An interesting thought piece by Greg Lukianoff on the arguments raging in American about the 1st Amendment and social media, especially as AI tools become more prominent in the space. This has led to demands for algorithmic discrimination laws and such.

Lukianoff points out the relatively recent history of the “suicide pact” phrase, showing that it was first used by a Supreme Court judge in a 1949 case, Terminiello v. City of Chicago, where a suspended Catholic priest gave a speech that sparked unrest. The Court held that – especially since the priest himself had not been violent and had not called for violence, but the mob listening to him – he was free to speak as he had. Justice Robert Jackson’s dissented:

If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

But the exact phrasing would have to wait until 1963 when another Supreme Court justice discussed the concept, this time as he concurred in a majority opinion ruling that draft dodgers could not be stripped of their citizenship (Kennedy v. Mendoza-Martinez):

The powers of Congress to require military service for the common defense are broad and far-reaching, for, while the Constitution protects against invasions of individual rights, it is not a suicide pact.

By which he did not mean that all that freedoms should be dumped when things get bad, but that there are limits on freedoms and the government has to prove three key legal things (strict scrutiny) to set their desired restriction on the freedom of people:

  • It must compelling government interest,
  • It must be narrowly tailored,
  • It must be the least restrictive means available,

I laughed at his reference to Battlestar Galactica as an example of where fundamental rights are absolutely going to be infringed because there’s only 50,000 humans left and killer robots are trying to exterminate them.

But as he argues, America is a long way short of that. In fact it doesn’t even rise to Civil War levels where President Lincoln suspended habeas corpus. Using hypothetical possibilities does not cut the “strict scrutiny” mustard:

But that’s an if-then scenario, not a right now one. We don’t get to infringe upon civil liberties right now because someone merely invokes existential angst and the possibility of crisis, as though it’s a magic spell…. we preserved the open exchange of ideas despite the difficulty these technologies created for us, because we have always known that knowledge creation — perhaps the most important human endeavor there is — depends on it.
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[algorithmic discrimination laws]… are incredibly blunt tools — and they don’t just regulate speech, they also inevitably dictate what can be known, believed, or even studied. That’s not safety. That’s intellectual tyranny. And history tells us that tyrants and utopians alike have always lusted after that kind of control. We cannot give it to them.

Unfortunately we already did so during the great Chinese Lung Rot Pandemic. But perhaps in time we’ll come to regard that as an unfortunate but ultimately good lesson for when we face a worse crisis and know that we have to ask harder questions before we screw with people’s freedoms.