Free Speech as the State of Exception

Returning to realism about the First Amendment

It can be difficult to discuss Free Speech not only because the notion is hard to define—and I will argue below that Free Speech as we conceive of it is not really law, or even cognizable as such—but because it holds such cache among basically all intellectually engaged people in the West. Free Speech for most of us is not law or rule so much as a metaphysical concept, on par in the level of human dignity with the concept of free will. Chat with the crustiest realist, the dourest reactionary, and you’re likely to find him lauding Free Speech as fervidly as any Whig Historian as a sine qua non of political liberty, a positive end in itself. Free Speech holds cache not only as being an outlet and instrument for fighting against unjust and wicked power, but in fact becomes nearly synonymous with political virtue itself, and limitations on Free Speech are proofs positive that a state is tottering towards illegitimacy, and mankind towards the Dark Ages. “Men feared witches and burned women,” Justice Brandeis wrote in an apparent fever dream in Whitney v. California. “It is the function of speech to free men from the bondage of irrational fears.” This is not the kind of sentiment that can be strictly proven or critiqued; it goes to the very foundation of one’s political philosophy.

But let’s start from another angle and on less numinous ground, with a definition. What I mean by Free Speech is the legal protection of speech critical of the powers that be and which is or has the ability to be politically efficacious. It is this right which supposedly makes modern democracies so distinct and all previous governments: that we have risen to the level of allowing (at least ideally) speech critical and wounding of the government, but that the gift of our ability to reveal truth unimpeded makes our lambasted government better off for it.

Commonsense, I think, prescribes another rule which history better validates: That the sovereign will not long allow its legitimacy or the bases to its legitimacy to be seriously questioned. Therefore, where we see persistent and widespread criticism of a government, or where the premises of that government are constantly undermined through withering speech, we should question whether that object of ridicule is truly sovereign, or whether better explanation can be found for the government’s failure to defend itself.

We can start with an example: Any history in the development of modern First Amendment must study the Seven Bishops Case of 1688, during the short reign of King James II. The background of the case is that James was a Catholic who had risen to the throne of Protestant England and, just as importantly, he had recently sired a male heir who would presumably continue the Catholic line. James put forth a Declaration of Indulgence removing many of the civil and criminal penalties faced by Catholics at the time, and sought to have the Declaration read in churches throughout the land. The King of England was, by the logic of Henry the Eighth, head of the Church of England, but James’s Catholicism meant that the Anglican bishops could not so easily acquiesce. They refused to read the Declaration, and with recourse to the “English constitution,” declared that James lacked the authority to make such a pronouncement at all. The event is sometimes referred to as the one time the English bishops ever opposed the crown, and the one time they ever agreed on anything.

The bishops tied themselves to Parliament’s averment that it was they who had jurisdiction over matters such as the Declaration—in effect that the Head of the Church of England lacked jurisdiction in Ecclesial matters. The crown in turn charged these bishops with seditious libel for the clear disparagement of the king and his power. The case went before a London jury. From a legal perspective, the matter was not difficult. Truth was not an absolute defense to libel—it was not, even in liberal American jurisdictions, until the Progressive Era—and the bishops had clearly impugned the authority of the crown in their statements. Presiding Judge Allybone gave this statement of the law to the jury:

“No man can take upon him to write against the actual exercise of the government, unless he have leave from the government, but he makes a libel, be what he writes true or false; for if once we come to impeach the government by way of argument, it is the argument that makes it the government or not the government….

“I do agree that every man may petition the government or the king in a matter that relates to his own private interest, but to meddle with a matter that relates to the government, I do not think my lords the bishops had any power more than any others.”

The judge had clearly cast his lot with the law and the king. It made no difference. The jury returned an acquittal. Perhaps we might chalk up the whole thing to nullification, of the jury acting on its own prerogatives against the will of an unpopular king. One might go in the opposite direction and say that the jury in effect shifted the English constitution, enshrining in utero a right to criticize the government. And indeed in most modern accounts, the jury delivered a blow for Free Speech: That the people (or at least the bishops) had the right to impugn the authority of the Crown in open debate. Anyway, the question was soon moot: Parliament brought in a Dutch army to conquer the land and a Dutch king to pretend to be a monarch, and Parliament’s dominance could no longer be questioned by anyone of sound mind.

Yet with the trial of the bishops, King James was given an object lesson, even before his dethronement was official: The law against sedition protects the sovereign, but James no longer was sovereign. The same rule held as it ever had, and as Judge Allybone conveyed: The sovereign has a right to defend his own legitimacy against libels and seditions as has ever held, and always will hold, for doing such makes it the “government or not the government.” It was simply that James was no longer protected by this fundamental fact. Much like President Trump, who likely believed himself Commander in Chief through his four years in office yet found himself subservient to putative members of his own administration, King James had thought himself to be sovereign of England. But it was only a paper sovereignty, and in fact power lay elsewhere.

Carl Schmidt taught us that the sovereign is he who decides the state of exception, that is, when the rule of law can be set aside in pursuit of the common good. Free Speech is a concrete application of this principle, used as justification by the sovereign to protect his or its own liberty and reward his or its allies. For this reason, there can never be any real “right” to Free Speech as there can be a right to own property or make a contract, for the “right” to Free Speech is not determined by logical necessity, but on the good graces of the sovereign. Moreover, there can be no absolute right to Free Speech any more than there can be a right to act as sovereign. If application of these norms sometimes appears arbitrary and capricious, it is only because an element of “anarcho-tyranny” is inherent in the nature of Free Speech, and indeed all liberal rights. When the true sovereign can benefit by this allowance of dissent, such dissent will be permitted; where it cannot, it will not.

2.

The most important attribute of the First Amendment is that it is barely law, and in a very meaningful way it is not law. It used to be law: When it was ratified in 1791, it imposed a very clear mandate and mode of conduct: “Congress [i.e. the Federal Congress] shall make no law…abridging the freedom of speech.” This was an absolutely lucid impediment placed on the Federal Congress and the Federal Congress alone. It in no way impeded the ability of “the state” as a whole from limiting speech, but left the duties of regulating speech were to be left to the fifteen semi-sovereign states at the time. This comported entirely with the structure of the Constitution as it was originally understood.

For the past century the First Amendment has been a mess. This came about from the Federal Supreme Court deciding “no law abridging freedom of speech” would apply not only to the Federal Congress, as the First Amendment clearly states, but to every level and kind of government across the United States, as the Fourteenth Amendment clearly does not state, but which every jurist pretends it does. The Court’s new First Amendment was internally inconsistent—it was dishonest on its face—because every government, everywhere and at every time has felt the need to regulate speech and has always done so into the present day—witness universal laws against libel and terroristic threats. The most outrageous proof that our modern First Amendment is not really law is the bare fact that it cannot even withstand a literal reading of its contents.  

Thus when talking about Free Speech, we are talking about a very equivocal thing. One could argue that it represents a principle of law, something like the maxims of Common Law that guided and directed all Anglo justice systems. And certainly Americans have always been extremely liberal in their speech compared to most every other nation on earth. But experience will show that no such maxim can be found, and the atmosphere created by America’s liberal speech rules is a long way from being strictly rational, as if our current rules were the result of adhering to some principle. The reason for this is that for Free Speech to be meaningful, for it to have effective force as an independent concept of law, it can only be discerned in contradistinction to a previously existing law—such as, with James and the bishops, the law of seditious libel. Thus the limits of what kind of language and conduct Free Speech actually protects are discovered primarily after their premises have been accepted, and only after the contrary legal provision has been compromised or fallen entirely. To put it another way: It is only after the concrete application of dissenting power has punctured a hole in the existing legal framework that we know how far the right to dissent inherent in Free Speech really extends.

As noted above, the progression of Free Speech as a justification for conduct is almost always discursive, and always makes itself known only after the fact, when it has been elicited as a defense to some generally applicable law. In other words, it is impossible to deduce from first principles what form this year’s regulation of speech will take as if it were a real principle of conduct, we can only ever figure things out after the fact.

As far as a principled defense of Free Speech can be mustered, it lies in relation to free debate in the realm of legislating. The very word “Parliament” derives from the French parle, and speaking is an essential feature of any legislative function divided between more than one man. And as an individual man who has no power of cognition does not really have the faculty of free will, as he lacks the material by which a meaningful act of will can be made, so a legislative body that has no power of debate has no real power of legislation, for no legislator can meaningfully pass laws on a topic he knows nothing about. Free debate in the British Parliament was a necessary condition of winning sovereignty from the crown. The same truth is expressed in Article I of our Constitution, granting an affirmative privilege to Congressmen for “any Speech or Debate in either House.” In a system that holds itself as a democracy, this same right must by the same logic be extended to the people, for it is they who control the levers of power. In a republic and even more in a democracy, Free Speech is a simple necessity for self-rule. If the people are truly sovereign, as they are in our nation, then they must have some ability to speak freely.

To firmly ground the right to Free Speech to such practical and utilitarian matters would do the world a great deal of good. It would couch the thing as a privilege of citizenship, not an absolute right, and one whose end is directly oriented towards the management of the state. Free Speech in this mode is an instrumentality, and a critical one, and one whose regulations are strictly tied to the act of governing. Conceive of speech as such and you’ll soon put away sentiments like Justice Brandeis’s from above and other hogwash “I may disapprove of what you say, but I will defend to the death your right to say it.”

The Supreme Court framed political speech this way:

“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” McIntyre v. Ohio Elections Commission.

What is political speech? At the very limit of it, it is speech about “social changes desired by the people.” But this is not that helpful. The operative question is who gets to decide the limits of what is acceptably “desired by the people,” for it is he who is sovereign. Or put another way, Who decides what is legitimate political speech? Answer that question and you will have discovered who the effective sovereign is.

3.

The sovereign has a natural right to protect his power and the legitimacy of his power. I can use the term “natural right” because the right follows by logical necessity: A ruler who does not have the right to defend his own legitimacy has no functional right to rule, which is a contradiction in terms. And even if we don’t want to apply things like “natural right,” the sovereign is going to do it anyway.

The central theory of American government is that it is the People who are sovereign. That sovereignty takes concrete form in our Constitution and the government it establishes. Under the original theory of the Constitution, it was with the states that the sovereign people’s practical power resided; this is why the Bill of Rights existed, to ensure this expression of sovereign power would not be squelched by the more powerful Federal Government. This Constitutional theory collapsed with Lincoln, who proclaimed that “We the People” in the preamble of the Constitution shifted sovereignty to the Federal apparatus. Yet this could not change the fundamental notion of our nation, that the people are sovereign.

A sovereign always has a right to protect itself, and this is true even when the sovereign is the people. In the 20^th Century to sovereign American people attempted to employ this right to attack subversive literature and seditious assembly. Such bans were overwhelmingly popular and well-founded in reason, for the Marxist and Leftist philosophies being suppressed were abundantly corrosive to the legitimacy of the state and the souls of the people composing it. Yet those attempts at lawmaking now come to us as antiques from a small-minded age, serving as petards for the courts to stand upon while declaring their vile unconstitutionality. I won’t rehearse how nearly all modern doctrines of freedom of speech have at least a faint residue of Communist treachery adhering to them (though I wish I could find the old Social Matter article about it). As Helen Andrews recently described in First Things, the ACLU’s recent adoption of Stalinist censorship is merely a return to original form after that organization’s 20^th Century foray into being the exemplars of liberal tolerance and virtue. Yet the it was on their prodding that the First Amendment became untethered to any form of decency and a bastion for all things contrary to the bases of self-government.

Indeed, the very notion of the modern First Amendment is antithetical to the notion of popular sovereignty enshrined in our Constitution and government. It is inherently subversive not only in practice but in theory, a denial of the premises of popular government. For the original premise of our government was that the popular will found expression through republican government: Through congresses, executives, and courts. But modern doctrines of Free Speech repudiate this claim. They explicitly state that the people, through their government, cannot limit the bounds of discussion, cannot limit the scope of the “political and social changes desired by the people”—that is, desired by themselves. The true will of the people is something that Congress cannot comprehend, and so legislatures are barred from passing laws related to evils the people desire to eradicate. Not only this, but modern First Amendment jurisprudence states that Congress can never be an accurate representation of the popular will. In other words, it repudiates the entire foundation of our government.

We should then ask ourselves: In this modern system which provides quarter for unbridled sedition and obscenity, where does true sovereignty lie? I would turn our attention to a modern American case which lays out the facts of things as well as the Seven Bishops case did for James II: The “Pentagon Papers” cases of 1971. Defense Department official Daniel Ellsberg sought to release a large amount of classified documents relating to the management of the war in Vietnam. The documents were necessarily embarrassing to the present Nixon Administration, but more than that posed a clear danger to national security: they were, after all, documents detailing the progress of a war that was still going on. The New York Times sought to publish the papers; the Nixon Administration sought an injunction based on the Espionage Act, citing national security. The release of the documents was patently illegal. It violated the face of the law, but also the general norms of government recognizing that any sovereign government needs to have some means of communication within its parts and form a kind of self-criticism without opponents’ meddling.

The Supreme Court sided with the New York Times. They did this not by striking down the Espionage Act or limiting its application in a discernable way, which would have at least made sense. The Court could barely be said to have made law at all, for a law is above all a guide of conduct based on legible rules (and given the highly variable readings of it in later cases, there is good reason to say this). If any rule can be discerned from the case, it is the otherwise obsolete and thoroughly asinine notion that the government has no right to prevent a harm, only to punish once it has been committed—that is, the supposed distinction between prior restraint and other regulations of speech. The issue or prior restraint is a matter of importance only to the press; doing away with it, or pretending there is a deep difference between injunctive relief before the fact to punishment afterwards, is undoubtedly a boon to the mendacity of the press. Indeed, a private individual might be happy to be enjoined from speaking rather than face criminal charges after the fact. But a newspaper faces no such dilemma: Once an injunction is lifted, there are no criminal charges that can wholly stall the work of the organization. Beyond that, filing individual suits against particular journalists is an onerous task which that cadre of sadists, freaks and liars seems to enjoy. 

Hugo Black in concurrence provided the following piffle, still sometimes quoted by people in robes across the land.

“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.” (Note, from this statement, the inconceivability of the governors serving the governed.) He continued: “The press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

The Pentagon Papers cases laid bare what I mentioned before: A law is a concrete rule of conduct, but the primary rule that can be derived from the Pentagon Papers cases is that what qualifies as protected speech—i.e. what qualifies as “matters of public importance”—lies with the discretion of the Supreme Court. (see e.g. Bartnicki v. Vopper)  The courts will decide when the law applies and when it doesn’t. The Pentagon Papers case lays bare the truth of dissenting speech: It is a privilege conferred on certain parties, one proffered according to arbitrary regulatory principles, not set law.

Yet even if the Pentagon Papers case is read narrowly (as the dissenting conservatives vainly advocated in Bartnicki), it is still a major coup for Free Speech and the Free Press versus the people. For the supposed inhibition of prior restraint can only be a boon to corporate media outlets. Where effective checks on media treachery disappear, the resulting system must necessarily establish them as preeminent within the regulatory apparatus. This is what the Court did, expressly and implicitly in the Pentagon Papers. It stood as a right of the corporate press to stand above the government.

In broad strokes, the 1972 Election provided a referendum over how the voting public wanted their popular sovereignty expressed, in the Nixon Administration or with the New York Times—resulting in the biggest landslide in American history. But the people’s President was not allowed to protect their interests. Within a few months the First Amendment warriors at the Washington Post would trounce grand jury secrecy in order to aid war hawks within the Deep State to universal liberal acclaim. President Nixon found himself in the same place as King James: He sought to protect his just sovereignty by the protection of the law, yet he discovered sovereignty lay elsewhere. James II’s claims of seditious libel were fundamentally defeated because the English aristocracy saw the true sovereignty lay in Parliament. Richard Nixon and his supporters found American sovereignty lay with the administrative state and the press. The Administrative State has ever after held the true active power of government. And the press now stood as the true arbiters of acceptable speech, of what “political and social changes were desired by the people,” for it was they rather than the government who decided the bounds of sedition. In this, and with the corporate press’s near-monopoly on communication and ability to manipulate the masses, the mainstream media gained the practical right of legislation.  

4.

However much the 20^th Century courts may have expanded the bounds of acceptable speech, right to real Free Speech, that is, political efficacious speech, has not grown, and in fact contracted through the years when it was the press who served the governed rather than their formal governors. Come to the 1980s and you might still encounter right-wing media holding onto traditional views on free association vis-à-vis the Civil Rights Act. These opinions have always been popular, and would find no formal prohibition from being expressed by the Secretary of State or the Postmaster General. But never would these views be able to form the basis for anything close to a serious propaganda movement. However commendable the free exchange of ideas and the pursuit of truth may be, we are not talking about real Free Speech unless it has the ability to be politically efficacious. How could the 20^th Century see such a broad and fruitful “Marketplace of ideas” and still end up with debate ultimately constrained by thoroughly mainstream views?

At the height of their power, mainstream media supplied 90 percent of American households with all their information through a few channels—three TV networks, two wire services, Time, the Washington Post, the New York Time, and the Knight and Newhouse newspapers. However broad and fruitful and commendable the 20^th Century’s “marketplace of ideas” might have been, it was always a black market so long as its participants were precluded from the corporate press. As the Pentagon Papers case came very close to formalizing, the corporate press was an intrinsic part of the constitution. It is little surprise that the high-water mark of these organs’ legitimacy came alongside the Civil Rights Act, when the diminution of property rights and embrace of moral degeneracy took on a form stronger that Communist governments had to slaughter millions to achieve.

Meanwhile, new rights to free expression remained a kind of booby prize to a conquered people. A man found himself with more nominal rights to “speak his mind” than ever before, and accordant rights to allow that mind to wander into obscenity and outright filth whenever he pleased. He had liberty and license, but he never really had Free Speech—his speech never had a chance to be politically efficacious. “Nazis” could march in streets of largely-Jewish Skokie because it allowed pinkos and Communists to occupy everywhere else.

And this new kind of speech, feckless as it was, verged on being positively inimical to the cause of Free Speech as it relates to governing. The propaganda mechanisms of the 20^th Century were well-suited to compartmentalizing dissident thought while still protecting all the trappings of absolute free expression. It is no surprise that “conspiracy theory” came into vogue at the time. What is a “conspiracy theory?” It is simply some idea about government or society deemed illegitimate by the propaganda channels. It is, in its full import, speech that is functionally seditious towards the true powers that be, speech that raises questions about the premises of actual power and the legitimacy of their rule. Nor is it any surprise that conspiracy theories are allowed to spread where the propaganda channels are in total control, for the designator “conspiracy theory” of “conspiracy theorist” provides a stark line between those fully resolved to the narratives put forth by the propaganda channels and therefore are allowed politically efficacious speech and those who hold views outside the realm of acceptable thought. Such can only be a boon to those who control the flow of legitimate information.

The Kennedy Assassination is the paramount example of this. The fact that some explanation existed besides the Warren Commission’s was clear to everyone from the beginning, and literature on the topic has always been readily available to anyone who really wanted to find it. But in no case were the fruits of such discussion allowed to enter the realm of concrete political discourse. Dissenting viewpoints were always allowed: Jim Garrison was allowed to go on late-night television to pitch a speculative case of criminal conspiracy, while various loons would pop up on sitcoms alongside Fox Mulder to remind the public that such loons existed, and that they were certainly loony. This was the kind of conditioning that led media consumers made to know that conspiracy theories are evils to be avoided on the grounds of sense and decency. For if the conspiracist’s information were to become anything but feckless, it would immediately become seditious—proof that the present system is nothing like its outward show, and on some level illegitimate. 

More recently, no one has lacked material about the 9/11 attacks or the apparent government complicity in them. A man who wanted to know the truth about the attacks could find the truth and have no legal impediments placed in his way. Acknowledgement of the existence of such theories was allowed in mainstream media, but only as a means of cleavage between acceptable thought and vulgar and seditious conspiracy; it served as a way for mainstream liberals to appear patriotic and mainstream conservatives to neuter populist campaigns. Christopher Hitchens was maybe the most absolutist of free speech absolutists during the War on Terror decade, but he could never abide to share a stage with a “conspiracy theorist,” which he saw as “the exhaust fumes of Democracy,” all while parroting IF Stone’s claims that official documents and media reports are trustworthy because the ruling classes will not lie to themselves. Hitchens had raised himself up to access semi-legitimacy in the propaganda platforms, and would fully defend “Free Speech” when it meant including anti-capitalist and anti-Christian harangues in mainstream discourse. But he would not stand for material attacks on the Sovereign—the propaganda channels themselves.

Similar discrimination occurs even amongst those with absolutely no power. In dissident spheres accusations of conspiracy theorizing get tossed around to stifle argument; you see it when one deviates from criticizing immigration to talking chem-trails, when you go from talking about the Gay-Industrial Complex to Barack Obama’s meth-fueled faggotry. The question isn’t whether these accusations are true or false, for if the matter were only about veracity it would be enough to argue the point and leave it at that. The matter is about whether the topics broached can still conceivably be had within the legitimate political sphere, assuming right-wingers ever got a place at the table. Obama’s affair is tabloid-level stuff, but as Ron Unz has pointed out, if true it raises questions about the legitimacy of the whole system, and why both major candidates of 2008 were as deeply compromised as could be conceived. It was never and could never be the topic of political debate. For to hold the views of a conspiracy theorist is, whether one knows it or not, to hold the views of the seditionary. And even if the powers that be did an about-face on racial preferences and traditional morality, they would still disallow the truths directly subversive to the stagecraft of our democracy.

During the latter half of the 20^th Century this was completely legal—one could stock his selves full of books by Michael Collins Piper and The New Pearl Harbor. But at no point did these conspiracy theorists have Free Speech, for none of their perspectives were allowed to filter into the governed. The fact that one possessed knowledge about these conspiracies and was so imprudent as to speak them aloud showed that he was beyond the pale of being worthy to rule. The apparent chaos of the late-century system was not actually chaos at all. The anarchic tendencies of speech were kept within strict bounds. And such can be no surprise to us. For the sovereign has a right to protect its legitimacy against the clamor of sedition. It was a historically novel form of censorship, possible only in a technocratic state, but it was the most perfect form of censorship, one largely unrealized as such and whose oppression the vanguards of Free Speech did not perceive. Such was the power of the era’s propaganda mechanism.

5.

But of course, the Free Speech regime we lived under in the late part of the 20^th Century is over. This isn’t because liberals became “woke,” for they were always Stalinists at heart. Insofar that such a thing exists, “woke” is a concrete reaction against the new realities of social media as the dominant form of communication. Trump’s election push exposed how little the mainstream press knew about social media. It took the various Russia hoaxes and Coronadoom for them to find their place as social media influencers with venerable 19^th Century fonts. They have succeeded wildly. A propaganda regime that could not stifle DJT in 2015 can now convince the American public to toe the line of World War III on the behalf of the most corrupt nation in Europe. They have succeeded in embracing the all-consumptive nature of social media, of its ability to efface history against its constant din, its ability to turn all reality into a kind of fan fiction. It is astonishing stuff, the kind of propaganda coup that Walter Cronkite and Jimmy Duranty could never have pulled off. Our new media are totally immersive, totally able to occlude any vantage of the past and destroy the premises of logic and reality.

It is the technological change driving the recent crackdown on speech, much more than a blatantly ideological shift. This is why Ricky Vaughn is being persecuted now. For Ricky in his genius and skill brought rightwing discourse out of mere expression and conspiracy theory and into the realm of true Free Speech—of speech that is efficacious or at least threatens to be. This is the heart of the Ricky Vaughn prosecution, for Ricky’s twitter profile was emblematic of the new media, and the new necessities in regulating speech critical of the regime.

Most people who know or care about the case hold it out as a matter of Free Speech. This is true in a sense, but we should scrutinize how tenuous the claim actually is. Ricky was prosecuted and convicted under a United State statute from the Reconstruction Era, Section 241, which prohibits “conspiring” with others to deprive another of his rights. As a fair and impartial Brooklyn jury described, Ricky did this by posting a meme suggesting that Clinton voters ought to vote by text message. The content of the meme would not so much be at issue were it not for alleged talk in a DM relating to suppressing black turnout. In other words, he engaged in forbidden conduct, namely conspiring to injure, threaten, or intimate another out of a right or privilege, and was convicted for such. Ricky’s appellate lawyers seem to at least partially agree, and in a letter to Yale Daily News, his attorney pointed out that the crux of their appeal was not Free Speech, but the fact that Section 241 had never been used to punish online communication. “If a team of federal prosecutors never came up with this convoluted argument after pursuing this case for more than three years … how could Douglass Mackey be expected to know his conduct violated Section 241 in 2016?” A law must be published and made known before it can have force against the public. But what do you do when the prosecutors themselves are ignorant of the law’s regulatory power before they use it?

Other aspects of the case are far more troubling: Ricky was never properly given discovery material relating to one of the rat accusers in the DM group, thereby violating his rights to confrontation; he was tried in a hostile jurisdiction on the most tenuous basis; and no one was actually harmed by his conduct—lex not curat de minimis? Appellate victories on these issues could do a world of good, and all of them would form a better precedent than can be won for the First Amendment. His meme was clearly a lie (if not clearly a joke), and while the 20^th Century Warren Courters sometimes gave protections to liars—for the sake of allowing Northern media to blatantly besmirch Southern segregationists—there is no strong foundation to allow this to negate the conspiracy for which he was convicted.

What I mean to say is that the call for “Free Speech” is as I have described it above: An ex post facto justification for conduct that otherwise runs afoul of the law. I’ll be happy to see Ricky win any way possible, but should he triumph on “Free Speech” grounds, it will do the least good possible. As Eugene Volokh has stated, even if Ricky survives this challenge, Section 241 could be narrowly construed or rewritten (in line with similar state statutes) in such a way that would allow such prosecutions in the future. I’d rather see changes in the more substantive realms of law to protect my friends and myself than hold the delusion that Free Speech can actually long protect us.

Peter Brimelow announced recently that his VDare website would soon have to shut down—driven into extinction by a grotesque New York prosecutor seeking onerous discovery from his Virginia nonprofit. It is difficult to say that VDare’s plight even involves Free Speech, because Free Speech is related to exceptions in the law. But VDare is being charged with no crimes, and it can be difficult to say there conceptually be an affirmative legal defense against a supra-legal cause. Again, I hope the Brimelows do all they can against this bogus persecution not even rising to the level of prosecution, but calls to “defend free speech” as opposed to, say, limiting the subject matter jurisdiction of prosecutors, is empty chiming.  

And of course these prosecutions are prelude for going after Trump. Trump’s cases more directly concern political speech, and whether suppressing “misinformation” about government processes, namely the propriety of our fraudulent elections. This is all wicked tripe from an evil government. But Trump has it coming. The man’s cardinal sin is believing words have meaning independent of action. Instead of actually leading a revolt against the fraudulent election, instead of establishing a legitimate system, he absconded and formed a website called “Truth Social” dedicated to… I can’t finish this sentence, it’s embarrassing. The man holding the levers of power absconded to the digital marketplace of ideas—to do what? Maybe Trump is shrewder than anyone thinks, and he truly is prepared to bring one-man rule out of personal commandeering of modern media channels, such as no individual ruler in the West has done since the 1930s. But don’t hold your breath.

The Truth will Out! Shift the Overton Window! So much garbage about the Overton Window! The very notion that shifting the topics of discussion must result in political change shows how deluded even wizened rightists are about the marriage between free expression and effective politics. Certainly this was the call of race realists posting FBI crime statistics all through the Trump years. Yet where has this liberalized discourse landed us? With the people and organizations that supported him scattered, immiserated, and imprisoned, and mention of such truths verges more and more towards the explicitly illegal. All the “consciousness raising” has done exactly nothing.

CONCLUSION

My purpose with this essay has not been to diminish any fervor of opposition. Undoubtedly you should use “Free Speech” most speciously whenever you get the chance. But this doesn’t mean you should believe in it. We have never lived under a system of unregulated speech, as the idealists dream of and some fools aver could plausibly exist. Trump seems to be amongst this group, those who think Speech itself is powerful, that it is anything more than an instrumentality for gaining power. They worry about being “hypocritical” in using different standards for gaining power than ruling. Even right-wingers refer to the practice as “quashing dissent,” as if dissent were per se some virtue. No, dissent is only meritorious where the governing power is evil, as ours is, and opposing it is an act of virtue. But let no one comfort himself with some alleged right to dissent. There is none; insofar that the ability to dissent exists, it has always been one that is constrained to the point where it can do no actual harm.

“Free Speech” has for too long been a charm word meant to set in motion the magical transformation coming about through peaceful self-governance and truth conquering all. It is all bogus, and shows how long the First Amendment has been a palliative for a tyrannical government. This is not to say that there is no intrinsic utility or nobility in seeking and speaking the truth for its own sake. But at no point should truth be confused with intrinsic power. Immanuel Kant had declared, If the public is allowed freedom, enlightenment is certain to follow.” Believing this kind of rubbish is how you get yourself killed.

The new speech regime is more oppressive than the old one. An acknowledged right existed in the old (pre-smartphone) regime allowing a man to pursue the courses of truth even if he could not give the truth, once revealed, practical force. This attitude carried into the digital realm; prior to Trump’s election you used to be able to discover all kinds of weird and controversial material on mainstream sites. But Trump’s election proved the digital realm was too unpredictable to rely on the old modes of speech regulation; hence the reliance on outright censorship once thought anathema to liberals. But even this seems to be easing a little as the powers that be get comfortable with the full force of the new propaganda media. Their total victory in the course of Coronadoom and the election controversies can’t help but set a new baseline for implementing regime policies. And even the existence of Elon Musk’s free speech platform hasn’t translated into any sensible response to the corruption of the Ukraine war and the border invasion.

The regime and “liberal media” have always set the gestalt of political reality. They are just now finding, along with so many social media influencers, how little depth these foundations need have in order to be dominating. The Putin really is like Hitler, that Biden really is competent to run an administration are now facts that can be baldly asserted without any need for elaborate lies to back them up. This arouses angst among the old-school New York Times and NPR reporters who used to work hard to manufacture consent, that a whole generation of journos who strove to be Walter Duranty have been replaced by teenage fashion vloggers.

It is no good to lament the passing of the old system of regulation. Free Speech is and always has been a concrete application of the state of exception. What constitutes Free Speech is always something the sovereign has decided. And in earlier and freer times, when the American people could claim for themselves the trappings of true republican government, something like widespread Free Seech could hold. But this era ended long before the birth of anyone reading this. And modern Free Speech law has largely confirmed the shift away from the semblance of a sovereign people. Throughout the 20^th Century, the totem of Free Speech has been a bane to capturing political reality. The notion that speech is completely free, or that it conceptually could be completely free, has distorted the nature of how our system actually works and where sovereignty actually lies.

Tossing off the political delusions that have arisen around Free Speech would be a great boon, both in a practical and moral sense. Maybe the first great propaganda document for the First Amendment was Milton’s Areopagitica of 1644, favoring the doing away with prior restraint and encomium of truth for truth’s sake. It still holds cache among jurists, and was used to enshrine in the Constitution the right to legal lying New York Times v. Sullivan. Few ever mention the context for the thing: That Milton would soon lend aid in the murder of his sovereign and help establish the dictatorship of Cromwell. The Areopagitica is the poor work of a poetic genius, the output of a scoundrel in defense of himself and his compatriots’ treason. However supposedly high the ideals pronounced within it, the work was always the defensive brief of a traitor, and its advocacy for freedom was always a way to install a political ally (and get its author a job as censor). The moral is that Free Speech belongs to the sovereign and his allies, as it always has and always will.