Bryan Caplan  

The First Amendment and the Principles of Public Opinion

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Just a Reminder... Why Are Interest Rates Low?...
Three principles of public opinion I've pushed over the years:

1. The status quo is popular.  Well-worded questions usually show that the median person favors the status quo, exactly as the Median Voter Model predicts.

2. Liberty is more popular at an abstract level than it is for specific policies.

3. If anything, policy is more libertarian than the public wants.

When I was preparing my FEE lecture on "Public Opinion for Libertarians," I had a chance to test these three principles on public opinion about the First Amendment.  Do generalizations based mainly on public opinion about economics extend to civil liberties?  It's a nice "out of sample" robustness check.

The best source I could find was the First Amendment Center's State of the First Amendment Survey.  Let's take a look at the 2007 edition.  What do we see?  (All responses are for 2007 unless stated otherwise).

1. Two questions are ideal for testing my claim that the status quo is popular.  Question 10 asks:
Overall, do you think the press in America has too much freedom to do what it wants, too little freedom to do what it wants, or is the amount of freedom the press has about right?
Question 11, similarly, asks:
Even though the U.S. Constitution guarantees freedom of religion, government has placed some restrictions on it. Overall, do you think Americans have too much religious freedom, too little religious freedom, or is the amount of religious freedom about right?
The results: The median respondent says "about right" to both questions in every year covered - 1997-2007.  Support for free speech bottomed out in 2003, the one year where "too much freedom" was a more popular answer (46%) than "about right" (43%).  But support for the status quo remained the median.

2. At the most abstract level, there is overwhelming support for civil liberty.  In 2007, 98% considered "the right to speak freely about whatever you want" to be "essential" or "important," and 97% thought the same about "the right to practice the religion of your choice."  Even "the right to no religion" was deemed "essential" or "important" by 89%.

Still, the public sounds much less libertarian when asked about more specific issues.  Only 60% agree that "Newspapers should be allowed to freely criticize the U.S military about its strategy and performance" and that "People should be allowed to say things in public that might be offensive to religious groups."  Only 56% agree that freedom of religion, "Applies to all religious groups regardless of how extreme their beliefs are."  Just 55% agree that, "Musicians should be allowed to sing songs with lyrics that others might find offensive." 

3. While the median respondent broadly endorses the status quo, there are a few discrepancies between what we've got and what we want.  As far as I can tell, all discrepancies are in the direction of freedom.  Fully 56% disagree with the view that, "People should be allowed to say things in public that might be offensive to racial groups."  Yet neo-Nazis still have free speech.  More amazingly, 61% agree that "The government should be allowed to require newspapers to offer an equal allotment of time to conservative and liberal commentators."  Last but not least, 71% agree that "The government should be able to place restrictions on the amount of money a private corporation or a union can contribute to an election campaign."  The Citizens United decision is clearly more freedom of speech than the public would allow.

Overall, my three principles of public opinion work as well for civil liberty as they do for economic liberty.  Once again, libertarians should count ourselves lucky.  If the government truly started listening to the people, that would be a sad day for freedom.


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COMMENTS (8 to date)
John Thacker writes:
"The government should be able to place restrictions on the amount of money a private corporation or a union can contribute to an election campaign." The Citizens United decision is clearly more freedom of speech than the public would allow.

I agree with your statement, but the quoted polling question isn't really what the Citizens United decision was about. Perhaps I'm reading it wrong, but the polling question sounds like it's talking about contributing to a politician's campaign, which a lot of people wrongly think that Citizens United is about. It instead was about independent speech.

It's just a pet peeve of mind that people misstate what the ruling covered.

Doc Merlin writes:

Yay for the judiciary and the constitution!

lukas writes:

So how do you explain that hyper-democratic Switzerland is, in general, much more libertarian than the surrounding European countries?

Colin Fraizer writes:

One of your "ideal" questions about "the press" is far from ideal. It ignores the fact that modern "progressives" view the 1Am as providing protection for something they seem to define as "the media establishment", whereas I believe the 1Am to protect _everyone's_ right to publish/print/disseminate whatever information they want.

I don't believe in freedom of The Press (as defined by professional journalists) in the sense of special rights or privileges for journalists. I do believe in freedom of the press (which would include those professional journalists equally with every other citizen).

Æternitatis writes:

Colin is right. This is not a very good question:

[T]he press in America has too much freedom to do what it wants, too little freedom to do what it wants, or is the amount of freedom the press has about right?

Thanks to the surprisingly sound judicial consensus, genuine violations of the freedom of expression are fortunately rare and growing rarer. This is one area in which the U.S., again thanks to judicial supremacy, is substantially superior to every other jurisdiction on earth I have any familiarity with.

However, the question focuses on "the press"--that is, a specific, limited group of actors--and its ability to "do whatever it wants"--without limitation on the type of activity. Hence, it can fairly be interpreted as asking about various efforts to create and enhance the privileges of a particular caste to violate generally applicable laws.

Current examples include the demands that "genuine journalists" be exempted from the general requirement to testify in legal proceedings and be permitted to trespass, commit fraud, and break contracts with impunity. None of these privileges are required either by the general principle of freedom of speech or the First Amendment. Even in cases where the generally applicable law itself is odious--such as much campaign finance law--specific privileges for a caste--such as the McCain-Feingold media exemption--are arguably wrong.

So, while I'm as much an absolutist regarding freedom of speech and its constitutional protection as Bryan, I might very well have answered "too much" to that question.

Micke writes:

I can't see how "the right to practice the religion of your choice" could be considered a freedom worth protecting, any more than "the right to arbitrarily murder random people" is a right we protect.

After all, more than a few religions do require the death penalty for a variety of actions where the judicial system has other penalties or no penalties at all.

Not all religions consider individual freedom to be positive or even acceptable. You can't have both complete religious freedom and complete individual freedom, for the very same reason that you can't have the right to kill people and the right not be killed simultaneously.

This is obvious to everyone in all cases, except when religion is involved. Then the thinking gets muddled in the name of "respect". (FWIW, Charles Manson considered his ideas a "religion". Should we show respect towards that as well?)

David C writes:

Micke, I'd go with the Supreme Court's interpretation of religious freedom in interpreting that question. Laws do not interfere with religious freedom if they have a "compelling interest" or a particular goal unrelated to any religion and cannot be demonstrated to be targeted towards a particular religion.
http://en.wikipedia.org/wiki/Free_Exercise_Clause_of_the_First_Amendment

As for the reason for the libertarian position of laws relative to the average American, I'd guess the people who vote are more libertarian than the people who don't.

Mr Econotarian writes:

Don't forget that marijuana is de facto legalized in western cities of the US. And you an still buy a gun in most of those places as well (most guns, after a background check).

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