I have come to believe that the Founding Fathers blew it when they wrote The First Amendment. They shouldn't have spoken of “free speech” but instead should have spoken of unfettered access to information—that is, “the freedom to hear.” The two are similar rights, but the right to hear is the more important one.

As I see it, the right to stand on a soap box in the park is not a right to stop others who might pass by and hold them hostage, forcing them to listen to one's message. It is not a right of coercion. Rather, the power of the right is the opportunity to place oneself passively in a place where others, if they so choose, might elect to listen.

Democratic Need: The Fuel of Change

It's critically important in a democracy that the majority is able to hear about things that are not popular with that majority. That is how open-minded people change their minds. They take in information about less-popular ideas and consider whether to change their mind and admit new ideas.

In a well-functioning democracy, the status quo will represent the majority viewpoint. As a result, any possible change will occur due to a minority viewpoint taking hold. For that to happen, it's critical that the populace have access to unpopular views. On the other hand, forcing them to receive unpopular views would be tyranny by some minority. So the process must be voluntary, and must involve a conscious decision by enlightened members of the populace to hear what might change their mind.

Tie-Breaking the Golden Rule: Spam and Telemarketing

In some ways, one might think the matter symmetric and the choice of how to express it merely a variation of wording. Communication involves a speaker and a listener, so to say conversation is about speech is to say it's about listening. What's the big deal?

Well, for one thing, if the speaker and listener are not in agreement, there becomes the question of who should win. Those of us who believe that the Golden Rule is the dominant meta-rule that drives all politics find ourselves in an uncomfortable position when one person wants to, even has an articulated right to, speak while another has no desire to listen, and has no corresponding articulated right to assert. Something feels unbalanced about that. Tour right to speak pushes out at me and I need a corresponding force I can balance with. Saying my only right is to speak back, and not merely to assert a right of silence, seems unfairly coercive to me. At minimum there must be a balance of power between speaker and listener.

And yet even then, ties will still occur. In matters of telemarketing and spam, the answer seems clear to me, even before the imposition of rights and laws, just on the basis of common sense. In fact, I was first alerted to this issue at all by receiving email spam that contained a patriotic-sounding passage about free speech which seemed to have the purpose of saying “I have the right to send this and you don't have the right to complain about that.” I don't think that's so. I think the rights of the listener must dominate over the rights of the speaker. In the case of a conflict, the term “free speech” appears to give dominant power to the speaker, while an alternate phrase like “freedom to hear” shifts control to the listener.

Publishing and Censorship

There is also the matter of speaking generally, passively, to no particular person—the matter of publishing, if you will. Publishing speaks out, but with no identified listener.

But publishing does not intrude. Published material can sit patiently and wait, in a library or repository. This process is voluntary, and while it might seem an act of “pushing” information out, that's mistaking advertising for inventory. Inventory is the passive receipt of information to a waystation, awaiting a consumer who will tune in.

Publishing is curious, too, because it actually speaks not only to everyone now existing but to people who might not yet be born. It would be unrealistically difficult to poll everyone who now exists, but when you add those who might exist in the future, it's a definite impossibility. No one can know who might be interested and who might not. And yet publishing speaks to all such people.

And so when it comes to the possibility of censorship we find someone intervening in the wending, passive, voluntary path from speaker to would-be end-listener. But whose rights are denied? The speaker's? I would allege not. The speaker has spoken and even if the speaker's words might reach the intended audience, I've argued he has no right to impose them. It's the listener who has the ultimate right to receive the information. If the chain is broken, it is the listener who is infringed.

In fact, in the impossible situation that it could be shown in advance that there could not possibly be any person interested to hear, one might theoretically argue it was not only rightful but merciful to ask that the speaker desist. But given that no such argument could reasonably be constructed, because there is no science capable of predicting what future people will or won't want to hear, organized censorship has no place because it denies the ultimate rights of listeners, not the rights of speakers.

The Complexities of Public Speech

Recently in the news is the question of whether Obama should be permitted to speak at Notre Dame, given his position on abortion. Under my formulation, I claim it should be clear that this is the wrong question. The right question is not Obama's right to speak, it's whether there is any person at Notre Dame who wants to hear what he has to say, because it is the need of those who might be open to his message that is at issue.

Of course, Public Speech poses a particular difficulty if you assume that any possible reader should have a right to deny speech. Here there are two ways to break things down. One is to say that this argues that Free Speech is the core right and that in order to argue Obama's right to speak I have to go back to that. But I'm not trying to argue based on an ideology. I don't begin with the notion that he must have a right to speak and then bend all law to suit my Machiavellian end goal. Rather, I begin with the simple question: How will that one person in the audience who would hear Obama get the information if Obama is not allowed to speak?

Certainly, if Obama is invited he must be allowed to speak because that's in the nature of the contract. Let someone who doesn't want him to speak not invite him. So this beef by certain would-be audience-members and onlookers is not with Obama, it's with the conference organizers.

And, further, it seems clear that if someone trying to enlighten themselves at a university wants the information, they should have access to it. This goes back to the censorship issue. It seems clear that it serves the rights of the audience to permit controversial speakers. Such speakers' goals may be served by speaking, but in my view they ought enjoy no right to speak if there are no listeners who would hear.

What makes the issue of Obama a problem is not that he might attend and speak but that an audience who wants to be there for other reasons is put in an awkward position. Their choice becomes to attend an event where they would not voluntarily listen, or not to attend. But to not attend means missing an event that is significant for other reasons. This bundling of two unrelated events is the real cause of the difficulty. A structuring of the event to allow those who would do so to attend the main body of the event and then to leave, perhaps in protest, would probably have resolved this. So much the better if their leaving provided seats for others who would like to hear the lecture because I suspect there were not seats enough for all who had wanted to attend and that if those who don't want to hear the lecture were to leave, the gathering place would quickly refill with people who did want to hear.

Avoiding the “Least Common Denominator”

The problem of public speech is also tricky for another reason. There is a temptation by some to manipulate the system in order to say that all public discourse must be a kind of “least common denominator”—permitting only the most conservative of speech, that speech which is acceptable to all. Or, at least, that speech alleged to be acceptable to all. Who even knows if there is any such speech.

The freedom to hear must not be confused with a right of the individual to control what others may say in a public venue by asserting their right against others' rights to publish. The recourse in that case must be a right of individuals to opt out of situations that will thrust arbitrary messages at them in unwanted fashion. I have some sympathy for someone not wanting to see offensive billboards in a public square, for example, since opting out of using certain public areas may be difficult. But the notion that a speech or an internet page must not exist because there is someone somewhere not interested in it misses the entire point of what it is for information to be passively conveyed.

As long as there is a simple, cost-free, rational way to opt out, that should be the final recourse of the party who wants to use their freedom to hear as a mechanism for stopping speech they do not like. Causing the speaker not to speak means potentially infringing another's right to hear. Better to just avoid the venue where the unwanted speech is ocurring.

Just Plain Noise

It should go without saying, but I'll say it anyway: At the point where you're playing your music too loud or blocking my path to a building or any of a variety of other so-called speech acts, you're not exercising what I see as free speech, since you're not entertaining my need to hear, you're just a force trying to invade my space. Making your message available to me is fine, but making it impossible for me to ignore your message is not fine, and certainly ought not be your right.

Sometimes in a society when there are injustices, one takes actions to get attention that are beyond the scope of their rights; but civil disobedience is not a right, it is a calculated sacrifice.

Information from Foul Sources

A particular case of interest is the question of whether murderers should be allowed to write books. Some would say these people have lost their rights and must not be allowed to speak. Perhaps. But I claim that the interesting question is whether the would-be readers of such things have lost their right to hear from a murderer. Do law enforcement officials, psychologists, and even just ordinary citizens sitting at home have no right to know what makes a murderer tick? I think not.

If necessary, cut off the convicted felon's right to the money or even to media notice or fan mail or other benefits of he publication. But if the murderer will offer useful information to those whose enjoy full rights in our society, I see no reason to keep a murderer from writing. The real victim will be a free society who will not be able to prepare for the next such murder.

In September 1997, Salon's Table Talk forum hosted an interesting extended discussion on one of its threads about the question of whether the reader of literary works should make a decision about what to read or not based on the moral character of the author. I was proud to participate. (If you're a fan of author Sherman Alexie, you'll find him there as well.) The discussion is long, but I highly recommend it for those who are interested in this topic and can spare the time. It was entitled “She boiled squirrel nutkin, he diddled girls -- does it spoil the message?”

Summary

There are two parties involved in a communication. If both are willing, the communication should proceed. But when there's a dispute, who wins? Using terms like “free speech” appears to give the favor to the speaker, which I think is wrong. I prefer the term “freedom to hear” because it gives final say back to the person who would be receiving the information. In my view, the right to free speech ought not be a right to impose one's message on another, only about making messages passively available to others who would hear them.

Free speech is a way of guaranteeing that we in a democracy and in a free society have access to a free flow of ideas. It isn't supposed to be a way of forcing us to endure a free flow of noise or indoctrination. That's not freedom, it's slavery.

I'm not suggesting a Constitutional amendment, although if I were doing the Constitution over, I would ask for a balancing “freedom to hear.” However, even within our present society, with the Constitution as it presently is, I often find that reformulating problems of free speech as problems involving a freedom to hear yields important insights in how to think about those problems in fresh and empowering ways.

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Historical Note
This article is based on an earlier article that I wrote in 2001.