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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