Brian Lieter's 'against free speech'

 Around 2016 Brian Leiter wrote an article titled 'Against Free Speech' in the Sydney Law Review.

Before looking at it, let me clarify the Socioproctological view of Freedom as relating to some action, as opposed to an assurance, which is more or less costly and which tests or otherwise assesses the range and effectiveness of remedies for Hohfeldian immunities so as to confirm that they can be safely regarded as on going. Only an asshole would define Freedom as the placid acceptance of an assurance. Socioproctology points a finger at such assholes, but, as I have frequently insisted, goes no further. It is a wholly second order theory and mustn't get its hands dirty. 

In other words, Freedom is some action which tests whether it is itself available and which assesses and augments provision for its continued availability. Much of this has to do with Hirschman 'Voice, Loyalty & Exit' with Exit being most important. The relevant metrics have to do with response elasticities and the 'robustness' of trajectories on the relevant Configuration Space. However, because of kin selective altruism, we are going to see utility transfer from, on the one hand, coordination games and their pooling equilibria, to, on the other hand, discoordination games and their separating equilibria. But this is regret-minimizing. Thus we are also going to see some ontological dysphoria. This need not spook us. It is what the Price Equation predicts. 

In other words there is no reason for anyone who studied Econ after about 1975 to worry about shite academic availability cascades in this field. The Science has moved on. Meanwhile, Enlightenment's erstwhile mansion has been turned into a shooting gallery. Campus safe spaces feature woke crack-babies. Give those assholes a wide berth. 

Suppose Freedom came for free. It cost nothing. Then why the fuck would we need Courts, or, indeed, Language to talk about it? If something uses up no costly resources, no costly resources would be devoted to discussing its allocation.

The fact is, Freedom is something with a local and global opportunity cost. It has a mathematical representation on the Social Configuration Space.

 It is rational, under Knightian Uncertainty, to say Freedom for oneself exists if these opportunity costs are verified in a regret minimizing manner. It is not rational to say that they exist otherwise. One may as well give the Nobel Peace Prize to Santa Claus. 

What is true of the individual is true of any given collective. Either there is a collective local and global opportunity cost for Freedom which is being monitored in a regret minimizing way or we are merely indulging in rhetoric.

Leiter takes a different view. He writes in his abstract-

Free societies employ a variety of institutions in which speech is heavily regulated on the basis of its content in order to promote other desirable ends, including discovery of the truth.

This is nonsense. A free society may feature institutions of this description but they would not be 'employed' in keeping it free. That could only be done by incurring a local opportunity cost so as to get an idea of the global opportunity costs involved. In other words, we are speaking of something which is a step up from a fire safety drill but where costs are contained under a regret-minimizing rule. But why 'employ' an institution to do this? Let it happen by itself. Indeed, some members of the Society, who have a stronger interest in preserving freedoms, are going to 'push boundaries' in any case. It is enough if the relevant costs and benefits are computable purely as a matter of Public Auditing of Club Good provision. 

It would not be regret-minimizing to entrust one Institution alone with providing remedies for freedom violations. The Courts are particularly inappropriate venues, though they may be a last resort, for threatened freedoms. It is far better to endogenously improve elasticities of response to such threats rather than rely upon a Judicial remedy which the Executive may well enforce only in the manner of the classic price or service provision discriminating monopolist. It doesn't matter how the thing is rationed, what matters is that it is scarce and so we'd better find gross substitutes for it. 

Leiter highlights the role of courts though, when it comes to freedom of speech, it is not the law so much as illegal reaction that we need to fear. 

I illustrate this with the case of courts and rules of evidence. Of course, three differences between courts and the polity at large might seem to counsel against extending that approach more widely. First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not.

Leiter may be more more fortunately located, in terms of jurisdiction, than most people alive in the world today. However, the fact is Jurisprudence is protocol bound and 'buck stopped' in a particular manner such that it is disadvantaged and really ought not to decide on 'epistemic merits' in any argument concerning Freedoms- which are valuable only because Knightian Uncertainty obtains.  But maintaining that Freedom- which is about elasticities of response under exigent circumstances- requires self-interested actions of a continuous, albeit regret-minimizing, sort. 

This is not the sort of thing that Courts have any experience of or aptitude for doing. 

A free society may not have a 'buck stopped' decision process, but it does have focal solutions for coordination games- which in turn spark hedging on discoordination games. That is all that is required to keep a 'free market for ideas' and to permit enough 'freedom testing'. 

Second, no other non-epistemic values of speech are at stake in the courtroom, whereas they are in the polity.

 I think this is false. The Courtroom is a place where professionals of a particular type advertise their skills with the intention of bidding up the price of their services. It is not commonly observed that such professionals are votaries of 'epistemic values' in speech. 

As for the 'polity'- what is it exactly? In a free Society, one needn't bother waiting to hear the answer to that question. You can simply tell it to go fuck itself, whatever it might be, while you get back to work or back to the pub or the dog-track or whatever. 

Third, the courtroom’s jurisdiction is temporally limited in a way the polity’s may not be.

God alone knows what this is supposed to mean. But it sure sounds stupid.  

I argue that only the first of these — the ‘Problem of the Epistemic Arbiter’ as I call it — poses a serious worry about speech regulation outside select institutions like courts. I also argue for viewing ‘freedom of speech’ like ‘freedom of action’: speech, like everything else human beings do, can be benign or harmful, constructive or pernicious.

But, like everything else human beings do, we don't know, most of the time, whether the thing is one or the other or really doesn't matter a toss in the grand scheme of things. The difference between 'speech' and 'action' is the former has a lower 'opportunity cost' and thus is a major part of the regret minimizing, 'fire drill', test for the underlying freedom.

In a free Society, there can't be an Epistemic Arbiter. There may be various protocol bound juristic processes whose 'buck stopper' is an Arbiter,  and there may be jurisdiction hopping between them. But fuck would we want an Epistemic Arbiter for? Why not an Oracle? How about a Wizard? Sod this for a game for soldiers- let's just construct a Super-computer to create time-travelling cyborgs who will eliminate all life on earth so the place can be run on proper scientific lines. 

Thus, the central question in free speech jurisprudence should really be how to

Virtue Signal like fuck while talking bollocks and getting fat pay-offs from Plutocrats who reckon 'free speech' means giving billions to Republican Reptiles while not allowing Trade Unions to give a penny to Democratic Turds. 

regulate speech effectively — to minimise its very real harms, without undue cost to its positive values.

So this is an 'externalities' approach. In that case, why not pursue Coasian solutions? You get to call me a nigger and I get to shit on your pizza. The Judge offers to pay for the pizza and gives me a handsome tip into the bargain in return for your letting her watch you eat the pizza. This is the beginning of a beautiful romance. Well it could have been. You got typhoid and died. Sad.  

In particular, I argue against autonomy-based defences of a robust free speech principle.

But if Leiter's argument is accepted by the Courts then either their jurisdiction is essentially contested or Society is no longer free as a regret-minimizing test will soon discover. Of course, a lesser degree of freedom could be established at some cost but the global solution is to get rid of Leiter's stupid argument. Why does this not seem to happen? The answer is that it does happen on hidden 'discoordination games' which create arbitrage opportunities and yield rents. That is why the bleeding-heart shithead who curtails liberties actually helps power elites escape from 'open markets' into Tiebout models with 'manorial rents'. In other words, academo-juristic gobshites help the elastic get richer by lowering elasticity for the rest in the name of some freedom or civic virtue or the other.  

I conclude that the central issue in free speech jurisprudence is not about speech, but about institutional competence.

Yes. That's the problem with invoking 'Epistemic Arbiters'. They don't exist for the same reason Oracles and Wizards and Omniscient Computers don't exist. You may say it is the fault of Institutional Competence that Magic doesn't work. You may think that if only Capitalism would just fuck off like you told it to in your sophomore year then Gandalf the Grey would put everything to rights while making you touch his wand which suddenly became all sticky and yucky and you cried and cried till Ayn Rand came and tucked you into bed with a nice copy of Atlas Shrugged. 

I offer some reasons — from the Marxist ‘left’ and the public choice ‘right’ — for being sceptical that capitalist democracies have the requisite competence and make some suggestive remarks about how these defects might be remedied.

Suggestive? Did Leiter in fact make any pornographic suggestions? Sadly no. He merely talked of mechanism design- which smart peeps want to do anyway- look at Taiwan's digital citizenship and participation forum now led by Minister Audrey Tang who uses 'quadratic voting' and other methods to get high quality deliberation. Apparently their 'hackathons' have helped Taiwan's excellent response to COVID. Obviously, free expression there still depends on the US Navy but the Taiwanese seem to be doing well in certain departments regarding which Leiter had already flagged concern with respect to Trumpian America in this paper. 

Both the Marxist Left and the Public Choice 'right', don't get that 'Freedom' has a mathematical representation in the underlying purely Economic Configuration Space. It isn't some shit to do with Truth and Beauty and Justice and Fairness and Not Saying Nasty Racist Stuff to very very stupid middle aged Tambram nutjobs  what shit on your pizza and didn't even go to Grad Skool. Freedom is valuable only coz Knightian Uncertainty exists. But valuable stuff has to be tested from time to time. There is a regret-minimizing solution which explains what otherwise appear as social and epistemic pathologies. Taking the sensible, i.e. socioproctological view, means not having to indulge in Manichaean virtue signalling or rehashing stupid academo-juristic shite. This is just Coasian-Hohfeldian Econ with Muth Rational Hannan Consistency doing the mathematical heavy-lifting. 

Socioproctology is about fingering assholes only in the sense that you identify them, call them an asshole, and then very quickly show that current knowledge forbids us bothering with the academic turds they expel so profusely. There is an a priori reason to steer clear of that shite. Granted, I'm not myself going to do any grunt work but that's coz I iz lazy and iggnirint. Anyway, I specialize in Poetry as Socioproctology. Who is to say my quatrains don't encode the relevant mathematical model in a univocal manner? You and everybody else who might read my verse. That's who. Sad.