What is free speech, and why does it matter?
Free speech and campus activism, part one
A little over a year ago, I wrote an article here on Medium about important conversations about race happening on the campus of Yale University, and the way that those conversations were being misinterpreted in harmful ways.
I tried to address many of the common mistakes that people make when criticizing campus race activists. However, I did not specifically address what is probably the most common flaw: the knee-jerk grasping at “free speech” as a blunt invalidation of what the activists and their allies are asking for on campuses. I felt that this topic deserved a lot of thorough consideration on its own. This article is part one in my attempt to address it.
When I think about free speech, the movie V for Vendetta comes to mind. The premise of the film is that an authoritarian, oppressive regime has taken power in Britain, and our heroes must inspire the people to rise up and overthrow tyranny. One important plot point (spoiler alert) involves a media personality who uses humor to critique the government. In one episode of his show, he goes a little too far, and the consequence is that his home is raided and he is murdered by state police.
The scene in which the raid and murder takes place is an evocative reminder of the importance of protecting free speech. Set in a fictional dystopian future, this scene is nonetheless familiar to us as viewers because scenes like this have taken place in many pasts, are taking place in some of our presents, and may well take place in all of our futures if we cannot curb our bend toward authoritarianism.
Among a slew of other art pieces depicting dystopia, V for Vendetta instructs us that free speech is the principle that gives us the right to criticize the government, or put forth opposition positions, without being murdered, jailed, disappeared, or otherwise punished or persecuted by said government.
Today in the United States, we enjoy a much more expansive freedom of expression. We are legally protected when making many types of speech, not only from government violence but also from other types of punishment, such as getting fired from a government job. And many institutions (particularly universities) protect our free speech in ways that go beyond the legal requirements, because they have a commitment to the open exchange of ideas in their communities, believing that this will lead to the development of better ideas.
But like other rights, free speech has its limitations. The principle of free speech does not protect you from criminal charges if you cry “fire” in a crowded theater (when said theater is not in fact on fire). It does not protect you when you violate an NDA. It does not protect you when you leak classified information, the release of which endangers people’s lives. And there are a host of other types of speech that are exempted from legal protection.
Private institutions do not have the same legal obligations to respect free speech as government institutions. There may be a moral obligation for private institutions to protect free speech, but even this must have its limits. The principle of free speech should not protect you from getting fired if you are bad at your job.
The reason for these limitations is that speech is an action. Expression is not some special type of activity that has no consequences. Its consequences are what determine its limitations.
And consequences are actually what make it so important in the first place. Those of us with the privilege to live in communities where we are safe have the luxury of abstracting “free speech,” of thinking about it like it’s some sort of divine commandment that should not be questioned or explored. But unlike the principle that says, “don’t murder people,” free speech is not a principle that all human societies have independently articulated as important.
It’s a principle that specific societies developed — and then spread — in response to the ugly consequences of its absence; namely, oppression and state-sanctioned violence. To say it another way, free speech isn’t a first principle: it’s something that can be derived. This doesn’t reduce its importance, but it does mean that when we are faced with particular circumstances, we don’t get to start and end the conversation with an accusation that free speech is being violated.
Instead, we need to ask ourselves certain questions. Do the alleged violators of free speech have power over the alleged victims? Is the alleged suppression of free speech in service of oppression? Is it a ploy to maintain power? Does the alleged suppression of free speech include — or will it lead to — violence?
The right to free speech, like the right of assembly, or the right of religious freedom (all three of which are given some legal protection in this country by the same First Amendment), is a right designed for oppressed people. It assumes the existence of a power dynamic, a vector that gives one person or group the ability to harm another. It offers protection precisely because there are people that need protection. It makes sense in the same way that it makes sense that you can’t fire someone for practicing a religion that’s different from your own, but you are welcome to quit a job because your boss practices a religion that is different from your own.
In most cases where free speech is actually being violated, you’ll find a formal power structure is in place: e.g. a state police force is perpetuating violence against peaceful protestors; or an institution fires an employee providing constructive criticism to their work. Other times the power structure is informal but obvious: e.g. an armed mob threatening physical violence.
There are more subtle ways that free speech can be violated, but it is essential in these cases to address how the alleged violation is harmful and unjust. Without these criteria, free speech devolves into something like this: a principle that allows me, and people like me, to do and say absolutely anything we want without any consequences of any kind; and furthermore that states that any attempts, by institutions, other groups, or even individuals, to influence my words and behavior in any way, is a violation of my free speech and therefore wrong.
I highlighted above some important exceptions to the protection free speech offers from formal consequences (like imprisonment), but the exceptions become the rule when it comes to social consequences. I don’t have the legal or moral right to say anything I want and still retain all of my friendships. If I say offensive things, and people stop liking me as a result of that, invoking “free speech” doesn’t force people to start liking me again.
Children frequently misunderstand this. Most of us have had the experience of a fellow kindergartner responding to requests or demands that they cease a particular stream of verbal abuse with, “It’s a free country.” (As it turns out, kindergartners don’t have a lot of legal rights — and none that will prevent the teacher from sending them into time-out for verbally abusing their classmates.)
None of us has free speech as a social right. I recently wrote something on an email thread with some family members that struck a sour note with my brother. He wrote to me privately to express his concerns. I didn’t defend myself by referencing my right to free speech. It is obvious to me, and would be to other reasonable people, that bringing “free speech” into the conversation would merely have been a way to distract from the issues that my brother was trying to discuss with me.
Often the people who invoke “free speech” are actually reacting negatively to particular examples of informal social control, and conflating this informal social control with the violation of free speech. They aren’t being oppressed, and their voices are not being silenced. They are just upset that other people are trying to tell them how to act and what to say and not say.
Rejecting informal social control outright becomes absurd pretty quickly. Every human society, and many non-human societies, has always had and always will have informal social control. It’s part of the definition of society. It’s also pretty difficult to publicly make an argument against informal social control without participating in it in the very act of challenging it.
This doesn’t mean that it’s unreasonable to fight back against particular manifestations of informal social control. That’s something people constantly do, and it’s part of how society evolves. But it does mean that any argument against an instance of informal social control needs to justify itself with something more substantial than “informal social control is bad.” A good justification, as in the free speech case, will most likely appeal to the harm or injustice caused by the informal social control.
I want to make very explicit two distinctions I have made so far. One is a distinction between your right to free speech, which is morally legitimate and sometimes legally protected, and your right to be free from informal social control, which does not exist morally or legally.
A friend in college trotted out a “free speech” argument against another friend who was wearing a t-shirt that encouraged people to not use the word “retarded” in a derogatory way. This was a misuse of the concept of “free speech.” The shirt served as a reminder to the wearer’s peers that using “retarded” as a derogatory word carries with it unintended negative consequences, but it didn’t impose a punishment on people who ignored its message. Because the wearer wielded no special power over others in the community, the shirt also carried no threat of punishment.
What it did create (or, rather, participate in) was a manifestation of informal social control. It sent the message that the wearer disapproves of the derogatory use of the word “retarded,” and that people who continue to use the word this way will be perceived more negatively by the wearer, because they are violating a shared culture value of sensitivity and respect.
It’s ok to disagree with this, or any other, particular manifestation of informal social control. But it would be difficult to base your disagreement on a general objection to informal social control. In so doing you would be appealing to an ideal that is inconsistent with the very existence of human societies — we have no way of living together without the use of cultural norms to create order. You would also be a hypocrite. (Ironically, my friend who disliked the shirt was, in expressing her disapprobation based on a shared cultural value of free speech, exerting a similar level of informal social control to that of the shirt-wearer.)
The second distinction is between true violations of free speech and legitimately imposed consequences to certain speech acts. In other words, we need to recognize that free speech has, and should have, limitations. The boundary, unsurprisingly, is vague and debatable. But there is no room for productive conversation unless all parties can agree that it exists.
By not explicitly acknowledging the limitations of the right to free speech (both legal and moral), and by conflating exercises in informal social control with violations of free speech, it is easy for a writer to falsely claim that a person or group is opposed to free speech or is directly violating the free speech of others. In a future essay, I will explore how many writers have put forth these false claims about campus race activists.
