So I was going to ignore “politics” for awhile. Unfortunately, Freedom of Speech has become a hot social issue… I know, right? This is America, and we’ve got this little sentence in our founding legal contract.
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.
So, you may have been hearing about the recent campus riots where crowds of “liberals” (and I put that in quotes because the students rioting might be progressives but they aren’t liberals by any meaningful definition of the term anymore) managed to shut down speeches by speakers they felt should not have been allowed to spread their dirty filth on hallowed campus grounds. Hate speech is violence, so apparently they were acting in self-defense. And yes, that is how some of the rioters have been justifying their act of denying those they despise the right to speak in a public forum and others the right to peaceably assemble to listen to them.
Now, to be clear, I have little patience with much of what some of those speakers had to say. But I would feel the same about the riots if the speakers had been Flat Earthers, or anti-religious zealots calling for a constitutional amendment banning Hate Speech, or anti-white racists who claimed that whites are a subhuman species responsible for every evil in the modern world. Let them open their mouths in a public forum and argue their point with anyone who wants to come out and listen to and debate them.
But this morning I read a New York Times editorial, by a university provost, that forced me to sit down and actually refute it. I strongly recommend before reading on that you read his think-piece.
Read the article? Good, now here we go.
Speech Must Advance a Common Public Good.
As erudite as Dr. Baer is, he starts to go wrong fairly early in the article, a sure sign that his basic premise is flawed. You begin to see it here:
During the 1980s and ’90s, a shift occurred in American culture; personal experience and testimony, especially of suffering and oppression, began to challenge the primacy of argument. Freedom of expression became a flash point in this shift. Then as now, both liberals and conservatives were wary of the privileging of personal experience, with its powerful emotional impact, over reason and argument, which some fear will bring an end to civilization, or at least to freedom of speech.
But the question of whether or not to “privilege” personal experience over reason and argument isn’t a question of free speech. You can decide to pay more attention to personal experience without shutting down those who want to privilege reason and argument (or mix both) in coming to their conclusions.
He conflates Freedom of Speech with something that doesn’t exist: Freedom to Be Taken Seriously:
“Instead of defining freedom of expression as guaranteeing the robust debate from which the truth emerges, Lyotard focused on the asymmetry of different positions when personal experience is challenged by abstract arguments. His extreme example was Holocaust denial, where invidious but often well-publicized cranks confronted survivors with the absurd challenge to produce incontrovertible eyewitness evidence of their experience of the killing machines set up by the Nazis to exterminate the Jews of Europe. Not only was such evidence unavailable, but it also challenged the Jewish survivors to produce evidence of their own legitimacy in a discourse that had systematically denied their humanity.
Nobody needs to take the Holocaust-denier seriously, and nobody needs to debate him (although it is certainly a good idea if someone at least debunks his “facts”). But Dr. Baer is leading to something more dangerous:
“Lyotard shifted attention away from the content of free speech to the way certain topics restrict speech as a public good. Some things are unmentionable and undebatable, but not because they offend the sensibilities of the sheltered young. Some topics, such as claims that some human beings are by definition inferior to others, or illegal or unworthy of legal standing, are not open to debate because such people cannot debate them on the same terms.”
Not open to debate. To see the problem here, let’s substitute a few facts to create a hypothetical: instead of Lyotard, we have Unbeliever X.
Unbeliever X tours America arguing that not only is there no God, but religion is responsible for most of the evils of the modern world. Furthermore, religious superstition and bigotry is the reason why we’re not living in a utopia right now, and we need to amend the constitution to outlaw all institutions of organized religion as Enemies of Reason and of The People. Mr. X categorizes everyone who witnesses to profound personal encounters with the divine spirit or offers argued reasons why he might be wrong as delusional or deceitful, systematically denying that their position can be both rational and moral. Believers are either ignorant or mistaken, in which case they must be re-educated, or they are evil, in which case they must be cast from society. At minimum, in order to vote, citizens must take an oath denying all religious convictions and so prove that they can vote rationally. Progress demands it.
There are probably at least some militant atheists who believe all that, but that’s not the point; the point is Unbeliever X’s view is fundamentally opposed by a great majority of Americans, and is deeply, deeply de-legitimatizing to all religiously inclined Americans. So should his free speech be restricted? Should religiously inclined students riot to shut down his speech when the local student-atheist club invites him to speak on campus? Should insulted and threatened groups declare his repugnant views not open to debate?
It is indisputable that some words can cause harm; words are the tools of democracy. So, who decides what is or is not open to debate? A national majority? A violent minority? Lawmakers? College presidents or student senates? Dr. Baer seems to completely miss the worm in the apple. Instead, he believes that speech that does not “lead to the truth” is not worth protecting. Such not-good speech must be restricted so that freedom of speech for “those who previously had no standing” may somehow increase. To continue his explanation:
The great value and importance of freedom of expression, for higher education and for democracy, is hard to underestimate. But it has been regrettably easy for commentators to create a simple dichotomy between a younger generation’s oversensitivity and free speech as an absolute good that leads to the truth. We would do better to focus on a more sophisticated understanding, such as the one provided by Lyotard, of the necessary conditions for speech to be a common, public good. This requires the realization that in politics, the parameters of public speech must be continually redrawn to accommodate those who previously had no standing.
So he has expressed his approval of terms like “Not open to debate,” and “the necessary conditions for speech to be for a common, public good.” And what does he suggest be done with speech that is not open to debate (by whose judgement?) and not conducive to the public good (again, by whose judgement)?
Simple; let it be restricted to that cesspool of all things bad, the internet. After all, if someone wants to read something not open to debate, or to debate something not judged conducive to the public good, he or she can go there. Since the internet is available, how is shutting down a public speech by the Not Good an infringement of their Freedom of Speech?
Lest you feel that I am exaggerating, here’s his conclusion:
The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.
In other words, Hate Speech is not Free Speech. I’ll leave that conclusion there, but now that I’ve laid out what Dr. Baer thinks, what do I think? Do I have a different, constructive, definition of Free Speech?
Freedom of Speech is Simply Freedom
The founders and ratifiers of our government system were deeply hostile to government power. To be more specific, they were hostile to creating a system of government that might lead to rule by a “distant and arbitrary” power. After all, they had only recently finished revolting against the distant and arbitrary power of London; they had no intention of filling the vacuum with a geographically less distant but no less powerful government on our side of the Atlantic.
They were also deeply studious thinkers, well-read in history and in political theory, and cognizant of all of the potential usurpations of government power by historic example. How paranoid were they? Paranoid enough that, to win ratification, the Constitution’s backers had to swear on their immortal souls that the the first order of the new government would be to write out and vote into law a Bill of Rights explicitly laying out what the new national government could not do.
What was their attitude towards Freedom of Speech? Optimists like Thomas Jefferson argued that, in a free marketplace of ideas, where truth may freely do trial by combat with error, truth would win out. In other words, he considered Free Speech an inherent good. Lyotard and Baer obviously think that Jefferson was, at best, a Pollyanna. (He was certainly arguing from a rather privileged point of view).
But the majority of the new Americans didn’t share Jefferson’s sunny opinion of the positive social good of Free Speech; they defended freedom of speech (outside of a couple of very, very narrow parameters like incitement and libel), because, again, they were deeply suspicious bastards. They understood that any power you give a government for good reasons can be used for bad reasons. Governments naturally seek to expand their powers, and to make the broadest use of the powers they are given.
In other words, no party or group will stay on top for ever, and rational people fear what their political enemies might do with the powers they hand over to government, once those enemies wield the levers of power for their own benefit. If that sounds too abstract, go back to the Holocaust/Atheist examples. Who decides what is not open to debate? The correct answer is nobody; if a government can make that decision, then those in power will make that decision in their own favor. Instead, as a free person, you decide what is worth your time to listen to, or what is vital for you to debate. If you don’t want to listen, don’t listen. If you don’t want to debate, don’t debate. But don’t tell anyone else that they have no right to express their opinion in any venue that will allow them to, or seek to shut down or block access to a public platform they have been given. They are entitled to their soapbox and to their willing audience. If they are not, then their speech isn’t free. And if theirs isn’t free, then yours isn’t either; it’s only tolerated for now.
And yes, this means allowing some people whose opinions you consider to be truly vile to speak on your college campus. If you exercise the Mob Veto to shut down speech you find abhorrent, you set the stage for the mobs who find your speech abhorrent to return the favor. If your rewrite the laws to favor Good Speech over Bad Speech, using what you think are perfectly rational criteria, you give government power to someday favor what you consider deeply bad speech and suppress what you consider good speech.
Remember the lesson from A Man For All Seasons.
- Alice More: Arrest him!
- More: Why, what has he done?
- Margaret More: He’s bad!
- More: There is no law against that.
- Will Roper: There is! God’s law!
- More: Then God can arrest him.
- Alice: While you talk, he’s gone!
- More: And go he should, if he was the Devil himself, until he broke the law!
- Roper: So now you’d give the Devil benefit of law!
- More: Yes. What would you do? Cut a great road through the law to get after the Devil?
- Roper: I’d cut down every law in England to do that!
- More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast– man’s laws, not God’s– and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law for my own safety’s sake.
If the Devil himself is invited to speak on campus, by all means protest as loudly and as eloquently as possible. But let him speak unhindered, and let those who wish to listen and debate, listen. Not for his sake, but for yours.
To be absolutely clear, we have not enshrined Freedom of Speech in this country because we hope that the resulting speech will be valuable and serve some social good; when it does, that’s just a bonus. We have enshrined Freedom of Speech because we know that the first liberty to fall before creeping tyranny is speech. Free Speech isn’t meant to make the world a better place, although when Truth does win out in the marketplace of ideas, it’s a wonderful thing. Free Speech, like Freedom of the Press and Freedom of Assembly, is a safeguard against government, written into our founding document by people deeply convinced of the corruptibility of all human institutions and of the tendency of all governments to increase their power.
So, for our safety’s sake, we will put up with the idiots, the ignorant, and the hateful, because tolerating their speech protects the freedom of our speech. That is the greatest common public good of all.