Speech for Me But Not for Thee

Freedom-of-Speech-megaphone-300x23611John Stuart Mill’s On Liberty is one of the greatest books on political philosophy ever written. Mill gives a powerful argument for freedom of speech and a passionate start for a liberal political philosophy. The idea that coercion is only justified when the individual threatens the well-being of others is one of the most influential liberal doctrines in the history of ideas:

The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

Obviously there are others philosophies that value “freedom of speech”. Our Constitution, which was written before Mill was born, has the First Amendment; Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. For many Americans this passage is easy to interpret and the debate on free speech ends here. But the political language of the 18th century was different than ours. I’ve never been a fan of constitutional originalism, but when James Madison wrote the First Amendment, the emphasis was on the political. The First Amendment was originally about government and seditious libel.  As P. A. Madison convincingly argues:

Freedom of speech and of the press served one purpose in America: To remove the fear of the common law doctrine of seditious libel so citizens could freely speak or publish without license their grievances against public policy or conduct of public officials. One of the distasteful things found under the common law was the government practice of criminalizing or shielding itself through requiring license to publish of any criticism it felt made people dissatisfied with their government or government established religion.

Laws that regulate morality, abusive speech, and public conduct do no violate the First Amendment, at least how it was originally interpreted by our Founders. It’s why blasphemy laws and obscenity laws were on the books for so long. The courts, for better or worse, have gradually moved away from the Founders, and the way “freedom of speech” is currently understood has more to do with John Stuart Mill than with James Madison or Natural Law.

As much as I respect Mill, his principles of freedom and individuality are only useful as a rule-of-thumb. They cannot be used as the sole building block of our social order. When Russell Kirk skewered Libertarians in his famous essay, Libertarians: the Chirping Sectaries, he pointed to John Stuart Mill as their golden calf:

Was the world improved by free discussion of the Nazis’ thesis that Jews ought to be treated as less than human? Just this subject was presented to the population of one of the most advanced and most thoroughly schooled nations of the modem world; and then the crew of adventurers who had contrived to win the argument proceeded to act after the fashion with which we now are dreadfully familiar. We have come to understand, to our cost, what Burke meant by a “licentious toleration.” An incessant zeal for repression is not the answer to the complex difficulties of liberty and order, either… liberty cannot be maintained or extended by an abstract appeal to free discussion, sweet reasonableness, and solitary simple principle.

Even on the issue of free speech, where I lean towards the arguments in On Liberty, things quickly run into absurdities (the Yale Record has an amusing reductio ad absurdum)Fortunately, the writings of Dewey, Rawls, and other political philosophers have allowed us to look beyond the simple principles of 19th century liberalism. But the discussion of free speech in the media has noticeably regressed and the debate over student activism (e.g. at Yale and Mizzou) is instructive.

While it doesn’t surprise me that writers like Jonathan Chait use the language of Mill (1), conservative writers who do the same confuse me (2). When William F. Buckley wrote against flag burning, he thought he was protecting America from pernicious ideas. Distinctions between “speech” and “expression” aside, Buckley thought that anti-American speech lead to actions that would harm American society. In the words of Russell Kirk, “it is consummate folly to tolerate every variety of opinion, on every topic, out of devotion to an abstract “liberty”; for opinion soon finds its expression in action, and the fanatics whom we tolerated will not tolerate us when they have power.” You may agree or disagree with these thoughts, but they at least make sense from a conservative perspective. 

However, the ghost of John Stuart Mill haunts the 21st century press and instead of using the language of Buckley, conservative writers have decided to embrace On Liberty in support of their cause. This is fine as far as it goes, but it makes little sense from a philosophical standpoint. Conservative writers might dress up their articles in the language of Mill, but the echoes of Buckley still linger. They emphatically called for restricting free speech when it came to flag burning, the Ground Zero Mosque, and anything else that seriously threatens their values, just like the student activists in Yale who violently reacted to Erika Christakis’ email. In their minds, we are in the throes of a culture war and “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured” (3). 

I think the debate would be clearer if we all took heed from Alexis de Tocqueville. He understood that freedom of speech was a vital component of democracy; in countries where the doctrine of the sovereignty of the people ostensibly prevails, the censorship of the press is not only dangerous, but absurd (4). But he also understood that speech, like anything else, needed to be regulated in some respect, or else it would lead to a dangerous state of affairs. When he said that “I know of no country in which there is so little independence of mind and real freedom of discussion as in America“, it was more of a backhanded compliment. He disliked the “tyranny of the majority”, but he also admired America’s “regulation” of decadent speech (5):

The Inquisition has never been able to prevent a vast number of anti-religious books from circulating in Spain. The empire of the majority succeeds much better in the United States, since it actually removes any wish to publish them. Unbelievers are to be met with in America, but there is no public organ of infidelity. Attempts have been made by some governments to protect morality by prohibiting licentious books. In the United States no one is punished for this sort of books, but no one is induced to write them; not because all the citizens are immaculate in conduct, but because the majority of the community is decent and orderly.

The only reason we tolerate Neo-Nazis, KKK members, and other depraved ideologies is because they exert little influence on our social order. But what if that changes? Do we sit by and watch them tear down civil society? Or do give into censorship? My example provides an easy answer, but many relevant issues don’t allow for such simple solutions. Prudential judgments are all we can work with.

This is why I find these discussions about “free speech” to be bizarre. When it suits them, conservatives invoke the principles of Mill to support their cause and when it doesn’t, the liberal veneer is stripped away. Everyone and no one is a liberal. And while I generally support mainstream conservative views on academic freedom and “trigger warnings”, that is by mere coincidence. They’ve picked a side in the crowded theater while I’m still deciding where to sit. So unless we’re debating the nitty gritty of free speech, I think we should drop the language of John Stuart Mill. We shouldn’t pretend that we’re serious about protecting “free speech” in its purest form. Because when your values are under attack, only the most ardent liberal is reading On Liberty. At least the Yale protestors are honest about that much.


Notes:

1. From “Not a Very P.C. Thing to Say” by Jonathan Chait

It is true that liberals and leftists both want to make society more economically and socially egalitarian. But liberals still hold to the classic Enlightenment political tradition that cherishes individuals rights, freedom of expression, and the protection of a kind of free political marketplace. (So, for that matter, do most conservatives.)

2. David French and Alex McHugh enthusiastically support the statements made by Yale President Peter Salovey in support of the free exchange of ideas:

Nonetheless, I recognize that all of us here, in different ways, might also like to live in a campus community where nothing provocative and hurtful is ever said to anyone. And that is the part that I cannot–nor should not–promise you. For if we are not willing to be shocked, then we may not be allowing ourselves to be open to life-changing ideas, ideas that rock our worlds. And isn’t the opportunity to engage with those very ideas–whether to embrace them or dispute them–the reason why you chose Yale?

3. From the majority opinion of the Supreme Court in Schenck vs United States by Oliver Wendell Holmes Jr:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced.

4. From Chapter 11 of Democracy in America by Alexis de Tocqueville:

In countries where the doctrine of the sovereignty of the people ostensibly prevails, the censorship of the press is not only dangerous, but absurd. When the right of every citizen to a share in the government of society is acknowledged, everyone must be presumed to be able to choose between the various opinions of his contemporaries and to appreciate the different facts from which inferences may be drawn. The sovereignty of the people and the liberty of the press may therefore be regarded as correlative, just as the censorship of the press and universal suffrage are two things which are irreconcilably opposed and which cannot long be retained among the institutions of the same people. Not a single individual of the millions who inhabit the United States has as yet dared to propose any restrictions on the liberty of the press.

5. Tocqueville also recognized that “this irresistible authority is a constant fact, and its judicious exercise is only an accident.

Links:

  1. Original Meaning: Freedom of Speech or of the Press by P.A. Madison
  2. If our free speech isn’t in jeopardy, then why wont my TA let me spend all of class yelling “FUCK BRIAN” at Brian? by R. Lackner
  3. The New Intolerance of Student Activism by Conor Friedersdorf
  4. A timeline of events and opining Mizzou protests by Ryan Murphy
  5. Not a Very P.C. Thing to Say by Jonathan Chait
  6. Yale Comes Down on the Side of Free Speech by David French
  7. It Needed to be Said: Yale’s President on Free Expression by Alex McHugh
  8. Flag Burning Amendment by Jonah Goldberg
  9. Demonization and the Ground Zero Mosque by Dennis Prager
  10. On Free Speech at Yale
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