The conservatives on the Supreme Court are using the classical language of free speech absolutism in a bald attack on the foundations of self-government. It's an attack that became obvious in Buckley v Valeo, a decision that should be as infamous as Dred Scott or Plessey but which has gained less attention due to its use of the language of civil rights. The equally dangerous Citizens United ruling of this year does the same thing. It is an attack on the actual foundations of democracy, the right of The People to be accurately informed so that they can then elect a government which will serve their interests, and an attack made in the language of free speech. These are the same people who handed George W. Bush the presidency as a result of a clearly corrupted election in a state governed by his brother. And during this congress it was remarkable to see the far right of the Republican Party, the Bible Belt caucus of the party attacking Democrats in language that used to be the reserve of those championing Screw and Hustler magazine. That level of hypocrisy always masks some seriously bad intentions.
In discussing this on blogs of the left, repeatedly pointing out the dangers that the dogma that puts speech above other rights and clearly now over even the most basic political right we have, to have a government which is the product of an informed decision by voters, it's been clear that the slogans and lore of free speech are a big problem. Sometimes it feels like you must have suddenly lost your powers of articulation.
I don't know if somewhere in the bowels of the Federalist Society they figured it out, that the left having this issue so badly backwards was a golden opportunity for them to attack that democracy which is the enemy of plutocrats in all ages but they might as well have. Speech is the servant of The Peoples' right to have accurate information, it is only an important right in so far as it delivers the truth which our need to make decisions in our personal lives and to make choices in governing our communities and countries. The reason that slaves were barred from learning to read wasn't because their enslavers were afraid they were going to read smutty stories, it was to prevent them from being free. Substituting skillfully devised lies and distractions in order to sell lies to an electorally effective majority is just doing the same thing by different means.
The free speech absolutists almost always eventually get back to Jefferson, the slave holding patron saint of their dogma. Little remembered was the fact that, when he was in a position to do so, he banned David Hume's History of England from the University of Virginia because he saw, rightfully, I think, that it had a deep anti-republican bias. He was afraid that it would damage the quasi-republic that was developing in the United States and took the action he was able to suppress it. In letters to several people he railed against its pernicious potentials and promoted an alternative, partial cribbing, of Hume's history which promoted government by The People. Clearly he put that right above the rights that Hume's history held. In looking around, I've noticed that Hume's Hisotry seems to be popular with a certain segment of the neo-federalist” right here. I don't think its a manifestation of quaint anglophilia that leads them to it.
In so far as politics is concerned, free speech is a utility, it's there to make self-government possible. People who don't know the truth won't be free, That is as close to a law of nature as you can come in democratic politics. That is its most important public function. Other than that, the constitutional protection of speech is, undoubtedly, useful in preventing harassment by an oppressive government. But today free speech is being used as a means of attacking self-government and the only alternative to self-government is an oppressive government. And with that despotism will end free speech except that speech which serves those with the actual control of the government.
Self-government isn't something that you can sell like you can a movie or book or magazine article, the sellers of which are among those who automatically use the language of free speech without consideration of its place in the real guarantee of freedom, a public which makes decisions out of the truth instead of false propaganda. Since it's people in the business of getting paid for producing stuff in the form of speech, that's where almost all of its advocacy begins and stops. It's way, way past time that our scribbling classes got serious about free speech in light of how the far right has adopted it since the 1970s. If they can't come up with the language to protect its most important function then their decidedly less important use of it will be lost. And that protection won't come in the slogans of absolutism but in the far less gratifyingly simple and bracing reality of political life.