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Alan Krinsky Headshot

What Do We Do When Freedom Undermines Freedom?

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In a free society, what do we do when the full expression or fulfillment of a core principle results in its own undermining or destruction?

For instance, what if someone uses the free market to gain a monopoly or otherwise suppress the free market? Or builds institutions too big to fail, meaning that they accrue profits in good times but pass debts to the public in bad times?

What if someone uses free speech to silence others? And what if equating money with free speech subverts the democratic system by selling access and air time to the highest bidders?

The current debate over financial reform, along with the recent Supreme Court decision on corporate election spending as free speech, raises such issues.

Indeed, if we really believe spending money on elections ought to be protected free speech, then what is the justification for restricting any speech? Why should there be libel and slander laws? Let people say and publish whatever lies they wish, let the victims use their own money or free speech to counter such lies, and let the public adjudicate.

Why should there be laws against false advertising? Let manufacturers and merchants make any claims they wish. Why have product safety laws? Let people produce and sell whatever they wish: toys made with toxins, cars without airbags or even seatbelts, food without any health safety oversight. Private organizations such as the Consumer Union, publisher of Consumer Reports, or AAA can vet products, services, and ads. Whoever can afford access to their reports might manage some protection against lies and faulty manufacture. However, if we truly believe, in a profound, absolute way, in the free market and in free speech, why should we have any governmental restrictions or regulations?!

But, of course, we do believe in restrictions and regulations. Except for the most extreme anarchist-libertarians, we recognize the necessity for some breaks and buffers. For, if the free market and free speech have unlimited license, they will consume us and the free society that gave birth to them.
So, if we agree we need regulations of some sort, then we need to figure out what they should be. We have already established the undeniable necessity of regulating free speech and the free market, now we just need to negotiate the extent and limits of such regulation.

In the United States, there is a widespread and longstanding fear that government will do an unsurpassably poor job of it, but no other institution can provide and enforce such regulations. Therefore, we might as well avoid hysterics and come up with some reasonable principles, ones that will preserve as much freedom as possible while securing the stability of the market, the political realm, and society in general. And we ought to leave ideology aside as we do this, relying instead on evidence and what works.

For example, we might reasonably suggest that there ought to be restrictions on companies becoming too big to fail, because such organizations undermine the market by privatizing profits while socializing risk.

We might have an extended public discussion about the virtues of our democratic system and what it truly means to have a meaningful, participatory democracy. How can citizens have a voice? And does the amount of money and the influence it buys corrupt the system and its ideals? Is it possible that certain restrictions will advance and preserve our democracy? And if so, can we not as a society accept such restrictions?

Finally, do we really believe that the founders of our nation and the authors of our constitution believed they were articulating principles that could undermine the nation itself? That they believed in an unregulated free speech that could hinder free speech and the democratic process, or in an unregulated free market that would make the market less free and thereby increasingly concentrate wealth among a small minority?

We ought to entertain such questions and engage in thoughtful rather than polemical public discussions about them.