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Expression Affects Third Parties

My latest column for AIER is the first of a two-part series on the similarity between expression (such as is done when we speak or write) and industrial activity. A slice:

Importantly, freedom of expression implies freedom to spread, whether inadvertently or intentionally, information that’s mis, dis, incomplete, or otherwise faulty or confusing. The very logic of the core case for freedom of expression is rooted in the realization that the best test for the veracity of any bit of knowledge or information is its ability to win acceptance in open competition with different bits of freely expressed knowledge or information. Some bits of information and knowledge ‘win,’ at least temporarily, over other bits. But these victors remain forever subject to being deposed in favor of alternative ideas.

A regime of free expression, therefore, cannot be said to ‘fail’ simply because it features false or misleading information. The production of ideas that are later exposed as ‘false’ or misleading is baked into the logic of a policy of freedom of expression. Furthermore, we rely upon private actors, not government officials, to police against faulty information and to devise the appropriate responses and ‘solutions.’

Opponents of freedom of expression typically justify their favored restrictions by insisting that, absent these restrictions, the public will be unjustly harmed by the unregulated emission of dangerous ideas. For example, “If Smith is allowed to contradict public-health authorities on the dangers of COVID, then people exposed to this disinformation will behave in ways that cause them and others to get sick and die. Government must prevent such harms!

The alleged justification here for government intervention is that freedom of expression harms innocent third-parties. Smith’s words are toxic pollutants emitted into the brains of innocent individuals. Fortunately, though, most liberals, both of the classical and modern American varieties, continue, for reasons reviewed above, to look askance at government intervention aimed at controlling such ‘thought pollution’ – which presents something of a mystery. If government intervention to control the emission of ideas is widely believed to be not only unnecessary but also a positive danger, why is government intervention to control the emission of physical things – say, carbon gasses – believed to be necessary and good?

The reason for this difference cannot be that carbon emissions are harmful while ideas are not. There is likely little social upside to pornography and arguably real downside. Even worse, antisemitism and racial bigotry are nasty and harmful ideas that sometimes lead to the death of innocent people. Yet liberals are deeply reluctant to empower the state to shut down pornographers and to restrict bigoted speech. Such reluctance is right. Nor can the reason for this difference be that there is no upside to the activities that emit physical pollutants. Production of the likes of tires, furniture, steel, speedy transportation, and air conditioning and home heating is surely good for humanity. But such production requires energy and it produces harmful by-products.

A plausible case can be made, I think, for treating physical pollution in the same way that we Americans treat bad ideas – namely, relying for the policing and control of physical pollution on private actors rather than on the state. All sensible people understand that government officials cannot be trusted with the power to filter out ‘unacceptable’ sources of information from ‘acceptable’ sources. Why, then, do we trust these same officials with the power to filter out ‘unacceptable’ sources of industrial emissions from ‘acceptable’ sources?

In my next column I’ll lay out the argument – admittedly a difficult one – that the same strong (albeit not insurmountable) presumption that we apply against government attempts to police emissions from our mouths and keyboards should apply also against government attempts to police emissions from our factories and automobile tailpipes. At the very least, analogizing physical emissions to the emission of ideas provides useful insights into some potential pitfalls of turning to the government to regulate industrial emissions.

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