Is America having second thoughts about free speech?
Is America having second thoughts about free speech?
By Damon Linker February 6, 2018
The free speech wars are getting worse, but it seems that
none of the warring factions quite grasp the character of the dispute — or
precisely what's at stake.
At the figurative center of the clash is the norm of near-absolute
freedom of speech and expression, which its defenders like to treat as the
American default. A number of ideological challenges have arisen in recent
years to overturn this norm.
On many college campuses, groups of left-leaning students
insist that free speech should be conditional on speakers adhering to explicit
standards of diversity and avoiding the infliction of emotional harm on the
members of marginalized groups through the spreading of "hate."
From the opposite ideological direction, President Trump
believes that the government should "take a strong look" at libel
laws to keep news organizations from subjecting his own administration to
negative coverage.
Finally, from the center-left come calls to use
anti-discrimination law to punish organizations that oppose the legitimacy of
same-sex marriage and accommodations for transgender people. If that happens —
either by passing new laws that explicitly add to existing anti-discrimination
statutes or by courts treating the members of these groups as protected classes
covered by existing law — the result will almost certainly be a significant
constriction of speech, as those holding more conservative views will face
sanction for expressing them in public.
Those are the trends — and each one looks to the others
like the onset of democratic decline.
For much of the left, the president's (so far merely
rhetorical) attacks on the freedom of the press is a sign of incipient fascism,
and the complaints of the religious right are at once signs of paranoia and a
form of special pleading for bigots. For the right, the agitation for free
speech restrictions on campus is evidence of burgeoning anti-intellectualism in
a place that should be open to all ideas and arguments, while the possibility
of conservative religious believers facing punishment for their faith is both
profoundly illiberal and a threat to free government in the United States.
As a free speech absolutist myself, I find plenty to be
concerned about in these trends. But it's important to recognize that such
disputes are not new — and that they need not signal the precipitous decline of
liberal democracy in the United States. On the contrary, our clashes over free
speech grow out of tensions within the liberal tradition itself, which in the
past has been quite compatible with substantial restrictions on freedom of
speech.
The reason why such restrictions seem anathema to so many
today is that for the past several decades, one side in a centuries-long
dispute has been ascendant. That's the libertarian position perhaps best
represented by the 19th-century political philosopher John Stuart Mill. This
tradition of thinking, which first came to political and cultural prominence in
the U.S. during the middle decades of the 20th century, holds that when it
comes to freedom of speech, almost anything goes. People should be allowed to
think, write, and say pretty much whatever they want, with the government
setting only the most minimal of limits. In the resulting marketplace of ideas,
the truth will ultimately win out.
But there's another branch of the liberal tradition that
is far less libertarian in its outlook. This one includes none other than the
founder of classical liberalism himself, John Locke, who notoriously denied
that Roman Catholics should be tolerated. It also includes most First Amendment
jurisprudence prior to the mid-20th century, which (in the name of community
standards and a "clear and present danger" to the common good)
permitted extensive restrictions on speech at the state level, along with
fairly broad limits at the federal level as well.
An updated version of the latter view prevails in many of
the liberal countries of Western Europe today. The United Kingdom famously has
much more restrictive libel laws than the U.S., and in many countries on the
continent, it's taken for granted that various forms of "hate
speech," including disparaging comments about Islam as well as political
literature intended to further anti-liberal movements of the far right, deserve
to be banned.
In place of the first view's faith in the free market of
ideas to sort out right from wrong, truth from falsehood, the more
communitarian branch of the liberal tradition presumes a metaphor of illness
and empowers those in positions of authority to contain pernicious ideas
through a kind of public health measure of the mind. As I recently had occasion
to argue, Albert Camus' didactic novel The Plague is an important text for
understanding how postwar liberals came to think of dangerous ideas as a kind
of contagion that requires quarantine in order to be defeated.
What we’re seeing on multiple fronts today is the notable
retreat of the first notion of free speech and simultaneous rise in the popularity
of the second notion. I find that troubling, but not because it represents a
break from the liberal tradition. It's a move, instead, away from the
libertarian tendency to valorize market-oriented thinking and toward an
emphasis on the common dimension of social life.
The problem with such a shift is that the communitarian
approach to speech regulation empowers certain people to make the determination
of which ideas are permissible and which are worthy of restriction. That is and
always will be a political decision. By placing that decision in the hands of
certain people (those holding positions of power) and taking it away from
others (everyone else), the sphere of politics gets constricted. And that, in
turn, runs the risk of driving dissenters outside of the system to do battle
with it from beyond the bounds of the establishment. In such a scenario, the
quarantined ideas don't so much get eradicated as incubate (radicalize)
further, in preparation for the launching of a more virulent assault on the
status quo and the powers that be.
Isn't it far better to encourage bad ideas to come out of
the shadows, where those who espouse them can do battle (and face defeat) in
their name? That's the old liberal case for minimal restrictions on free speech
— a case that will sound compelling so long as people have faith that the bad
ideas, when publicly defended, will lose.
What happens when that faith begins to wane? We're in the
process of finding out.
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