Guest blogger Richard Epstein of the New York University School of Law argues that the principle of free speech is in danger of being forgotten. Transparify does not edit the content of guest blogs; the views expressed in this blog are those of the author alone, and may not reflect the views of Transparify.
Ninety five years ago, Justice Oliver Wendell Holmes uttered in Abrams v. United States the one sentence that encapsulates best the ideals of the First Amendment protection of freedom of speech:
“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.”
In that case, Holmes protested the conviction under the Espionage Act of socialists who protested the United States’ involvement in the war against Germany. The dissent that became law took the view that there was no direct incitement to the use of force or fraud, so that the speech was protected no matter how much discomfort it gave to those who disagreed with it.
That principle, which gained much support in the aftermath of the First World War, is now in danger of being forgotten. I am struck today by how many people are so sure that they know the right answer that they think that their solemn duty is to expose the bad motive and corrupt arguments of their contemptible opponents.
One instance is of course the opposition to global warming, which has if anything gained some momentum because the original gloomy predictions on the subject have not been supported by the most recent evidence which shows little or no global warming over the last fifteen years even though there have been substantial increases in the levels of carbon dioxide in the atmosphere.
No one should say that this single data point necessarily means that the debate is over. But it should caution us to be aware of the apocalyptic visions of doom that lead to the denunciation of any individual or organization that takes the contrary position.
I read with dismay the guest blog recently offered by Robert Brulle on Transparify’s website that denounces those nameless conservative foundations for their hidden support of think tanks that speak the forbidden language. But what is striking about his and similar arguments is that they take it for granted that his opponents “deny scientific findings about global warming and raise public doubts about the roots and remedies of this massive global threat.”
Yet at no point is there the most meager effort to look at the evidence on both sides of the issue so that readers can make up their minds. Instead we are told that it is now imperative to engage in “rating think tanks on their transparency.” But it is never explained who is entitled to the high ground on this issue, or how the rating process will be viewpoint neutral if the raters themselves have strong substantive views, as Professor Brulle surely does.
The only cure, I think, is competition in the rating market. Holmes would have approved.
Richard Epstein is a professor of law at the New York University School of Law. He is also a senior fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and a policy advisor for the Heartland Institute. He is a prolific blogger and the author of several books.