As we have seen, in Against All Censorship, Gustavo Maultasch argues that the current state of affairs in the USA regarding freedom of expression it is the realization of a universal and a priori (ie, experience-independent) moral law. Only in the USA was an existential dimension of humanity realized: from Socrates’ Greece to Descartes’ France, from Cicero’s Rome to Newton’s England, from Ancient Egypt to Confucius’ China, humanity had not acquired a fundamental freedom that is its right. After all, the existence of the USA is a blink of an eye in the history not only of humanity, but of the West itself. Still, to this list of darkness one must add the United States of Thomas Jefferson. For, as Gustavo Maultasch explains, the state of affairs in the USA is not a pure consequence of the First Amendment, but of a particular interpretation that was only consolidated in the 20th century. Interpretation given in 1919 by a progressive Supreme Court justice, Oliver Wendell Holmes Jr. (1841 – 1935). It was he who decided that freedom of expression should only be limited in cases of imminent risk, giving as an example the ban on shouting “fire!” in the theater when there is no fire. In that case, a panicked crowd would cause trampling deaths.
A major pragmatic objection by Gustavo Maultasch to censorship is to ask: “Who adjudicates?” Before banning a speech, one must decide that the speech is bad. Who decides? In my opinion, the people, through their elected representatives. Winning elections and passing laws on sensitive issues is not easy, so there is no reason to fear a censorship furor from the Legislature. In fact, one of the problems of democracy pointed out by Hayek in The road to servitude (1935) is precisely its appearance of slowness: as Parliament always spends a lot of time discussing and negotiating, it is easy to give the impression that a strong man could solve all problems alone – even more so at a time like World War II, when almost every literate was dirigiste.
The next problem is, when you prohibit something like “hate speech”, knowing who is going to decide what is hateful. In fact, it’s a real problem. And I believe it is a recent problem. Because pre-progressive Brazil prohibits a particular doctrine, namely racism, which considers that humanity is divided into races and some are superior to others. The Inquisition, which dates back to the Middle Ages, did not prohibit hate speech or things that cause harm, but private doctrines, heresies. (Even racism stems from the pre-Adamitism heresy, or, in its lay version, the human polygyny hypothesis.) Subjectivist censorship in peacetime, at least in the history of Western law, is new.
As Maultasch points out, another type of demand for censorship appeals to the notion of harm, which was used a lot in the pandemic. In a reductio ad absurdum, it lists a number of things that cause or can cause harm, but are not intended to be prohibited, such as mountain climbing (it is dangerous) and soft drinks (not are healthy).
Nevertheless, he still admits that “even the most absolutist of Free Speech advocates admit that there are exceptions” (p. 67). Therefore, it is necessary to conclude that someone adjudicates. Whoever awarded, in the short term, was Oliver Wendell Holmes. And the limitation follows the principle of harm, but nuanced: it would be that of imminent harm. In the case of a theater on fire, damage is imminent. In any case, we could ask who determines whether damage is imminent or not. Then things get even more complicated, because a basis for this reasoning is in another decision, this one by Judge Louis Brandeis (1856 – 1941) in 1918, referring to the pamphlets of communists: “If there is time to expose, for the discussion, falsehood and fallacies, to reverse the evil through the education process, the remedy to be applied is more speech, not forced silence” (p. 1935 ). In the case of the theater, there would clearly not be enough time to prevent the trampling by the word. Communist speech should be banned in 1918 because in 1918 there was no risk of causing imminent damage: the US was not on the brink of a communist revolution. Or at least so judged Brandeis.
From the principle of harm to poor people
You can play a lot with this type of ban. If social psychologists believe that the Netflix series 13 Reasons Why increased the suicide rate among teenagers, so it can be said that there was not enough time to stop them. As it has long been known that suicide is a contagious social phenomenon, newspapers and TV have a series of good practices to follow. But they are not codified as laws, and mere social constraint is usually enough to enforce them. Still, as Netflix shows, they are not always followed. To guarantee this, it is not enough to even criminalize, since censorship would come after the damage caused. With the harm principle, prior censorship committees are legitimized.
We see, today, prior censorship. Publishers already hire a “sensitive reader” to, with his credentials as an oppressed, scour literary works and see if he feels any harm caused by words. Thoroughly torturing the numbers, you can say that too many “blacks” (blacks + browns) die, which is proof of the systemic oppression caused by structural racism. Your book that uses the word “cried mute” is part of systemic racism, so it needs to be censored to prevent the harm done to blacks.
The trans movement use the suicide card directly. Before the social contagion of gender dysphoria, transsexuals already had a high suicide rate. As Abigail Shrier showed in Irreversible Damage, activist health professionals used this statistic to blackmail parents that if they didn’t accept their children’s sex change, they would likely Kill himself. Today, the State itself already plays this role and does not even let the parents decide. (See article by the same author in this Gazette.)
Who adjudicates immediate damage?
Relevant historical data
If Maultasch is to be believed, Oliver Wendell Holmes was an enlightened man whose decision coincided with an absolute moral law for the first time in human history. He would have gone through a process of enlightenment, as a previous decision of his was against the almost absolute Freedom of Expression defended by Maultasch. Namely: on the same occasion that he created the example of shouting “fire” in a theater, “Holmes thought that Schenk’s pamphlets [comunistas] would indeed configure this danger; in the midst of a war, obstructing enlistment efforts would be analogous to shouting ‘fire!’ in a crowded theater, in his performance.” The decision is of 1919. In the same year, Holmes, after correspondence with the political scientist Harold Laski (perhaps the most famous English Marxist of the first half of the 20th century), gives another decision releasing socialist pamphlets and defending the experimental character of democracy.
Did he just change his mind? I prefer to continue with the chronology, and cite the most spurious case of the US Supreme Court: in 1918, in the fury of the eugenics movement, the state of Virginia created a sterilization law and the hospital staff wanted to sterilize a certain Carrie Buck on the grounds that she was mentally retarded. (It turns out she wasn’t; she was just a poor redneck.) Holmes decided that “three generations of idiots was enough” and she was sterilized under a compulsory vaccination law. The vote was 8 to 1 in the Supreme Court. The only dissenter, Judge Pierce Butler, was a Catholic.
Let’s go back in chronology. In 1918 the USA lived the Progressive Era. They were under the auspices of the intellectual movement that implemented state racism, eugenics and birth control. (A good work to learn about the period is Liberal Fascism, by Jonah Goldberg. It came out in Portuguese under the title of Fascism on the left and I commented on this Gazette.)
In 1919, the president was political scientist Woodrow Wilson. He had put the US in World War I after he was elected by promising not to enter the war. During the war, he created the first state propaganda department, the Committee on Public Information (CPI), which had all the hallmarks of a totalitarian state. Minister Göbbels is an imitator of Minister Creel. The German Nazis imitated the American progressives in this and in the sterilization courts at the very least.
In 1918 , Russia went through the Communist Revolution. AI War ended in 1918. Although he was tried in 1919, the Schenk case still took place in wartime, so it was considered that there was “imminent damage”. In 1918, the defendants were Russian immigrants, communists and anarchists, who published writings against the US invasion of Russia – an invasion that did not actually take place. Holmes may well have considered that this was not a harmful opinion.
As Maultasch says, his conception “Freedom of Expression” took a long time to take effect: “Gradually, the Supreme Court distanced itself from the general fear of the ‘red terror’, and thus began to protect Freedom of Expression even for those who defended authoritarian ideologies” (p. 40). In the decade of 30, it was free to defend communism. The decade of 67 is just the era of radio in the USA.
You might think that everyone has become nice and given to freedom. As for me, I note that the people lost the power to forbid the dissemination of infamous ideas at the moment when centralized mass communication became an established fact. Every home now has a talking machine. On the other side of the machine were a bunch of people who had put a lot of money into it.
In the years 40, abortion was an infamous idea in the US even for the avant-garde pill-advocates. The other day I saw an American series from 2017 with a scene like this: a middle-aged and middle-class couple discover an unlikely pregnancy and naturally discuss whether they are going to have the child, for because of costs. It is evident that a change of mentality has taken place. Was it spontaneous or was it the result of propaganda? In any case, the STF there had already decided that the apology of abortion could not be criminalized. Meanwhile, institutions like Planned Parenthood continued to make money, and judicial activists, pen in hand, move into Brazil to pass infanticide on seven-month-old fetuses. Just as they moved to decriminalize racism and implement state racism in 2012.
So we are left with: a half a dozen billionaires put money into their NGOs, such as the Ford Foundation, the Open Society and Planned Parenthood. These NGOs and these billionaires can put propaganda in our faces all day and we can’t do anything, because that goes against an a priori principle that half a dozen libertarians believe in. Do you think it’s bad? Earn billions and start your own NGO!
This is not democracy. This is the despotism of a collusion of billionaires with the judiciary that hides under the formalities that democracies used to have.