"Instead, content and identity-neutral rules must be in place before any controversy strikes, and ideally the administrators judging complaints should be as free as possible from any overt biases."
Those rules are highly desirable. The good administrators are essential.
This is a valuable account, but the analysis is premised on a highly contestable proposition. It takes for granted that "free speech" is a stand-alone principle, rather than one embedded in a cluster of inter-related principles (e.g., human dignity, equality). In historical and comparative perspective, the latter view is the norm, and the former -- the identification of free speech with viewpoint neutrality -- the exception. International human rights law expressly rejects viewpoint neutrality, as do many liberal-democratic constitutional orders (including Canada). U.S. constitutional doctrine's embrace of viewpoint neutrality dates, not from the founding, but more or less from a 1969 Supreme Court decision (Brandenburg v. Ohio), which subsequently became identified with the maxim that "constitutionally speaking, there is no such thing as a false idea." Viewpoint neutrality has much to be said in its favor, but to characterize rejection of that doctrine as unprincipled, as this post appears to do, is misconceived and unfair.
If all speech is not governed equally, neutral to its content, then in what sense could it still be considered “free”? What is free about it?
If your view is that other principles such as human dignity are more important to you and ought outweigh free speech when they are perceived to be in conflict, then so be it. But to make that choice is by definition to oppose free speech.
We could debate this question at great length, and as I indicated, there are important points to be made in favor of (as well as against) the doctrine. But you should acknowledge that this represents a genuine jurisprudential debate as to the meaning of "free speech"; indeed, while yours remains the majority view in the US legal community presently, it is far from a universal view, being rejected within legal systems and among legal theorists that fall firmly within the liberal tradition. (And indeed, US constitutional law has historically been otherwise (albeit, perhaps, for the worse); see Beauharnais v. Illinois (1952), upholding a "group libel" -- essentially, hate speech -- prohibition.) See, for example, The Harm in Hate Speech (Harvard Univ. Press, 2014), by Jeremy Waldron, one of the leading philosophers of rights in the English-speaking world. You may think Waldron (among a great many others) to be wrong, but you can scarcely cast him as someone who lacks an understanding or appreciation of "free speech."
I liked your post but I believe you may have it backwards: We need to live by foundational principles that cannot be violated by our man-made institutions.
Madison was an idealist. Like many of the founders he believed that men could be “disinterested” or act like “dispassionate umpires”. Madison and the founders were wrong about the passions of men—we are all judges in our own cases because we are all self-interested.
This isn’t a problem (or flaw) with men; it is a feature that is part of our nature, which is how we survive and flourish. But it does need to be regulated (but not by the government) by principles.
Principles are the refutation to all those who believe that without “God” men would make up their own rules for what is right and wrong. This is not how the United States of America was founded (this is not how men have built a civilization). It was built on the bedrock of inviolable principles.
Sadly, we need to keep reminding ourselves that we must live faithfully by our principles or else face tragic consequences.
Americans have indeed violated our foundational principles.
“The founders envisioned a republican form of government, but as Benjamin Franklin warned, “When the people find they can vote themselves money, that will herald the end of the republic.””—Walter Williams
"Instead, content and identity-neutral rules must be in place before any controversy strikes, and ideally the administrators judging complaints should be as free as possible from any overt biases."
Those rules are highly desirable. The good administrators are essential.
This is a valuable account, but the analysis is premised on a highly contestable proposition. It takes for granted that "free speech" is a stand-alone principle, rather than one embedded in a cluster of inter-related principles (e.g., human dignity, equality). In historical and comparative perspective, the latter view is the norm, and the former -- the identification of free speech with viewpoint neutrality -- the exception. International human rights law expressly rejects viewpoint neutrality, as do many liberal-democratic constitutional orders (including Canada). U.S. constitutional doctrine's embrace of viewpoint neutrality dates, not from the founding, but more or less from a 1969 Supreme Court decision (Brandenburg v. Ohio), which subsequently became identified with the maxim that "constitutionally speaking, there is no such thing as a false idea." Viewpoint neutrality has much to be said in its favor, but to characterize rejection of that doctrine as unprincipled, as this post appears to do, is misconceived and unfair.
If all speech is not governed equally, neutral to its content, then in what sense could it still be considered “free”? What is free about it?
If your view is that other principles such as human dignity are more important to you and ought outweigh free speech when they are perceived to be in conflict, then so be it. But to make that choice is by definition to oppose free speech.
We could debate this question at great length, and as I indicated, there are important points to be made in favor of (as well as against) the doctrine. But you should acknowledge that this represents a genuine jurisprudential debate as to the meaning of "free speech"; indeed, while yours remains the majority view in the US legal community presently, it is far from a universal view, being rejected within legal systems and among legal theorists that fall firmly within the liberal tradition. (And indeed, US constitutional law has historically been otherwise (albeit, perhaps, for the worse); see Beauharnais v. Illinois (1952), upholding a "group libel" -- essentially, hate speech -- prohibition.) See, for example, The Harm in Hate Speech (Harvard Univ. Press, 2014), by Jeremy Waldron, one of the leading philosophers of rights in the English-speaking world. You may think Waldron (among a great many others) to be wrong, but you can scarcely cast him as someone who lacks an understanding or appreciation of "free speech."
I liked your post but I believe you may have it backwards: We need to live by foundational principles that cannot be violated by our man-made institutions.
Madison was an idealist. Like many of the founders he believed that men could be “disinterested” or act like “dispassionate umpires”. Madison and the founders were wrong about the passions of men—we are all judges in our own cases because we are all self-interested.
This isn’t a problem (or flaw) with men; it is a feature that is part of our nature, which is how we survive and flourish. But it does need to be regulated (but not by the government) by principles.
Principles are the refutation to all those who believe that without “God” men would make up their own rules for what is right and wrong. This is not how the United States of America was founded (this is not how men have built a civilization). It was built on the bedrock of inviolable principles.
Sadly, we need to keep reminding ourselves that we must live faithfully by our principles or else face tragic consequences.
Maybe you need to find some better people
No principles are inviolable. It always comes down to people to enforce them or violate them.
Americans have indeed violated our foundational principles.
“The founders envisioned a republican form of government, but as Benjamin Franklin warned, “When the people find they can vote themselves money, that will herald the end of the republic.””—Walter Williams
Everyone violates principles.