Everyone is wrong about free speech
A rhapsody of rights
I started this piece in 2022 during the Twitter Wars, before Elon Musk bought the platform.
The drama of Musk’s acquisition loomed, unfolded, and settled, invalidating my references to Twitter on a regular basis. I wasn’t even trying to write about Twitter. It was just a timely illustration.
Last week, I took a fresh look at this piece and decided to finish it.
Turns out, it is a rhapsody.
Don’t worry about the length. Rhapsodies go fast.
Free speech, the most exalted Western freedom, has no meaning unless anchored in property. In fact, property is the anchor of all freedoms, amid swirling blusters of conflicting rights and circular preferences. Sadly, the free-speech discourse of 2022 reduces property to an asterisk reading “Twitter is a private company,” followed by debates on whether it really isn’t, while completely failing to discern community standards from censorship. That is why everyone is wrong about free speech.
A community is its people and policies
In your karaoke bar, you built a stage for karaoke. It is not for poetry reading, juggling practice, or astrophysics lectures. Those things are legal, and they are “speech,” and your customers approve of them, but they are not welcome here, where people come for karaoke. More importantly, you do not want them here, because you created this community for your purpose, which happens to be karaoke.
Your audience may think the bar is their community, but it is yours, and you might suddenly choose to cater to poets, jugglers, or astrophysicists instead, for your own reasons—maybe when you get tired of karaoke. Your customers’ disappointment would not entitle them to overrule you. Instead, let one of them (just one!) start their own karaoke bar, if they even care enough to lift a finger, as you once did with no promise of support, before the place ever existed.
Muh censorship
One day, you prohibit “death metal” in your karaoke bar: screechy, thrashing hard rock with explicit themes of horror and destruction. You do this because customers have complained, or because you yourself are offended, or because death metal amateurs fall especially short of their professional heroes. This goes beyond defining the activity: now you are banning one style or subculture while permitting others. Does it matter? Is it censorship? Is it your right, or are you oppressing someone?
Well, no, no, yes, and no. You made this place, and you are not indentured to your audience. Fans of death metal may feel betrayed, and fans of radical free expression offended, but as your time and effort are yours, it is entirely up to you to choose the audience you will cultivate. Supplying ear plugs may or may not help, but that too is your decision alone. Your new policy will repel some and attract others, as all policies do.
Do your job well, and your audience will thank you for a deeper sense of community, a more coherent set of shared values. We do not need One Karaoke Bar to Sing Them All, and if we did, who would be its audience? It would have to embrace styles so obscure that virtually no one would call them music.
Enforcing your standards on your property is free speech, not censorship. Censorship is when someone else enforces their standards on your property.
Muh fascism
But what if the government opposes death metal? Are you an independent private voice who just happens to agree, or are you a tool or a victim? Are your customers equal partners “voting with their feet,” or have they been corralled and exploited as a captive audience? And whose fault is it?
Well, unless you have defrauded or detained your audience, you can do no wrong in your own karaoke bar. Ban the name “Elvis” if you want, kick people out for a Flock-of-Seagulls haircut—you are accountable to no one for mere policy. Grow your audience, shrink it, cater to a niche and cut your expenses to balance lost revenue, or go into debt… if you’re happy with the consequences, it is literally no one else’s business.
For the US Government, however, the slightest involvement, soft or hard, direct or indirect, is a literal crime against its Constitution and every agent’s oath to uphold it. Even if you willfully collude with the government in secret meetings to ban death metal, unless you ever claimed otherwise in a legally binding way, it is their crime alone. And what does “willfully” even mean when facing agents of an armed sovereign force?
When exposed, they are criminals who have broken oaths of office, while you merely suffer your audience’s reaction. Perhaps your audience will swell with death metal haters and love you more than ever. Perhaps they will abandon you for betraying American values. Knowing their hearts and minds is literally your business.
This is how community standards work on your property, in a world of respect and consent. You and your audience discover mutual values together, always experimenting, negotiating, tolerating, or rejecting. You are not indentured to them, and they are not indentured to you. Choosing them and catering to them is your business. Evaluating you is theirs.
In the end, you are under no obligation to share your property or time or effort with any audience. Whatever you create is a gift to the world, in case some part of the world is interested. The alternatives are not about respect and consent—see the heading of this section.
Muh public square
But surely there is some public space with different rules—shouting in front of Town Hall, protesting in the middle of a street, yelling “fire” in a crowded theater—surely these are special situations requiring more thought and exceptions. Well, are any of these your property? No? That was easy.
Perhaps you do own the crowded theater. Then indeed you will ban unruly conduct, including yelling “fire” for no reason. It does tend to spoil the movie.
Who owns the property of Town Hall? Though I’ve never seen the property deed, the real owners would have to be the people with the authority to repaint it, trim the shrubs, and choose the furniture. Did you vote on the paint chips? If you strode into the office right now demanding to know why you were not consulted on the shade of “egg shell cream,” would you pass the laugh test? No, you are not the owner, not even an owner. Lawyers can debate whether you are part of a custodial body that irrevocably granted authority to some council, or you are a board member voting to pick the management team, or something else. Bottom line: it may be public property, but it ain’t yours.
Who owns the roads? Roughly the same people who own Town Hall, for better or worse. Their mission ought to be to provide the best A-to-B transit experience. They seem to think this includes (a) allowing limited pedestrian crossings, (b) banning picnics on the pavement, and (c) allowing favored activists to block it for publicity. I agree with them on (a) and (b), and I’m not even anti-picnic—where are the picnic activists disobediently spreading their blankets in this “public space”? Item (c) indicates that the mission is not quite transit but is maybe garnished by one of those shimmery legal penumbras. Did they consult you about this penumbra? No? Exactly.
Property with multiple owners, whether a limited partnership, a multinational corporation, a local government, or any other form, is governed (by definition!) by a contractual flow of authority. If you hold a place in that flow, then do your duty. Otherwise, whether the property is public or private, it ain’t yours.
Twitter is a private company (right?)
Is Twitter like your karaoke bar, or is it like Town Hall? Either way, (sing it with me now) it ain’t yours.
Twitter used to be a “public company” run by a CEO, subject to direction by a board elected by shareholders—also called a “private company,” as in “Twitter is a private company”—until new CEO Elon Musk “took it private” like your karaoke bar but with the stability of a management team.
But even if it were literally run by Town Hall, its contractually defined flow of authority would still have to face “death metal” with the same responsibilities and tradeoffs as your karaoke bar. For a broad-based “public” audience, Town Hall’s best responsible decision would be at least a limitation of scope (no death metal until midnight, no kids under thirteen…) if not an outright ban. I mean, you brought your seven-year-old to sing “Yellow Submarine,” and she has to sit through this?
Death metal fans would object that you can’t force them to fund (with their taxes) a place that is (mostly) not for them. This is why we don’t let Town Hall run karaoke bars or churches or newspapers, and we don’t let the US Government run social media or anything else defined by a community standard. If you are aghast at how little this leaves for government to do, you are beginning to get it. Keep at it, and you may deserve to be called “liberal” (see Thoreau’s first sentence of “Civil Disobedience”). We do not need One Platform to Tweet Them All, and if we did, who would be its audience? It would force everyone to tolerate technically legal tweets—from doxing and bullying to flirting with genocide—that virtually no one wants.
Other critiques of Big Platform amount to breach of contract, defamation, or financial damages: capricious enforcement of terms of service, banning users for false charges, or recklessly demonetizing income streams. These are classic breaches of contract that have been litigated in Western courts for centuries, not a Constitutional crisis. They indicate growing pains in the social media industry and a need to rethink policies such as Section 230, not a call to subvert the basic principles of free speech, private property, and limited government that have created modern prosperity and spread it all over the world. People wanting to subvert those things need a far better reason.
“Public” means you are forced to fund a thing without owning it. “Private” means only the owner is funding it, with revenue from willing participants. “Fascist” means you are forced to fund its managers who do not own it and did not build it. That itch in your head is the Venn diagram already drawing itself.
Muh emergency action!!
You’ve probably guessed by now, so I admit it: I am a cyborg sent back in time by your future self to save humanity. Twenty years hence, you lie shivering on a steel floor in solitary confinement, renditioned offshore by a FISA court for your illegal speech. There are no charges, no lawyers, only confessional beatings. You were part of a dangerous speech insurrection that broke out on Twitter and threatened Our Democracy. Actually you weren’t, but authorities had you on a watch list, and then you clicked Like.
You see, in 2022 you convinced us to pass the Social Media Free Speech Act which, of course, restricted social media speech. You had good intentions, delicately guiding the platforms and their policies in a way that you didn’t quite consider “censorship,” to make sure this Twitter nonsense could never happen again. You had awakened from your naïve libertarian slumber to a shrewd realpolitik: “Enough of this private property idealism. We gotta do Something!”
The US Government was surprisingly glad to help, and you approved all the safeguards yourself. You were street smart and hard-balled, and this could only be used against the bad guys! Then the words began to twist, the goalposts to shift. Senators served up your own phrases expertly reframed to make the opposite point. Who could have anticipated that?
It’s almost embarrassing to point out: don’t become a gotta-do-Something activist sniveling post hoc about your good intentions. Did you learn nothing from The Patriot Act? Selling out private property, free speech, and limited government in an adrenaline-soaked panic isn’t going to work this time, either.
But don’t worry, I’m here to change all that. This time around, we’ll redirect your efforts toward the government abuses that created these problems and thwarted the usual solutions. This time, your carefully crafted words will confine government, not expand it. True, it probably won’t listen much, but what’s new? The least we can do is avoid handing it a whole new weapon of regulatory power to abuse even more. Duh.
More importantly, we will not have sold out the known engines of human prosperity for the likes of Twitter, which as they say, is not even a real place.
Muh absolutism
Where does this leave the sacred cause of “free speech absolutism”?
Nowhere. It’s even less real than Twitter.
Not one “absolutist,” after boldly proclaiming himself, has gone a week without having to ban some outrageous, barely-legal content. And you know you wouldn’t want that shit in your feed. It would take days to flush it out of your mind’s eye. “Block” buttons don’t help; you have to see it to block it. Do I need to invoke The Children scrolling past it on the middle school playground? Or is that cheating?
But I don’t need these rhetorical extremes. You’ve already agreed to ban astrophysics from the karaoke stage. Poor Hailey O’Sentrick is not allowed even the briefest mention of orbital precession between your “adult rock” hits. You science denier!
Town Hall lets a bunch of Leftists shut down Main Street and commit low-grade violence to protest civilization, but see what happens if you spread a picnic blanket in the parking lot. Are you outraged? Are you going to fight for picnic absolutism? Good point, it’s not exactly speech; then fight for Hailey’s right to lecture you about the equinoxes as you park your car. If not Hailey, perhaps a live death metal band.
See, “absolutism” just means “no standards,” which means “no purpose” and “no community.” It means forcing everyone to tolerate technically legal content that virtually no one wants. It is a tragedy of the commons, ownership by all, collapsing to ownership by none.
If you value something, you want it properly managed and cared for. You want it owned by some contractual flow of authority that acts as if it has a purpose and gives a damn. It builds a road that is not a soapbox, a library that is not a homeless shelter, a park that is not a drug den.
BUT didn’t I say that
Enforcing your standards on your property is free speech, not censorship. Censorship is when someone else enforces their standards on your property.
Yes, well, that “free speech” is the good kind! The kind that boots the astrophysicist off the karaoke stage and the picnickers out of the parking lot. The kind that creates a public library without the smell of urine, where you can leave your seven-year-old alone for a few minutes and your laptop open on the table while you go to the restroom. The good kind of free speech is the property owner’s right to shape the community he is building, including all aspects of behavior, including speech.
The “absolutists” are talking about its exact opposite, the bad kind, where the owner must allow every crazy indignity and abandon his duty to give a damn, where you hold your nose every time you walk through, desperately reminding yourself that you want this affront because of “principles.”
Those are some messed-up principles. You tried to do “rights” without “property.” Is that (a) communism, or (b) fascism? Pick the closest answer. Number two pencils only, fill in the bubble completely.
Muh common narrative
We don’t need One Platform to Tweet Them All, any more than we need to squish together CNN and FOX, or the NY Times and Post, or Harry Potter and Veggie Tales. Think of social media’s cultural split as busting up a cartel, by the cartel’s own hand! We small-government types have always chronicled how the market busts its own cartels better than government. What an excellent example to add to the list! It’s messy as hell, but there’s no known alternative that actually works without being captured by the same old masters.
We have been granting Twitter undeserved legitimacy by treating it like the People’s Democratic Platform of Universal Tweets, and getting upset when it failed that standard, while it was really just someone’s very popular karaoke bar, and they were getting tired of our death metal.
This is where you roll eyes at me saying, “Make your own web site,” but you’re in luck: others already have. Equivalent or better platforms have existed for decades but were just not in demand, until the social media cartel obliged by banning sincere political dissidents en masse. Now platforms like Rumble, Substack, and Locals are thriving because of the bans, and alternate payment systems are sprouting up. It would be a setback for them if Twitter regained universal status.
I hope fragile, authority-craving conformists find a happy home unthreatened by critical thoughts, but stripped of the illusion that they are in anything but a bubble or that their warped concerns are “trending.” Plenty of them are nice people, some are my friends and family. Leave them be.
Besides, a common narrative is what every tyrant wants for his birthday. How else to pull the levers in the minds of so many at once? Without universal levers, the tyrant cannot convert propaganda to power, and a mob cannot recruit its shock troops.
Happy birthday, tyrants! We got you a thriving, popular narrative.
Universalism, the good kind
A world of splintered narratives is a world of tolerance and interoperation, a Chinatown next to an Ahmish village, next to an Orthodox Jewish enclave, and many more. Assuming they don’t kill each other (already a crime), they will take turns at intersections and buy each other’s goods. They will be curious and learn from each other’s successes. Though set in their own ways, they will be highly aware of their neighbors instead of stewing in isolated ignorance.
The online version is a universal protocol that builds you a timeline from the content feeds of your choice, merged and sorted however you want, bringing you digital freedom of association on your own terms. We’ve had one for over twenty years, and it’s still in massive use right now. It’s called RSS.
RSS powers the feeds of every podcast app and most other feed-based technologies. It is shunned by the big proprietary platforms, to keep you captively viewing their ads on their web pages, but it’s so integral to so many technologies, that even the shunners use it internally and tend to have little-known backdoors where you can access it. Using it liberates you from their pages and puts pressure on their closed business models.
There are plenty of other business models. If these platforms lost their universal status and could not consider you captive, they would have to open up to RSS, hoping to grab a share of your attention from outside their walls, begging you to slice and dice them onto your screen, to merge and sort them into your custom timeline. Your grandkids will marvel at how you once pined for a chronological Facebook feed. And how you cranked your phone by hand to charge the battery (wink).
The era of monoculture is over. Let it die. Splintered audiences need each other and want to interact in peace, even as they enforce their own community standards. Keeping all factions on the same platform is as ridiculous as pushing all religions into the same church.
Even so, one grand universal platform will remain. It’s called The Internet.
No property, no freedom
“Freedom of speech” is not an indulgence for the expression of your democratic soul in a sacred “town square,” nor is it a specialized tool for card-carrying journalists and priests. It is a flashing “keep out” sign over your property, addressed to the federal government.
Your property is where you are free to do what you want. No property, no freedom. Property makes freedom apolitical, an exercise of culture by consent and respect.
If you love your neighbors, set them free. If they love you, they will merge some of your posts into their RSS feeds. And they do love you.
Set yourself free!
Learn how to freelance like the best
with Henry Bingaman’s Freedom Formula
Notes
First Amendment, US Constitution
The world’s most famous amendment begins with five glorious words, “Congress shall make no law,” but then tragically continues. Here is the whole thing:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Are you Congress? No? That was easy.
As for Our Democracy, I would fiercely guard mine too, if I had one.
Rhapsody
“What is a Rhapsody?,” Classical Music, BBC
https://www.classical-music.com/features/musical-terms/what-is-a-rhapsody
Rhapsody in Blue - George Gershwin (Pianist Martin James Bartlett)
Several hundred human beings who could have murdered each other did this instead, in a concert hall built for the purpose. Public or private, it ain’t smellin’ like urine. Why am I craving airline peanuts?
Rachmaninoff: Rhapsody on a Theme of Paganini - Anna Fedorova - Live Classical Music HD
A gorgeous Ukrainian lady summons Rachmaninoff’s imperial Russian soul from a grand piano. Because beauty. Sigh.
Bohemian Rhapsody | Muppet Music Video | The Muppets
Jim Henson’s genius endures. Also because beauty. Sigh.
Isn’t egg shell a texture? Cream is the color or shade.