Why Free Speech?

Cecilia Capuzzi Simon explores the recent prominence of The Foundation for Individual Rights in Education (FIRE) and its President Greg Lukianoff.

The free-speech watchdog FIRE is a familiar irritant to college administrators, but until this past year, the rest of the country wasn’t paying much attention. An “epic” year is what Greg Lukianoff, president and chief executive of the Foundation for Individual Rights in Education, calls it. Colleges and universities were forced to publicly and painfully deal with a confluence of national issues — race, sexual assault, gay rights, politically correct speech — mirrored and magnified in the microcosm of campus life.
Finally, FIRE’s activism was syncing with the zeitgeist, in part because of Mr. Lukianoff’s role in framing the public interpretation of the campus turmoil. It was Mr. Lukianoff who made the argument, in a widely read opinion piece in The Atlantic, that today’s students are “coddled” and demanding protections against offensive words and ideas at the expense of intellectual rigor and the First Amendment. It was also Mr. Lukianoff who happened to be at Yale during the infamous Halloween costume shout-down of Prof. Nicholas Christakis, and whose viral video of it appeared to vividly illustrate his observations that many college students don’t understand what freedom of speech is, and who it applies to.
Freedom of speech, he said, is not an “intuitive” concept, and Americans take its benefits for granted. “I think everyone understands that they have a free-speech right, but they don’t necessarily understand why you should have one,” he said, sitting in his eighth-floor office in FIRE’s satellite space in Washington…
Most significantly, students are, wittingly or not, becoming vocal opponents of free speech by demanding protections and safe spaces from offensive words and behaviors.
“Something changed,” Mr. Lukianoff said. “I don’t entirely know why.” But he can date the shift: October 2013, at Brown University, when the New York City police commissioner, Raymond Kelly, was invited to speak but was shouted down by students over his support of stop-and-frisk practices.
“I count that as the symbolic beginning because that’s when we noticed an uptick in student press for disinvitations, trigger warnings and microaggression policing,” he said. “That doesn’t mean administrators have stopped doing goofy things, but now they can say, at least more convincingly, that they are being told by students that they need to do those things.”

Why should we have a right to free speech and why is freedom of speech important? Simon does not press Lukianoff on that question. One reason that free speech may be so endangered today is that it is more often invoked as a right rather than justified through argument. Few defenders of free speech do more than state it as a shibboleth and assert its validity as a bedrock of the Bill of Rights. If we are to protect free speech, we need to understand why it is so meaningful.

Title page of the 1644 edition of Areopagitica

The dominant justification is that freedom of speech guarantees a marketplace of ideas that allows the truth to prevail. The origins of this idea are traceable back to John Milton’s Areopagitica, where Milton wrote:

“And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

Milton’s theological tussle between truth and falsehood moved from the battlefield to the marketplace in the 20th century. The beginnings of the new economic idea of free speech are found in Justice Oliver Wendell Holmes Jr.’s famous dissent in the 1919 case of Abrams v. United States. Arguing against the conviction of revolutionary dissenters and anti-war advocates, Holmes invoked the free market:

“The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

The simple idea is that ideas should circulate freely like commodities; just as a free market leads to a growing economy, so too does a free marketplace of ideas lead to truth. If all ideas are given free sway, the true or best ideas will win out.

This metaphorical embrace of the free market of ideas has become dominant in American debates about free speech, especially amongst lawyers. Justice William O. Douglas defended the right of publishers to publish dissenting ideas in United States v. Rumely by arguing, “Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas.” And the metaphor of the marketplace of ideas was taken up again by Justice William Brennan who wrote: “The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”

Ronald K.L. Collins traces the history of the marketplace of ideas metaphor in U.S. law and shows its emerging bi-partisan dominance:

“In the half century or so after Justices Douglas and Brennan used the “marketplace of ideas” metaphor, some 1,000-plus appellate courts have echoed it in published opinions. Indicative of that trend toward judicial acceptance of and reliance on that metaphor, in the last decade alone it has been invoked often by liberals and conservatives alike in Supreme Court opinions involving government speech, campaign contributions, the establishment clause, “true threats,” election law, and in commercial-speech cases, among others.”

The presupposition of the marketplace of ideas metaphor is that the free expression of ideas will lead eventually to truth, as if there were one rational idea toward which humanity might progress. This rationalism is widely held and underlies much contemporary political theory, including Jürgen Habermas’ idea of a rational speech situation that can yield rational and thus decent decisions.

The Marketplace of ideas approach to freedom of speech also supports the campaign finance cases like Citizens United. The premise is that free ideas must circulate and especially so in free elections. “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus,” writes Justice Kennedy in Citizens United, “is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” For Kennedy, “Speech is an essential mechanism of democracy.” In the free marketplace of ideas, the best ideas will win.

That the free expression of ideas will lead to truth is, however, a doubtful proposition. First because it matters who expresses an idea. If the wealthiest, most educated, and most powerful institutions and corporations in the land can spend unlimited amounts of money to influence politicians and populations, the free market in ideas is too easily corrupted. The widespread and bi-partisan disdain for the Citizens United decision and the desire for serious campaign finance reform is evidence that Democrats and Republicans understand that just as the free market requires regulation in the name of justice, so too must free speech be regulated in the service of democracy.

The second reason that free speech is not about truth is that politics, as Hannah Arendt rightly argued, is not about truth. Politics is about opinions. There is never one truth to which politics strives. Instead, politics is the activity of free and equal citizens who together must build a common world, a world in which they can live together amidst their real and important differences. Politics does not aim at truth; it aims, instead, to allow unique and distinct peoples live together as they pursue their particular truths.

Hannah Arendt was a committed defender of the freedom of speech; but Arendt did not believe that free speech is justified because it would lead to the embrace of political truth. In writing about free speech, Arendt offers an alternative justification, one grounded in the importance of plurality: “We know from experience,” Arendt argued, “that no one can adequately grasp the objective world in its full reality all on his own, because the world always shows and reveals itself to him from only one perspective, which corresponds to his standpoint in the world and is determined by it.” For Arendt, the freedom of speech means that we will always hear other opinions, other perspectives, and other arguments than our own. Free speech is the foundation of all expansive and right thinking. “Only in the freedom of our speaking with one another does the world, as that about which we speak, emerge in its objectivity and visibility from all sides.”

The world is not something that can be true or false; it is plural and must be enjoyed and also preserved in that plurality. Freedom of speech is what defends that plurality.

“If someone wants to see and experience the world as it “really” is, he can do so only by understanding it as something that is shared by many people, lies between them, separates them, showing itself differently to each and comprehensible only to the extent that many people can talk about it and exchange their opinions and perspectives with one another, over against one another.”

For Arendt, the freedom to speak one’s opinion is the root of politics and that is why it is important as a civil right, the right to say what one thinks. Free speech is also necessary to prevent the opinions of the majority from uncritical acceptance. And free speech, finally, is also a human right — it is the right to speak and act in ways that are meaningful within a community. If mankind is characterized by the ability to create and live in man-made, meaningful, and lasting artificial communities, the freedom to speak and act in public is the fundamental right that guarantees our humanity. 
What Arendt understands about political truths is that truths do indeed “circulate” in messy and often uncomfortable ways. Political thought, Arendt argues, “is representative.” By that she means that it must sample as many different viewpoints and opinions as is possible. “I form an opinion by considering a given issue from different viewpoints, by making present to my mind the standpoints of those who are absent; that is, I represent them.” It is in hearing, imagining, and representing opposing and discordant views that one comes to test out his or her own views. It is not a matter of empathy, of feeling like someone else. It is rather an imaginative experiment in which I test my views against all comers. In this way, the enlarged mentality of imaginative thinking is the prerequisite for judgment.

When Arendt said of Adolf Eichmann that he was possessed of the “fearsome word-and-thought-defying banality of evil” because he did not think, what she meant was that he was simply incapable or unwilling to think from the perspective of others. His use of clichés was not thoughtlessness itself, but was evidence that he had barricaded himself inside an ideological cage. Above all, his desire to make others including Jews understand his point of view — his hope that they could see that he was a basically good man caught up on the wrong side of history — was for Arendt evidence of his superficiality and his lack of imagination. He simply could not and did not ever allow himself to challenge his own rationalizations and justifications by thinking from the perspective of Jews and his other victims. What allowed Eichmann to so efficiently dispatch millions to their deaths was his inability to think and encounter opinions that were different from his own.

In the internet age we are bombarded with such a diversity of angry and insulting and stupid and offensive viewpoints that it is only natural to alternate between the urge to respond violently and the urge to withdraw. It is easy to deride political opinion and idolize truth. But that is to forget that “seen from the viewpoint of politics, truth has a despotic character.”

Political thinking requires that we resist both the desire to fight opinions with violence and the desire to flee from opinions altogether. Instead, we need to learn to think in and with others whose opinions we often hate. We must find in the melee of divergent and offending opinions the joy that exists in the experience of human plurality. We don’t need to love or agree with those we find offensive; but so long as they are talking instead of fighting, we should respect them and listen to them. Indeed, we should care about them and their beliefs.

In order to care about others with whom we disagree, we must hear them. Free speech is important in that it forces us to listen to divergent and upsetting viewpoints; that is why we should care about free speech and why we should value what FIRE does. And yet FIRE is not free from controversy.

In her essay on FIRE, Simon observes that while FIRE originated in the ACLU and has many liberal credentials, it is increasingly financed and supported by conservative foundations.

“FIRE’s mission has not changed, but interest from conservative groups has. Conservatives, Mr. Silverglate explained, are “seriously squeezed in the academic world” and finding their causes “suddenly coinciding with our agenda.” FIRE receives funding from groups like the Lynde and Harry Bradley Foundation, the Sarah Scaife Foundation and the Charles Koch Institute. (The institute just co-sponsored a reception for a screening of “Can We Take a Joke?,” a new documentary on free speech and comedy that FIRE helped produce.) FIRE bristles at the right-wing tag often applied to them. They say they are a free-speech group, period.”

Many criticize FIRE and argue that its newly found financial support by conservatives has led it to care more about certain violations of speech. For example, its focused attacks on campus speech codes and those who seek to purify campuses of speech that is racist, sexist, homophobic, anti-Semitic, and anti-Islamic is seen as a political attack on minorities, one that threatens to chill speech rather than protect it.

Find our more about Real Talk, our Ninth Annual Fall Conference

The discussion about free speech and speech codes on college campuses will be central the Arendt Center’s October Conference, “Real Talk: Difficult Questions About Race, Sex, and Religion on Campus.” We are excited that Greg Lukianoff is a featured speaker at the conference. Learn more and register for the conference here.

Roger Berkowitz, Academic Director, Hannah Arendt Center for Politics and the Humanities, Bard College

Capuzzi Simon, Cecilia. “Fighting For Free Speech on America’s Campuses” nytimes.com. nytimes.com. 1 August 2016. Web. 1 August 2016.