The Market Tells You How Much Speech You Should Have – Opting Out

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Electronic Frontier Foundation

The Constitution of the United States says you have the right to the pursuit of happiness. It doesn’t say you have a right to happiness. It doesn’t say that happiness is to be granted by the benevolent teat of the state. It’s phrased almost as if happiness is but one example of what one might want to pursue in a free society. You could just as well, according to Jefferson and company, if you darned well pleased, pursue dread and melancholia.

This concept isn’t all that controversial to constitutionalists. They understand that the rights nominally protected by the Constitution are negative in the sense that the only obligations on others are not to do something. Our property rights are only calls for others to not steal from us and trespass against us. Positive rights are calls for others to do something for us or give something to us, and are inherently contradictory. We get it.

Then how come those same people who “get it” make such dumb arguments when it comes to other rights issues? Specifically, I’m talking about the right to freedom of speech, and the right to make a profit.

Conservatives, mad that they’re being shunned from Twitter, are invoking the First Amendment and freedom of speech to argue that the state should come in and force social media platforms to host their views.

The right of freedom of speech doesn’t grant you speech. It doesn’t ensure that you have a platform anytime, anywhere, for whatever you might want to say. It gives you the right to seek a platform. It means that the government cannot come in and say that you can’t speak. After that, good luck to you. It doesn’t ensure that everyone else must put up with you, and must go out of their way to accommodate you.

The “give me speech” conception of rights is fundamentally unenforceable without some kind of conflict because it is a call upon other people to do something with themselves and their property that they do not want to do, or a prohibition of the free use of their person and property. It therefore goes from a right to an imposition on others.

So too, you don’t have the right to a profit. You understand this if you’re not thoroughly confused about modern understandings of intellectual property. People think it’s outrageous that someone else could feasibly make more money than you using the same idea as you.

You have the right to seek a profit. Profit is but one phenomenon in the market. It is one possible outcome of entering into market activity. It is not a given nor a guarantee. In fact, it is an anomaly. It’s mostly temporary until more actors have entered and the market clears.

Profit is what happens when you more successfully anticipate future demand than others, and put your stake in it. You have by whatever means better understood what the market needs and provided the product or service that meets that need. Profit is both the reward for your superior foresight, and a signal to others that there is unmet demand, to which they will flock to fulfil.

In contexts without the issue of intellectual property, nobody seems to question these ideas. It’s just taken as a given that these are the rules market actors play by, and they have to accept their consequences. Nobody can reasonably make the case that after making a profit, that profit must be protected by force of law.

Besides, such monopoly rights don’t even do what they’re intended to do, to “protect the profits of innovators.” These producers still have to produce products that people will actually buy. What then, if by poor delivery or marketing, there are no customers – is everyone that didn’t buy the product to be prosecuted? They did after all prevent the producer from making a profit, therefore violating his “rights”, no?

The purpose of rights is to set the rules of the game. They are not to ensure that you win the game. It’s the difference between asking for the right to marry someone of the same gender, and insisting that the government provide you with an attractive partner. It’s the difference between demanding the right to legal means of acquiring cannabis for medical purposes, and demanding regular deliveries of high-quality potent strains at somebody else’s expense. It’s negative versus positive.

As far as freedom of speech is concerned, it’s the market that decides how your speech is proliferated, not the state. The market is driven by consumer demand. If you’re being silenced on a private company’s platform, it’s some indication that the content you’re producing is not to the consumers’ liking. Like it or not, this is the game you’re playing.

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James Smith

Writer and film-maker from the United Kingdom. Digital nomad. Author of 'The Shy Guy's Guide to Travelling'.