granted by the First Amendment, which was precisely the outcome Hamilton feared in Federalist No. 84:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Hamilton’s argument is that because the U.S. Constitution was created not as a shield from tyrannical kings and princes, but rather by independent states, all essential liberties were secured by the preamble (emphasis original):
WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America.
Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations.
Munroe, though, assumes the opposite: liberty, in this case the freedom of speech, is an artifact of law, only stretching as far as government action, and no further. Pat Kerr, who wrote a critique of this comic on Medium in 2016, argued that this was the exact wrong way to think about free speech:
Coherent definitions of free speech are actually rather hard to come by, but I would personally suggest that it’s something along the lines of “the ability to voluntarily express (and receive) opinions without suffering excessive penalties for doing so”. This is a liberal principle of tolerance towards others. It’s not an absolute, it isn’t comprehensive, it isn’t rigorously defined, and it isn’t a law.
What it is is a culture.
The Marketplace of Ideas
The most well-known argument for why free speech is important is that it allows for a “marketplace of ideas”. For example, in 2012’s United States v. Alvarez, in which a law making it a crime to lie about having received military honors was held to violate the First Amendment, Justice Kennedy wrote:
The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straightout lie, the simple truth…The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting).
The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradition. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.
Note the citation in the excerpt to Justice Oliver Wendell Holmes’ dissent in the 1919 case Abrams v. United States; in that instance a socialist and four anarchists were convicted for distributing leaflets condemning U.S. intervention in Russia and calling for a worker’s strike. Holmes wrote:
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.
Here Holmes was echoing John Stuart Mill’s classic, On Liberty:
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
This remains a powerful argument. Consider the dates, and circumstances: Holmes wrote his dissent 100 years ago about “seditious” behavior that today we consider normal, if not expected — any one of our Twitter feeds contains material far more objectionable to the powers that be than any of the fliers in question. Mill, meanwhile, published On Liberty in England in 1859, when slavery still existed in America. Clearly no one knew the full truth in 1919 or 1859, and it is doubtful anyone does in 2019, either.
At the same time, both Holmes and Mill wrote well after the creation of the First Amendment; to the extent the First Amendment creates a “marketplace for ideas”, there is no evidence that was the rationale for its creation.
In fact, the reasoning for the First Amendment was much more straightforward: to defend against tyranny. The Bill of Rights as a whole were added to the Constitution to satisfy “anti-federalists” that feared the creation of a central government that might one day violate their rights; Thomas Jefferson, whose support was essential for the adoption of the Constitution, wrote to James Madison that “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”
The Tech Angle
There is, I swear, a tech angle.
Over the last several weeks debate has raged over Facebook’s policy to not fact-check politician speech on its platforms, either in organic posts or paid advertisements. Twitter, meanwhile, decided to ban political ads completely.
Start with the latter: it is hard to interpret Twitter’s decision as anything other than a Strategy Credit. The company, by its own admission, earned an immaterial amount of revenue from political ads in the last election cycle; now it gets to wash its hands of the entire problem and chalk up whatever amount of revenue it misses out on as an investment in great PR.
Such a policy, however, particularly were it applied to Facebook, where much more advertising is done (political or otherwise), would significantly disadvantage new candidates without large followings, particularly in smaller elections without significant media coverage. It is, at a minimum, a rejection of social media’s third estate role; best to leave the messy politics to the parties and the mass media.
Facebook, meanwhile, has struggled to defend its decision in the context of a “marketplace of ideas”. After all, what value is there in a lie? In fact, Mill would argue, there is a great deal of value in exactly that, but it’s a hard case to make! Never mind that most disputes would be less about easily disprovable lies and more about challengeable assumptions.
And that is precisely where the original justification for the First Amendment matters: the point was to avoid tyranny, and Facebook deciding what is or is not true is exactly that — tyranny. It is an approach that is inimical to the culture of free expression that birthed the law about free expression, and the company is right to push back on calls that it be the arbiter of truth.
Tech and Liberty
In fact, I would go further: Facebook’s stance is an essential expression of what makes American tech unique. Don Valentine, the legendary founder of Sequoia Capital who passed away last week, once said:
The world of technology thrives best when individuals are left alone to be different, creative, and disobedient.
This is not a statement about participating in the marketplace of ideas, winning others over by the power of your argument. It is, rather, an affirmation of the absence of tyranny. Only when individuals are able to think for themselves can something truly new to the world be created, and the proof will be the success in the market for tech products and services.
It is on this point that I find Mill’s On Liberty to be particularly compelling:
Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant — society collectively, over the separate individuals who compose it — its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.
Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.
Frankly, I find it deeply concerning that I might have any trepidation in writing that Facebook made the right decision. The unquestioned assumption of the media world in which I live is that Facebook is uniquely guilty of all manners of crimes, first and foremost the election of one Donald Trump as president. Never mind the questionable campaign choices of his opponent, or the unrelenting focus on emails by the mainstream media (emails in general being the far more impactful Russian intelligence operation).
This isn’t that big of a deal in isolation: the beauty of my business model is that I am beholden only to my readers as a collective, and not individually. And Facebook CEO Mark Zuckerberg is even more insulated thanks to his complete control of Facebook’s governance (more on this in a moment).
At the same time, the degree to which Twitter in particular — leaving aside its stance on ads — is increasingly a tool for stamping out independent thought in Silicon Valley should be a real concern for an industry predicated on “Thinking Different”. No power-that-be likes disruption, or innovation they do not control, but tech specifically and the U.S. generally needs more free thinkers, not fewer. Mob mentalities, no matter their good intentions, leave little room for freedom of thought, and lots of room for the status quo.
Think of one of the most famous characteristics of Silicon Valley, the fact that it is ok to fail, both for an entrepreneur and an investor. That is a philosophy of liberty, the point of which is not simply to win arguments, but also to have the space to do something different, sometimes for better, and sometimes for worse.
This is not a blanket defense of Facebook. I believe the company has it right from a big picture perspective, both in terms of American values generally and tech values specifically, but could do better on the details.
First, while the letter from Facebook employees was wrong, at least constitutionally speaking, in asserting that “free speech and paid speech are not the same thing”, the practical impact in terms of Facebook is very different. Organic posts are subject to the vagaries of the Facebook algorithm, whereas advertisements can be targeted at specific groups.
Both are problematic in their own way. Facebook’s algorithm is, as far as we know, predicated first and foremost on engagement, which inevitably favors the outrageous and controversial. Targeting, meanwhile, both grants a right to be heard that is something distinct from a right to speech, as well as limits our shared understanding of what there is to debate.
These last two points are not new, by the way. Consider this New York Times article from 2004, the year Facebook was founded:
Each party’s databank has the name of every one of the 168 million or so registered voters in the country, cross-indexed with phone numbers, addresses, voting history, income range and so on — up to as many as several hundred points of data on each voter. The information has been acquired from state voter-registration rolls, census reports, consumer data-mining companies and direct marketing vendors. The parties have also amassed detailed information about the political and social beliefs that you might have shared with canvassers who have phoned or knocked on the door over the past few years.
The new databases and statistical tools allow candidates to seek out individuals by predicting what personal characteristic, or what combination of characteristics, makes a voter worthy of a tailor-made outreach effort. In other words, someone who appears nonpartisan, someone who might even think of himself as nonpartisan, may nevertheless have a political DNA that the parties will be able to decode. When I spoke recently with one Democratic statistician who does not want to be named — strategists on both sides see no conflict in combing through our personal lives and then speaking only on the condition of anonymity — he explained that his work is to find voters not just by what they are and where they live (a 30-something Jewish New Jersey resident like me, for instance) but by how they live (a homeowner with two young children, a foreign car and two credit cards). In politics, he added, this is somewhat revolutionary, allowing campaigns to reach out — by mail, phone or in person — to voters they would ordinarily ignore.
Crucially, these efforts, particularly that most devious of political tools, direct mail, operated completely in the dark. Here Facebook is a genuine improvement: in response to the 2016 election the company made all ads accessible and searchable to anyone.
Still, it’s fair to argue the company should go further. I like former Facebook Chief Security Officer Alex Stamos’ suggestion in the Columbia Journalism Review that there be a “floor” for the specificity of Facebook ad targeting when it comes to politicians:
Politicians lie all the time. What we want is for them to tell the same lies to everybody, instead of being able to hit 50 people at a time. There are a lot of ways you can try to regulate this, but I think the simplest is a requirement that the “segment” somebody can hit has a floor. Maybe 10,000 people for a presidential election, 1,000 for a Congressional. This would also reduce the huge market for voter data that exists.
Yes, you could direct mail only 10 people, but that would quickly become untenable given the marginal costs in both time and costs involved; the lack of friction on Facebook means that artificial limitations may be appropriate.
At the same time, the point about direct mail is instructive: no one is arguing that the U.S. Postal Service should start ascertaining the truth of political mailers. The question, then, is to the degree that Facebook is a similar type of communications utility, should the company be doing less censorship period, and instead focusing on limiting the right to be heard?
Of course the U.S. Postal Service, being a government entity, is also limited by the First Amendment, and ultimately accountable to voters. It is here where I have the biggest problem with Facebook’s role: because of its governance structure, the company is completely unaccountable.
Indeed, Stratechery subscribers know that this is not my first invocation of the Federalist Papers in recent weeks. I wrote in a Daily Update about Zuckerberg’s speech on free expression how the Founding Fathers sought to ensure liberty not simply by law but also by structure. James Madison wrote in Federalist No. 47:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.
Facebook, obviously, is not the government, and thank goodness: the fact that Zuckerberg answers to no one is deeply concerning to me. To be fair, in the case of political ads, this was arguably a benefit: I think he is making the right decision in the face of massive resistance. In the long run, though, it is very problematic that such a powerful player in our democracy has no accountability. Liberty is not simply about laws, or culture, it is also about structure, and it is right to be concerned about the centralized nature of companies like Facebook.
To that end, the fact that this debate is even occurring is evidence of the problem: those opposed to Facebook’s decision about ads wish the company would wield its power in their favor; my question is whether such power should even exist in the first place. Facebook can close Munroe’s door on anyone, and there is nothing anyone can do about it.
I wrote a follow-up to this article in this Daily Update.