Plato, Democracy, and Republics, and Free Speech: Random Thoughts

 The rise and fall(?) of Trump and his control of the media has given us a lot to think about.

I've been putting together a presentation on the Supreme Court and doing some reading on the role of the majority as it relates to majoritarianism and judicial restraint and judicial review. Always curious to see what my Goodreads friends are discussing I did some poking around there.

Goodreads has an excellent feature that creates a perfect platform for intellectual discussion groups.  Of particular interest is one entitled Political Philosophy and Ethics moderated by Alan Johnson, author of The First American Founder: Roger Williams and Freedom of Conscience. I was intrigued by a discussion of Karl Popper, an Austrian philosopher, whom, in my ignorance, I knew nothing about. The discussion revolved around Plato's view, based on the Athenian experience,  that majoritarian democracy in inherently flawed as it contains the seeds of its own destruction. What if the majority wants to be governed by tyranny?  I have been mulling over the suppression of Trump's horrid tweets by tech platform managers, and now the Democratic Party's installation of those who would have the government take a more proactive role in controlling content on the Internet. It would seem a Hobbsian choice. Should uncontrolled large for-profit entities be permitted to control what is permitted to be said; or, do we want the government, elected by a majority (most of the time - sometimes prevented by the Electoral College, designed to prevent just that?) to control content.  This is the old McCarthy argument: how can we permit Communists to be allowed free speech when their goal is to suppress that speech.

One of the participants quoted Popper who wrote:

“The so-called paradox of freedom is the argument that freedom in the sense of absence of any constraining control must lead to very great restraint, since it makes the bully free to enslave the meek. The idea is, in a slightly different form, and with very different tendency, clearly expressed in Plato.

Less well known is the paradox of tolerance: Unlimited tolerance must lead to the disappearance of tolerance. [my emphasis] If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. — In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal.”

― Karl R. Popper, 'The Open Society and Its Enemies'

It's an appealing argument, especially if you are in the majority.  One could argue that was the purpose of Parler, to create a completely unregulated platform.  But we can all see how well that worked out. Alan suggested that the creators of the Constitution were well aware of the problem and tried to build in defenses against tyranny by the majority. The Electoral College and Separation of Church and State (the tension between the establishment and free exercise clauses) for example could be so interpreted.

The Supreme Court's handling of so-called seditious speech has been mixed to say the least. Adams's enactment of the Alien and Sedition Acts during a time when fear of war with France was opposed by the Jeffersonians. Fear of external (or even internal threats) has been a strong promoter of speech suppression. Alan cited  Schenck v. United States, 249 U.S. 47 (1919), in which the "U.S. Supreme Court, held that the distribution of leaflets to cause insubordination and obstruct recruiting and enlistment in the military and naval forces of the United States during the First World War, in violation of the 1917 Espionage Act, was not protected by the First Amendment to the U.S. Constitution."  The decision contains the famous phrase, "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . ." Whether that protection should be accorded to Cruz and Hawley who shouted the falsity that the election was stolen, is another matter. Texas v Johnson ruled that legislation banning flag burning, the symbol of our country, was unconstitutional.  Just what should the balance be?

Some references:

"Property V. Liberty: The Supreme Court’s Radical Break with Its Historical Treatment of Corporations | Perspectives on History | AHA." AHA. Accessed January 22, 2021. https://www.historians.org/publications-and-directories/perspectives-on-history/summer-2014/property-v-liberty."  Not completely germane, but quite interesting. 

ACKERMAN, Bruce. The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy. Cambridge: Harvard University Press, 2009.  Ackerman writes that Jefferson created a plebiscitarian government that relied on the will of the people and the countervailing role of the Supreme Court.

 

Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven: Yale University Press, 1986.  Bickel argues judicial review is counter-majoritarian.