Why Does Freedom Of Speech Matter?

Freedom of speech is under serious threat in the United States. The threat comes from various angles --not surprisingly, mostly from people in power. It was dealt a serious blow under the Obama administration when the Supreme Court ruled in Holder v. Humanitarian Law Project that the government can ban advising terrorist organizations on how to nonviolently resolve conflicts. There were a number of other actions under the Obama administration that threatened a free press--the listing of a journalist as an unindicted co-conspirator, the attempt to force journalist James Risen to testify against one of his sources, and the seizure of AP reporters' phone records, to name some of the more extreme examples.

President Trump, unlike Obama, has taken an openly and transparently hostile attitude to the "Fake News Media" and, during the campaign, floated the idea of "open[ing] up" libel laws so he could sue press outlets that criticize him. Already, we have seen his administration attempt to bully the press and his critics from his position as president (exactly as he has done many times in the years before his presidency), and his attorney general has stated that arresting WikiLeaks founder Julian Assange is a "priority." We are very likely to see more, and worse, abuses from the Trump administration as his presidency goes on.

The United States Bill of Rights
(National Archives--Time Life Pictures/Getty Images)

To address a much-discussed but far more minor issue, we have also seen a number of instances of attempts, some successful, on college campuses to prevent disagreeable people from speaking on campus--Ann Coulter, Charles Murray, and others. The reasons to object to such speakers' ideas are innumerable, but the attempts to prevent them from speaking on campuses is dangerous and misguided, even if it is only a marginal concern compared to the much greater threat to freedom of speech from other sources.

So far I have been deliberately America-centric in my focus. That is because, compared to the rest of the developed world, the United States has actually done an impressive job of providing legal protection for freedom of speech. In other highly developed countries, there is much less protection for freedom of speech enshrined in the law--there are laws against hate speech, Holocaust denial, and so forth in many highly developed countries. Of course, in less democratic countries, the restrictions on freedom of speech are far more extreme.

It is clear that the idea of freedom of speech, old as it is, has a long way to go before becoming universally accepted. For all of the actions that threaten freedom of speech, there are many who will defend them. It is a disheartening fact that opposition to freedom of speech comes from people across the political spectrum. Many, of course, would not openly say they oppose free speech, but they support restrictions on speech that, in my opinion, cannot be justified. On the right, we see support for bans on flag desecration and pornography, and censorship of "offensive" art (in the 1990s it was Marilyn Manson and gangsta rap, now it's Shakespeare In The Park's performance of Julius Caesar). On the left, we see support for bans on "hate speech," and support for violently dispersing right-wing and fascist marches and rallies. Quite recently, a figure no less mainstream than Howard Dean argued that hate speech is not a constitutionally protected form of free speech:

Hate speech is not protected by the first amendment. https://t.co/DOct3xcLoY

— Howard Dean (@GovHowardDean) April 21, 2017

All of this raises some questions: What speech really should be tolerated? What reason do we have to tolerate hate speech, or false claims, or flag burning, or anything else that we think is offensive and lacks any intellectual merit? Which brings me to the purpose of this post.

I believe strongly in freedom of speech for every conceivable view and opinion, regardless of how despicable and offensive. I am not necessarily an absolutist with respect to free speech, as I do believe that some speech should be criminalized and sometimes censorship could be justified (I will discuss this later), but these instances are narrow and very specific. In my view, Nazi hate speech, flag-burning, and flagrant lies are all generally protected under the banner of free speech, and should be.

It is pretty easy to make the case against some of the more extreme forms of repression and censorship that occur in less democratic countries, where criticizing the government and the figures within it can incur criminal penalties. Obviously, to have a functioning democracy, we must be able to debate government policy and criticize those within the government. That is what makes Donald Trump's longstanding vindictiveness toward anyone who criticizes him so troubling. Democracy can only function if the populace is able to make well-informed decisions, and attempts to squelch out criticism of those in power means we only hear one side of the debate.

More complex are situations like what we have in many highly developed parliamentary democracies, where, as mentioned, there are laws against hate speech, Holocaust denial, and other extreme and offensive forms of speech. To be certain, speech of that nature seems vastly less worthy of defense than criticism of government policies and officials. But, in my view, protecting those forms of speech remains important.

It is worth acknowledging, for one thing, that the burden of proof ought not be on those who argue against bans on offensive speech, but rather on those who argue for them. The assumption for any restriction on freedom should be that it is unjustified unless proven otherwise. It is dubious that society would be much worse for wear if we were to collectively abandon drinking alcohol and watching reality TV, but we can easily see why laws against doing those things are objectionable: freedom means the freedom to do things that are not especially good for oneself or society as a whole, and if we were to ban every extraneous thing that people do, we would be living in a very oppressive society.

So, then, what are the arguments for banning offensive speech--what separates it from non-offensive speech? The most obvious answer, and a strong factor in many restrictive laws and instances of censorship, is that, of course, it offends. Without a doubt, the reason many people support restrictions on offensive speech--whether it's racist hate speech or flag-burning--is that it offends them, plain and simple. That, of course, is a terrible argument for banning anything. It is entirely subjective what is and isn't offensive, and if we were to ban everything that offends anyone, very few things would be allowed. Many works of literature we consider classics now were considered offensive--obscene, even--and faced censorship accordingly. At one point in time, the assertion that the Earth revolves around the sun, and not vice versa, was obviously seen as offensive.

A stronger argument comes from a recent Los Angeles Times op-ed:

Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies. Exposure to racial slurs also diminishes academic performance. Women subjected to sexualized speech may develop a phenomenon of “self-objectification,” which is associated with eating disorders. 

These negative physical and mental health outcomes — which embody the historical roots of race and gender oppression — mean that hate speech is not “just speech.” Hate speech is doing something. It results in tangible harms that are serious in and of themselves and that collectively amount to the harm of subordination. The harm of perpetuating discrimination. The harm of creating inequality.

Being exposed to pervasive hurtful speech can certainly have real negative effects on someone. So, then, is that not grounds to ban hateful speech? I do not think it is. It's impractical to criminalize something on the basis that it causes emotional distress. Certainly, hate speech can be extremely hurtful to groups who are the target of it, but it's impractical to try to prevent anyone's feelings from being hurt, or even to try limit it, through the use of law. It is a noble goal to try to limit the amount of emotional distress people feel, and certainly a worthy goal to try to make society less of a hurtful place for disadvantaged minorities. However, the idea that the way to do that is by criminalizing that which causes emotional distress, is fundamentally misguided. And, of course, criminalizing hate speech doesn't do anything to address the underlying hate. 

From the conservative side, the argument is made that there is some kind of higher ideal that certain forms of speech violate, and that this is a reason to ban them. Certain types of speech are profoundly immoral to the extent that the only course of action is to ban them--they have a corrupting influence on society by spreading disrespect for sacred ideals. This is the argument used to support bans on flag desecration, and moral censorship of music, television, etc. While it is generally an argument used by conservatives and rightists, it could just as easily be used by leftists for their purposes--that racist and other hateful types of speech are immoral and deserve to be banned.

The problem, of course, is that the idea of what is and isn't moral is not easy to answer, because there is no empirical way to get an answer to the question. Even in cases where there is agreement about the fundamental source of morality--such as among Christians, who regard God as the source of morality, and the Bible as the word of God--there is still enormous debate over what is and isn't immoral. And we are thoroughly justified in asking why it makes sense for the government to make it its business to force people to be moral. Unless we can discover some real, tangible harm done by the supposed immorality, what business is it of the government to force people to be moral?

We may also run into the argument that restricting speech is necessary as a preventive measure--if we penalize certain utterances, we can catch wrongdoers before they have a chance to commit more serious crimes. This idea is offered on the left with respect to fascism: by preventing fascists from holding rallies and marches in the first place, we prevent them from organizing and thereby causing greater damage in the long run. This seems to be a very dubious prospect to me. Fascists (and anyone else) could simply meet in private to surreptitiously plan their activities. And, in point of fact, hate speech restrictions do not seem to have been especially effective at squelching out fascism and racism, given the rise of far-right parties across Europe. On these same grounds, we can dismiss the similar argument that by banning the incitement of hatred, we will reduce hate-fueled violence.

The argument for banning lies may seem the most persuasive, but it is still troublesome. It is fair to ask why the government (or anyone) should have the right to decide what is the truth, and punish those who challenge it. Of course, we have libel and slander laws so that damage caused by lies can be addressed in civil court, but the idea that lies should be treated as a criminal offense means letting the state dictate what the truth is, rather than allowing it be decided through rational debate.

I am unaware of any argument against freedom of speech that does not fall into one of these categories, which means that we should conclude that restrictions on speech (barring a few instances which I'll get to later) are unjustified. But suppose we assume, for the sake of argument, that there is some reason we should lean toward restricting hate speech (or obscenity, or whatever your least favorite form of speech is). Is there any compelling reason we can come up with not to do it? In my view, yes: there are several.

As the great philosopher Baruch Spinoza (an early defender of freedom of speech) wrote, "All laws which can be broken without any injury to another, are counted but a laughing-stock, and are so far from bridling the desires and lusts of men, that on the contrary they stimulate them." That is, restrictions on certain types of speech run the risk of lending them more legitimacy than they deserve. Resorting to force and coercion to try to eliminate certain utterances seems very much like a confession that one lacks any rational argument against such utterances. If we have convincing arguments against the claims espoused in hate speech, obscenity, etc.--or if the speech in question is so transparently anti-intellectual that it should convince no one--why try to censor it?

Censorship and punishment further lend credibility to claims of victimhood that often come from groups like fascists and Nazis, and merely inflame outrage from the people who are inclined to be sympathetic with such groups. (If we extend censorship even further, as some leftists would like to, to more mainstream conservatives, the argument becomes even stronger.) The same argument applies to the people rightists would like to censor, naturally: censorship very much runs the risk of being counterproductive (look at how many books have been banned throughout history and ask how successful those bans were). 

There is further a moral question to address: is responding to words with force really justified? The rhyme we always use on children, "sticks and stones can break my bones but words can never hurt me," is an oversimplification, of course, but it isn't without a great deal of truth. Fining or imprisoning a person damages them in a tangible way; words do not. Again, I am fully aware of the emotional distress words can cause, but trying to create a world in which no one is ever upset by anything anyone else says is neither practical nor desirable. 

Facing offensive speech head-on offers a clarity that censorship cannot: it allows us to figure out why these utterances are so repulsive to us, rather than simply attacking those who make them. Further, as Supreme Court Justice Louis Brandeis wrote, "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." If the government punishes people for their speech, does it not encourage intolerance and force over rational debate? 

I fully realize that not all ideas deserve debate. Even engaging in debate about whether or not the Holocaust really happened or is just a Zionist hoax is enough to cause us to lose our humanity, as Noam Chomsky put it. But allowing people to come to their own conclusions about the validity of arguments for repulsive positions such as racism and Holocaust denial allows them to realize the insanity of those arguments, rather than simply being forced to trust that the government has good reasons for banning such arguments. In this post, I have been deliberately taking on the strongest arguments I can find against free speech, because debunking those arguments is the strongest way to defend free speech. The strongest way to debunk Holocaust denial, racism, etc., is to let the supporters of those positions make their strongest arguments and then debunk them--not to prevent them from making those arguments in the first place. And if their hateful utterances fail to even take the form of arguments, that only exposes the people making them as irrational and monstrous. 

If nothing else, pure self-interest should be a motivating factor for the support of freedom of speech. Violence begets violence, hate begets hate, and censorship begets censorship--by eroding respect for the idea of freedom of speech, one opens oneself vulnerable to censorship. Some leftists may be thrilled with France's anti-hate speech laws, but they may be less thrilled with France's crackdown on the Boycott, Divestment, and Sanctions movement under the pretense that it is hate speech. Not surprisingly, giving those in power permission to censor certain viewpoints means they are likely to use that power to censor the viewpoints they dislike. Similarly, conservatives who have argued for censorship are in a weak position to object when college students try to prevent right-wing figures from speaking on their campuses. As a leftist, I have to note that it is stunningly shortsighted of my fellow leftists to support giving the government the power of censorship while expecting it not to be used against us.

"But wait!" many will argue, "I don't support government censorship like you're talking about, I support action by private citizens to keep fascists from organizing, and to deny people with bad views a platform." The same arguments apply to these tactics: trying to shut down right-wing rallies runs the risk of being counterproductive, and erodes the respect of freedom of speech that is crucially important for a free society. Having to fear violence or harassment from private citizens is no less of an impediment to free speech than having to fear punishment from the government. In some cases, it is more so. 

As for the idea of "no-platforming," part of the problem the left (and other unpopular, non-mainstream viewpoints) have faced is media marginalization (how many times have you seen Noam Chomsky on CNN compared to Newt Gingrich? How much attention did the media pay to Bernie Sanders as compared to Donald Trump or Hillary Clinton?). Attempting to marginalize other viewpoints by denying them the same platform we ask for our views not only revokes our right to complain about such marginalization, it makes it more likely to keep happening. Further, many of the previous arguments still apply: no-platforming gives the target the opportunity to (rightfully) claim they're the victim of intolerance, and deprives us of the clarity that could exist if they were allowed to make their arguments (if they have any) and their opponents were allowed to rebut them. It is very seriously worth asking what the no-platforming movement has so far achieved, and whether its main accomplishment is providing its ideological opponents ammunition.

So what exceptions should there be to freedom of speech? In Brandenburg v. Ohio, the Supreme Court ruled that speech directed at inciting "imminent lawless action" could be criminalized, which seems a reasonable standard from my perspective: if a person is calling for a crime to be committed in the immediate future (e.g., to borrow Glenn Greenwald's example, telling a mob of people wielding torches to burn a house down), it seems reasonable for that to be illegal. What distinguishes that from other advocacies of criminal activity (which are not designed to incite imminent lawless action) is that those may be more abstract, e.g., at some point in the future this action should be taken, and it is valuable to be able to discuss whether certain illegal acts should be carried out (democracies have been founded through what started as illegal acts, and the Civil Rights movement achieved a great deal through civil disobedience).

It also seems reasonable to treat direct threats of harm toward specific people as criminal acts, given the intended effect of threatening another person's security--death threats, for instance, are a serious crime in many jurisdictions. What separates this, again, from blanket threats is that those can be of some value in discussion (e.g., "we will riot if these oppressive laws are not repealed.").  Being personally threatened is different than simply hearing a threat directed at a broad group that one falls into.

Further, restrictions on freedom of speech that would normally be unacceptable may be acceptable in extreme circumstances; for instance, I am open to the idea that at least some of the restrictions on free expression during the American Civil War were justified, given the ongoing armed rebellion and the precipitous situation with the border states. However, we could certainly not accept the idea that any war, no matter how far away, that the government enters into could serve as an excuse to curtail free expression, given that the United States has been engaged in war for almost sixteen consecutive years now, and has spent much of its existence involved in wars (often unnecessary).

The freedom to speak one's mind is undoubtedly a crucial right in any genuinely free society. There are few things that come more naturally to humans than speech, and punishing a person for expressing their opinion--however heinous that opinion may be--is a serious enough restriction that there must be a strong justification for it. In my view, there are very few instances where it is genuinely justified to do so. As old as the idea of freedom of speech is, it is not a right that is safe today. It is the responsibility of all people who believe in liberty to defend it.