Interface between Freedom of Expression and Welfare

 
The following paper came out of a conference I delivered together with  MIT Professor Daron Acemoğlu on Dec. 18, 2014 at a conference titled “A Relationship of Rights and Economics: the Total Welfare Consequences of Freedom.*” The quality of the floor discussion following our speeches impressed and encouraged us. Later, I published a paper on my arguments and analyses shared with the audience during the said conference. Many readers have also encouraged me to issue an English version of that paper. Below; I present the main hypotheses I emphasized at the conference in sub-headings, in more detail than I did at the conference. I would like to emphasize once again that the position, the perspectives, hypotheses and theories I present here are made under my academic title, and are not related to any of my clients in any way.
 
The first step in expanding liberties must begin at the freedom of expression
 
The freedom of expression constitutes the basis of all other rights. This is because in order for a right to really exist, society should be able to request and claim it. The efficiency and effectiveness of such a claim depends on how wide the scope of freedom of expression is. In other words, there is no way of protecting individual rights in a society that cannot demand a particular right, or the restoration of a particular right that has been taken away or a one that cannot express its demands concerning rights without having to face repressive measures.
 
While it is debatable whether there can be a correct timing for introducing a wider scope of freedom of expression , the situation of other rights is irrelevant to the social welfare creation effect of freedom of expression. For instance, most economists would agree that the following statement is a first quintessential proposition: Even if the text of the legislation is inadequate, the existence of an independent judiciary that properly implements this legislation is a prerequisite for economic growth. Anyone who easily accepts this statement should be able to see that freedom of expression is the first step towards social welfare anytime and under any circumstances. As articulated above, freedom of speech is the warranty of being able to claim a right in daily life, even prior to the courts. Whatever the situation and needs with respect to other rights, freedom of expression must be the first step in forming a legal policy shaped with the purpose of welfare.
 
We can reach the same conclusion through a different perspective: A right can remain idle if it is “granted” by others rather than claimed and struggled for. A non-functioning right is actually non-existent. If a right was “granted” at a time when no one was demanding it, it cannot remain its existence. If a right is not exercised, demanded, or indeed taken seriously, it perishes. As Sigmund Freud aptly remarked, “Most people do not really want freedom, because freedom involves responsibility, and most people are frightened of responsibility."
 
Freedoms and rights that are not claimed will die in this abandonment. We, as the people of Turkey, know this very well. A natural extension of this is that when a right is not demandable, that right does not exist. The only exception to this is the core notion of freedom of expression, which protects this demandability itself. This core freedom retains its function even if it was given without anyone demanding it, or even if it is not widely exercised by the masses, to the extent it provides immediate protection and encouragement for opinion leaders who voice unusual ideas, those who advocate unpopular or uncomfortable issues, or indeed for minorities who are exasperated by the violation of their rights. It does not have to be embraced by the masses. Freedom of speech which protects our right to say ‘this should be the minimum border of my right”,  thus also protects the corner stone of first step towards enlargement of rights, through identifying and protecting the core of the minimum level of fundamental rights in that society. In regimes where the very core of freedom of expression can collapse because it deteriorated, one can observe retrospective social explosion points rather than conscious legal policy choices aimed at social welfare. This is not a point where the law contributes to the economy, but a point where the law is detached from reality, the economy and the people, and thus loses its function. Such a situation cannot guide us with regard to the right and main preferences towards sound legal policy steps. Thus, freedom of expression is a prerequisite for any legal regime that is worthy of a discussion on legal policy, and where there is a meaningful link between the law and the economy.
 
Accordingly, the first mandatory step in broadening the scope of rights for the purpose of maximizing social welfare is to maintain and improve freedom of expression with a conscious choice of legal policy.
 
Freedom of expression cultivates innovation; the cornerstone of sustainable economic growth
 
Freedom of expression is again the basic legal instrument for promoting innovative thought, the corner stone of innovation, which is the main element of sustainable economic development. If we regard economic dynamics holistically and avoid a narrow positivist economic viewpoint, we should be able to observe the interaction between free market economies and the market for ideas. As the market for ideas becomes freer, the universe of ideas, which includes innovative ideas, will expand and strengthen as well. It will expand because the maximization-oriented approach of the free market also applies to the market for ideas. It will strengthen because little else cultivates innovative thinking better than the effort of an idea to be accepted as the “truth” in the competitive environment of a free market of ideas. Furthermore even a competitive market for ideas can possibly dysfunction, especially with regard to innovative ideas, if the participants have unequal access to information regarding the relative qualities of ideas, or if the ideas have negative externalities. It is again the freedom of expression that can solve these problems and regulate the situation through a free market. This is because freedom of expression is the only way of maximizing “truth” in situations where there is conceptual confusion and confusion as to the quality of ideas. The problem has become much more difficult today, a time characterized by veiled appearances and slippery grounds. Walls are no longer physical at the 25th anniversary of the fall of the Berlin Wall. Racists no longer wear hoods. The fanatic and the liberal merge. The victim has no enemy. This is why we must lift the veils and let ideas compete in the free market, avoiding labels. It is freedom of expression that will render this. Innovative thinking can only flourish away from that chaos.
 
 
 
Freedom of expression functions even if the present quality of ideas is not high in a society
 
In order for freedom of expression to lead a society towards innovative thinking, it is not especially important whether that society possesses a highly-developed intellectual environment at that point in time. But the existing intellectual environment can prevent the efficient use of the simple tools of representative democracy if these are not supported by freedom of expression. Thus, the welfare impact of the tools of representative democracy will be open to discussion in a dilapidated society that lacks freedom of expression. According to Sir Winston Churchill, "the best argument against democracy is a five-minute conversation with the average voter.” However, I believe that the real potential of democracy will nonetheless begin to emerge in time, if those conversations are repeated sufficiently, if they can take place, that is, only if freedom of expression exists. The current level of thinking is not an obstacle to the efficiencies derived from freedom of expression. This is important because freedom of expression, regardless of the time it is granted, enables intellectual production at the existing level of thinking at a given point in time. As Oliver Wendell Holmes, a Harvard Law professor and a judge of the US Supreme Court, once said: “Man's mind, once stretched by a new idea, never regains its original dimensions.” Thus, to the extent freedom of expression is available, ideas can be built by ideas upon existing ideas, whatever their current level may be.
 
The ability of freedom of expression to promote innovation does not depend on the level of technology or innovation in that society
 
 
In addition, whether the technological level of the society is elevated and what the real innovation level is, do not matter in terms of the support provided by freedom of expression to innovation.
 
For example, even if the capacity to advance technology in a global sense, is not probable in Turkey currently, technological advancement in the context of Turkey means getting close to the current technological limits , although globally creative destruction and innovation means advancing technology with new products and real substance. Freedom of expression is fully functional even in such an environment. It supports innovation in this secondary sense as well, because it promotes creative destruction at the society’s current level, by offering a way to eliminate obstacles that frustrate the nation’s and its entrepreneurs’ efforts to approach the frontier of global technological limits.
 
Freedom of expression enables the law to have a positive impact on the economy, through processes that encourage the society to embrace and make law
 
The first prerequisite for a society to embrace its potential for real economic growth is that the law itself should be shaped by the public and away from an exclusivist structure. This is the only way for the law, as a superstructure institution, to have a positive impact on the economy, as an infrastructure institution. Freedom of expression, which is a mandatory component of this process, maximizes innovative thinking through increasing dynamic effectiveness and supporting creative destruction. It also renders the law a servant of innovative thinking at another dimension: In time as a result of public demand, freedom of expression will enable a legal policy aimed at social welfare to effectively penetrate the legislative process, thus ensuring dynamic effectiveness is taken seriously when identifying legislative objectives. The first and main conscious step for all of these is to consciously devise a legal and public policy that expands and protects freedom of expression.
 
Freedom of expression ensures that the law has a positive impact on the economy by enabling access to information, eliminating information asymmetries, providing opportunity and strength for fighting systemic problems that prevent us from reaping the fruits of innovation, allowing the preservation and expansion of existing rights, and spreading democracy at the daily and processual levels in which it can more effectively express its relationship with social welfare and prevent democracy from being a momentary and static concept experienced only during the elections. By ensuring effective communication between society’s demands and the law-making process, freedom of expression gives a chance for the law to belong to society, at the same time promoting creative ideas, which is the raw material of the creative destruction process.
 
Freedom of expression is mandatory for sustainable growth
 
Some might think that I approach the issue only from the viewpoint of innovation and that there are other mechanisms involved in growth. But the situation is not any different in terms of those mechanisms either. If the three main elements of growth are investment, commerce and employment, “trust” is a necessary condition for each of them. Therefore, whatever smart moves you make in fiscal policy, however stimulating monetary policies the central bank adopts, sustainable growth is not possible without “trust”. And trust is offered in the same way it is offered to a two-year-old kid: Through transparency. As a matter of fact, expanding the scope of freedom of expression enables rendering government completely transparent through the domination of civil society in politics. Otherwise, those who restrict freedom of expression will gradually move away from society: They will be unable to hear the voice of the people. And this will revert the processes we have discussed above. Law will detach from society. Society will not embrace law. It will not be able to maintain its freedom. It begins to stagnate and lose its potential, because potentials cannot be maintained forever. Those who waste time instead of creating ideas and renewing themselves will become ordinary. This is stagnation. The risk for a high-potential society is to lose time. Those who cannot realize their potential will, in time, internalize stagnation and become ordinary. They will even forget the potential they once had. The antidote to this situation is to expand freedom of expression due to the links I discuss in this essay.
 
Another criticism similar to the one above is that, I am also overemphasizing freedom of expression and its effects on growth and welfare, and that, since this is a field of law in which I am heavily involved, I wish to relate everything to freedom of speech. However, if I have been able to convince you that freedom of speech is the main ingredient of all other freedoms, I should also mention that, regarding the other links that I established, my arguments are supported by Amartya Sen and Daron Acemoğlu, with whom I had the great pleasure of speaking together on 18 December 2014. Nobel-laureate Indian economist Amartya Sen concretely demonstrates the relationship between freedom and welfare. None of the terrible famines in world history has hit a society that has a functioning democracy, a healthy opposition and a free press. Examples are the Soviet Union in the 1930s, China in the 1950s, Cambodia in the 1970s, North Korea in the 2000s, and also the military dictatorships in Ethiopia and Somalia, and the pre-independence colonial regulations of Ireland and India. In addition, not only do rich countries avoid famines, poor countries which are open and democratic also do not experience famines. In his book titled “Why Nations Fail”, Prof. Daron Acemoğlu also points to the relationship between democratization and development with powerful clarity and convincing arguments.
 
That some countries with a negative freedom of expression track-record have achieved growth is a groundless argument
 
Another criticism could be that I attribute too much significance to freedom of expression because I am trying to create solutions that remain within the limits of a capitalist system, that is, by regarding a capitalist system as given; but other models are possible, such as the People’s Republic of China. Without intending to defend the capitalist system but keeping in mind that it has good and bad aspects and with the belief that capitalist systems that limit the scope of freedom of expression will lead to most effective exploitations; I would like to claim that the example of the People’s Republic of China does not seriously refute the facts I presented. In my opinion, the growth levels reached by today’s China do not constitute an exception to my assessments and theories. Even though there is no doubt that China has become freer in the last 30 years and continues to do so, having maintained its existence as a state for 2235 years, it is not a good idea to attempt to use a snapshot to test the hypothesis that freedom of expression is the fundamental concept for “any society to maximize sustainable growth in line with their own potential”. Growth achieved by mobilizing resources obtained through a production and export craze and using these resources for a growth that is based on urbanization and construction, where costs are minimized due to a system of semi-slavery, cannot be cited as an exception that refutes my arguments here. As a matter of fact, Turkey has done the same thing in a different way, but instead of producing and exporting, it has borrowed money. In Turkey’s case, this journey will end earlier, as the middle income trap is gradually becoming more real, the word “sustainable” becomes more relevant every passing day, and thus, legal policy preferences that would support growth are needed at an earlier point in time, while China finds it possible to continue its existing policies for the time being.
 
Although freedoms are many in quantity and type, since freedom of expression is a common necessary element for all of them in terms of the need to be used and protected at every freedom’s core, freedom of expression must be the starting point for any society that wishes to continue its journey of growth, development and welfare in keeping with its potential.
 
If freedom of expression is limited, law and the economy might be locked in a mutual reduction spiral
 
If conscious legal and public policy steps for expanding and protecting freedom of expression are not taken, there is nothing that can be done through law to support society’s journey towards sustainable growth in accordance with its own resources and its own potential. This is especially true for those societies that are governed by a state that has the habit and tendency of getting detached from society, regardless of who the current government happens to be. In any legal regime where freedom of expression is deteriorating, regardless of any improvements in terms of other rights and freedoms, the law cannot help the economy in terms of achieving sustainable growth in keeping with the country’s own real potential.
 
Moreover, because economic processes are significant enough to determine what law is and how it will be implemented, as long as freedom of expression remains limited, the law will be unable to support the economy towards maximum welfare, and further limitations of freedoms will become more likely. In an environment with limited freedom of expression, the law can assume any shape that serves the interests of a minority, as long as no economic crises are experienced. While such a legal system detached from society will serve minorities trying to exploit the situation, economic policies might help society swallow these legal changes more easily. In this context, it is not surprising that social spending peaked in Saudi Arabia during the Arab Spring, and that this policy was successful. Those in a position to claim rights can be persuaded through economic moves to not be passionate about claiming those rights. And this shows that the longer the environment of limited freedom of expression persists, the more likely it becomes that other rights and freedoms will also erode. That is to say, unless sincere steps are taken to promote freedom of expression through a conscious legal policy and public policy, the law and the economy will be caught in a mutually reinforcing reduction spiral.
 
At some point in this reduction spiral, the cycle might be broken by a financial crisis, but instead of a conscious freedom-of-expression policy that promotes welfare within the context of a legal system based on individual freedoms, it is difficult to expect a society to make progress through these cycles. Moreover, experiencing such a rupture in an environment of limited freedom of expression will make it more difficult to internalize that rupture in the most efficient and corrective way, to take lessons from it and take the necessary corrective action in terms of law. Although a financial crisis can disrupt the status quo, there is nothing to prevent newly elected groups from turning out exclusivist or embracing deeply exclusivist approaches after making some progress through inclusivist policies, as has been frequently witnessed in Turkey where bureaucratic state domination is always permanent. Surely, in such a “momentary breaking point”, freedom of expression might also not be able to ensure that the new regime does not suffer from the defects of the previous one, but it might nonetheless enable the new regime to be ahead of the previous one by ensuring that the lessons of the crisis are learnt as realistically and beneficially as possible.
 
Freedom of expression is functional also, because society might use the crisis as an opportunity to drive its own welfare instead of just watching the same cycle of exclusivity repeat and consoling itself with the minimal changes that inevitably take place in the country due to changes in the global conjuncture and worldwide advances in technology.
 
On the other hand, making progress simply by embracing the lessons of financial crises is a very ineffective method of learning and building welfare, when compared to a scenario where a society that possesses a periodical or well-structured democratic tradition but cannot experience democracy to its fullest extent on an individual level achieves its real welfare and growth potential under a legal system based on individual freedoms that provides the society with real freedom of expression through conscious policies.
 
Freedom of expression is crucial if the target is a fair income distribution
 
Finally, those readers who associate social welfare with “happiness” might say that this article only talks about economic growth and does not ever mention the justice element of income distribution. Let me address this issue too. First of all, economic growth is a very important target in itself, and seeking fairness in income distribution should not constitute a “but” against the desire for growth. On the other hand, if welfare without a sense of justice does not result in happiness for a given society, then freedom of expression will ensure that a legal policy embraced by the society will not see any public good in a growth policy that worsens injustice, and measures will be taken to spread the benefits of growth to all sections of society.
 
Seeking justice in growth can only be stimulated by freedom of expression in any society that believes that it cannot afford to turn a blind eye to the problem of whether growth disturbs income distribution, chooses not to be consoled with the fact that the poor of today are more prosperous than the poor of the past, and pursues immediate social justice. Freedom of expression may not always trigger the search to achieve justice in growth, depending on the structure of the society in question, its historical evolution, culture and structural characteristics. On the other hand, in any society that chooses to care about justice in growth, these efforts cannot be encouraged without freedom of expression. Moreover, freedom of expression makes it possible to fight the institutionalization of unequal income distribution between generations, compared to a situation where such a fight is only possible if and when current social tendencies happen to allow it. If this has been the order of the world for 2,500 years despite the fact that the individuals who hold positions of power and share the cake are replaced by a new generation of individuals every 30 to 40 years, then the poison must be residing within each generation of adults, and the antidote within one younger generation. On the other hand, when the poison effortlessly flows from generation to generation within a culture, the new generation that wants to declare its freedom from that poison must be able to unite firmly and create new dynamics. Freedom of expression is the very element that will make it easier for that generation to unite and produce those dynamics. As long as freedom of expression is repressed, the adult generation that sustains the order will age the younger generation that is eager to seek an antidote. And this will reduce the power of the fight against unequal income distribution.
 
Conclusion
 
Promoting and expanding freedom of expression through conscious legal policy choices is the first and the most efficient obligatory step for achieving the maximum sustainable economic growth each society’s potential unfolds. If the society in question really cares about this issue, freedom of expression also provides an opportunity to fight unequal income distribution that may emerge in the course of growth, by rendering the system transparent, by promoting equal opportunity, and by encouraging competition on a level playing field.
 
* GÖNENÇ GÜRKAYNAK Attorney LL. M, Esq.
* The original discussion can be viewed by following this link