Marx on Free Speech and Commerce

In the news these days is another case involving a Christian business that refuses to provide services for a same-sex wedding. The core issue in the case—303 Creative vs. Elenis—is summarized by SCOTUSblog as follows: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

The arguments on both sides are familiar. The business owner is accused of discriminating against gay couples. She replies that she does not discriminate on the basis of sexual orientation, but refuses to participate in anything to do with gay marriage, which she opposes for moral and religious reasons. The state of Colorado insists that the owner is engaged in “status discrimination,” because she would refuse to sell the identical product to a couple just because the couple is gay. She replies that this is not the case, because the products in question would not be identical. She refuses to make a website for anyone that violates her core beliefs, and there is no way to produce a wedding website for the gay couple without implicitly endorsing gay marriage.

The conflict here is framed as one between free speech and anti-discrimination. The website designer claims that requiring her to implicitly endorse gay marriage is an unconstitutional form of compelled speech. Colorado claims that this is not a free-speech matter, but an issue of illegally discriminating against gay people.

I find this framing unhelpful—it seems obvious to me that we have a religious liberty issue here, not a free speech issue. We are, after all, talking about a wedding. It is bizarre to think that the best way to reason through such a case is by pretending that bakers and web designers are persecuted artists. But I understand that the Court’s prevailing religious liberty jurisprudence doesn’t protect the website designer in this matter, so she needs to appeal to free speech.

Consequently, the debate turns on the question of whether a customized website counts as speech at all. I suppose this is a slightly better question than the version posed a few years ago—whether a custom-made cake counts as speech. But it still is a rather silly question. “Expressive” commercial activities are vaguely like speech, but not speech of the kind that we usually consider to be protected by the first amendment.

Reading the coverage of the case, I was reminded of a set of articles Marx wrote in 1842, when he was just 24. Marx comments on an legislative debate over the freedom of the press. Full of youthful, rhetorical exuberance, the articles are quite entertaining, and they offer some insight into the young Marx’s political philosophy—in particular they show how interested Marx was in economic matters long before his putative turn to materialism.

What reminded me of the articles was the connection between economic activity and free speech at issue in the court case. Colorado seems to say that because the website is a commercial product, it is not subject to the standard free speech protections. The designer replies that she cannot separate business activity and speech.

Marx’s primary purpose in these articles is to lambast Prussian conservatives. But he is almost as scathing in his treatment of the liberals, who defend press freedom as an extension of the freedom to conduct private business. As he summarizes at one point: “we cannot overcome the dreary and uneasy impression produced by an assembly of representatives of the Rhine Province who wavered only between the deliberate obduracy of privilege and the natural impotence of a half-hearted liberalism.”

The conservative case against press freedom rests on an assumption of man’s permanent intellectual immaturity. Because people are stupid, they will not know what to believe, and they will be led astray by what today we might term “fake news.” Marx replies—in classic Enlightenment form—that censorship will only guarantee the perpetuation of that stupidity:

in order to combat freedom of the press, the thesis of the permanent immaturity of the human race has to be defended. It is sheer tautology to assert that if absence of freedom is men's essence, freedom is contrary to his essence. Malicious sceptics could be daring enough not to take the speaker at his word. If the immaturity of the human race is the mystical ground for opposing freedom of the press, then the censorship at any rate is a highly reasonable means against the maturity of the human race.

What undergoes development is imperfect. Development ends only with death. Hence it would be truly consistent to kill man in order to free him from this state of imperfection. That at least is what the speaker concludes in order to kill freedom of the press. In his view, true education consists in keeping a person wrapped up in a cradle throughout his life, for as soon as he learns to walk, he learns also to fall, and only by falling does he learn to walk. But if we all remain in swaddling-clothes, who is to wrap us in them? If we all remain in the cradle, who is to rock us? If we are all prisoners, who is to be prison warder?

The conservative argument against press freedom rests on the claim that the “bad press”—which appeals to irresponsible and irrational passions—will always be more powerful than the “good press”—which deals in sobriety and rationality.

Marx replies that this distinction (1) implies the eternal weakness of the good vis-à-vis the bad—the “impotence of the good” and the “omnipotence of the bad;” and (2) fails to recognize that the same moral vices afflict the free and the censored press:

Base frames of mind, personal intrigues, infamies, occur alike in the censored and the free press. Therefore the generic difference between them is not that they produce individual products of this or that kind; flowers grow also in swamps. We are concerned here with the essence, the inner character, which distinguishes the censored from the free press.

The free press is essentially good, even when its products are vicious. The censored press is essentially bad, even when its products are virtuous: “A eunuch remains a bad human being even when he has a good voice. Nature remains good even when she produces monstrosities.”

Throughout Marx articulates an extreme faith in the transformative power of freedom, and he makes a straightforward market-place of ideas argument:

Censorship does not abolish the struggle, it makes it one-sided, it converts an open struggle into a hidden one, it converts a struggle over principles into a struggle of principle without power against power without principle. The true censorship, based on the very essence of freedom of the press, is criticism. This is the tribunal which freedom of the press gives rise to of itself. Censorship is criticism as a monopoly of the government. But does not criticism lose its rational character if it is not open but secret, if it is not theoretical but practical, if it is not above parties but itself a party, if it operates not with the sharp knife of reason but with the blunt scissors of arbitrariness, if it only exersises criticism but will not submit to it, if it disavows itself during its realisation, and, finally, if it is so uncritical as to mistake an individual person for universal wisdom, peremptory orders for rational statements, ink spots for patches of sunlight, the crooked deletions of the censor for mathematical constructions, and crude force for decisive arguments?

For what it’s worth, I’m not particularly impressed by such arguments. As I’ve mentioned before, I think the opening of the Protagoras provides a decisive counter argument. (Though I do think Mill offers some stronger arguments for free speech).

In a striking aside, Marx insists on the necessity of law in constituting human freedom. It is a mistake to think of press freedom as the absence of legislation. It is, on the contrary, a positive expression of freedom. The perfectionism on display here strikes me as very different from standard American defenses of free speech:

Laws are in no way repressive measures against freedom, any more than the law of gravity is a repressive measure against motion, because while, as the law of gravitation, it governs the eternal motions of the celestial bodies, as the law of falling it kills me if I violate it and want to dance in the air. Laws are rather the positive, clear, universal norms in which freedom has acquired an impersonal, theoretical existence independent of the arbitrariness of the individual. A statute-book is a people's bible of freedom.

More interesting than the treatment of the defenders of censorship is Marx’s criticism of the liberal arguments in favor of free speech:

The mover of the motion desires that freedom of the press should not be excluded from the general freedom to carry on a trade, a state of things that still prevails, and by which the inner contradiction appears as a classical example of inconsistency.

There is something obscene about this argument, though it makes sense coming from a representative of the bourgeoisie. Such liberals are only able to understand freedom by way of analogy to their drab, commercial lives. Defending free speech as a form of the freedom of trade is a bit like Rembrandt depicting the Madonna as a Dutch peasant woman.

Such an account of free speech can never succeed:

To make freedom of the press a variety of freedom of trade is a defence that kills it before defending it, for do I not abolish the freedom of a particular character if I demand that it should be free in the manner of a different character? … is the press true to its character, does it act in accordance with the nobility of its nature, is the press free which degrades itself to the level of a trade?

The freedom of speech has nothing at all to do with the freedom to conduct a trade. Indeed, the freedom of self-expression is close to the exact opposite of the degrading, instrumentalization characteristic of commercial activity:

The writer does not at all look on his work as a means. It is an end in itself; it is so little a means for him himself and for others that, if need be, he sacrifices his existence to its existence. …The primary freedom of the press lies in not being a trade. The writer who degrades the press into being a material means deserves as punishment for this internal unfreedom the external unfreedom of censorship, or rather his very existence is his punishment.

What’s more, theorizing press freedom as a species of trade freedom allows for a noxious implication: The authorization of certain writers but not others. An official press (whose freedom is protected) and an unofficial press (whose freedom is denied). I gather this remains an issue in American jurisprudence—does something distinguish press freedom from free speech in general?

Marx offers here a purplish reply, rejecting any attempt to distinguish between the official and unofficial press:

The press is the most general way by which individuals can communicate their intellectual being. It knows no respect for persons, but only respect for intelligence. Do you want ability for intellectual communication to be determined officially by special external signs? What I cannot be for others, I am not and cannot be for myself. If I am not allowed to be a spiritual force for others, then I have no right to be a spiritual force for myself; and do you want to give certain individuals the privilege of being spiritual forces? Just as everyone learns to read and write, so everyone must have the right to read and write.

By framing the issue as one of trade, the liberals have allowed free speech to become a matter of “soulless bargaining and haggling,” not unlike debates over what kinds of business activities to regulate. The American legal debate over the imaginary line between purely commercial and properly expressive business activities strikes me as roughly comparable. 

Marx concludes by favorably quoting a speech from a member of the peasant estate:

If any nation is suitable for freedom of the press it is surely the calm, good-natured German nation, which stands more in need of being roused from its torpor than of the strait jacket of censorship. For it not to be allowed freely to communicate its thoughts and feelings to its fellow men very much resembles the North American system of solitary confinement for criminals, which when rigidly enforced often leads to madness. From one who is not permitted to find fault, praise also is valueless; in absence of expression it is like a Chinese picture in which shade is lacking. Let us not find ourselves put in the same company as this enervated nation!