Notes on free speech

November 1, 2018

The debate on free speech at the moment seems pretty unproductive, with industrial quantities of right wing outrage directed at phenomena as varied as blasphemy laws, student no platforming of campus speakers, social media terms of use, identity politics, political correctness, internet trolls and abuse, left wing editorial decisions, and people being rude about things they dislike on twitter, all criticised under the banner of ‘defence of free speech’.  The left tends, in general, to be unimpressed with this ‘defence of free speech’ discourse, in part because of the understandable suspicion that it is a discursive tool that will in practice be used to promote right wing political opinion and the speech of the privileged, while attacking left wing political opinion and the speech of the more marginalised.  Nevertheless, I’m increasingly strongly of the opinion that left reluctance to defend free speech in general is an error both of principle and of tactics: in my view a credible case can be made that the left generally benefits from broad free speech protections; that even if it didn’t such protections would be good in themselves; and moreover that it’s just a bad tactical idea to allow the right to own this issue.

I don’t really feel competent to wade into the trenches on these debates – but as is my habit, I do at least want to have a go at producing a preliminary and under-informed typology, plus some general remarks.  So, here are some broad categories of constraints on free speech, with some unorganised remarks attached.

  • Legal restrictions on speech. These come in a lot of forms: restrictions of political speech; on incitement to violence; on threats; on hate speech; on offensive speech; on blasphemy; on libel; and others.  I think almost everyone agrees that it’s appropriate for various forms of incitement to violence to be illegal; there’s a fairly widespread view that libel is a legitimate legal category, even if there are a lot of disagreements about how broad libel laws should be; but there’s a lot of disagreement about what other forms of speech should be legally restricted.  I don’t feel I have any very nailed down opinions here – but I do think that the left is being altogether too sanguine about state powers to restrict speech.  In general the left is rightly suspicious of police powers, and doesn’t take very seriously reassurances that those powers will be used wisely and well.  I don’t really understand why this scepticism is not more broadly applied when it comes to the policing of speech.
  • Platform restrictions on speech.  Sometimes you’ll see people argue that the only real issue with respect to free speech constraints is legal constraints (see this well known XKCD comic strip, for example), but I don’t think this is right.  If major platforms refuse to host specific forms of speech, then this is a meaningful and substantial constraint on people’s ability to engage in that category of speech.  Here, again, I think the left is being altogether too sanguine about the idea that vast private corporations should exercise much greater censorship over the forms of speech that they host.  Why should we trust Facebook, or Twitter, or WordPress, or whatever company, to decide which categories of speech it is acceptable to publish?  It’s not at all clear to me that we should.
  • Employer sanctioning of speech.  One of the various ways in which the exercise of free speech has real world consequences is people getting fired for speech.  Sometimes this is appropriate – if a person is employed as a prominent public representative of a company, say, it may be one of the conditions of employment that they comport themselves in a certain way in the public sphere.  Similarly, in their internal interactions within the company they may be held by their employer to certain standards of professionalism; etc.  Nevertheless, in general I think it’s an important workplace right that employers are not entitled to fire employees on the basis of not liking what employees do in their lives outside their professional role, and there should be significant workplace protections on what employers are entitled to ask employees to do, or not do, within their role as well.  Again, I think the left is often being too sanguine about defending workplace rights in this area – and in general I think a significant portion of the ‘free speech’ debate could usefully be reconceptualised as a workplace rights debate.  (This applies to many of the debates over ‘academic freedom’, for example, a category which sometimes seems to imply that academics are uniquely entitled not to be fired for expressing political opinions in the public sphere, which doesn’t seem like an idea the left should be supporting.)
  • Editorial decisions.  A surprising amount of the free speech debate orbits around editorial decisions by publications.  It seems like a safe principle that editors do not have an obligation to publish any given content on free speech grounds – an editorial line is an editorial line, and publications have the right to adopt whatever editorial line they want (again with constraints around incitement to violence, etc.)  Nevertheless, there is a point here, in the sense that publications are a platform, and if certain categories of speech systematically cannot find a platform that has implications for the shape of our public sphere.  This issue may not always be best discussed under the heading of ‘free speech’, but it is an important issue that merits serious discussion.
  • Social sanctioning of speech.  Finally, quite a bit of the debate around free speech revolves around the issue of informal social sanctions.  It’s common to see the argument that if people in the public sphere express strong disapproval of an opinion, publication, or individual this may lead to a ‘chilling effect’ on speech.  This argument is often greatly overstated – expressing strong disapproval of opinions and individuals is, typically, part of the free speech defenders of free speech should aim to defend, rather than a threat to it.  Nevertheless, there is again a point here: informal social sanctioning does sanction – that’s why we do it.  The more intense and widespread the sanctions, the more they disincentivise the speech they aim to sanction.  So social sanctions do have an impact on the shape of our public sphere, and it’s not silly to want to debate or assess that impact.

Ok – those are some categories of constraint on speech, and some thoughts connected to them.  Now for a few more general remarks.

First up, I think it’s worth seeing constraints on freedom as a spectrum, where the sanction for an action varies in degree.  If you’re going to be arrested and imprisoned for something, that is a very substantial constraint or disincentive, and it seems clearly and entirely legitimate to call that a constraint on freedom.  If you’re going to be politely criticised for something, that is a social sanction and therefore a disincentive, but it doesn’t seem a disincentive substantial enough to call a meaningful constraint on freedom.  But there is a spectrum here, and the point at which responses to speech shift from “disincentives within a space of freedom” to “actual constraints on freedom” is muddy.  (This point obviously applies to all kinds of actions, not just to speech.)

Second, free speech is a formal value, but like all formal values the interpretation of its content necessarily and constantly draws on non-formal but rather substantive judgement.  This is one of the reasons the debate over free speech (and formal liberal values in general) is so controversial – different people impute very different substantive content to the same formal principles.  It seems like a general issue of liberalism that formal liberal values can be ‘filled in’ in a huge number of different ways by different people – and that those substantive commitments fall along lines of ideology and interest.  This is one of the reasons I’m so keen on Charles Mills’ analysis of different kinds of liberalism – the idea that liberalism ‘as such’ is not the problem, but rather liberalism the substantive categories of which are in large part determined by racism, sexism, class domination, etc., allows us to more easily see how liberal principles are compatible with radical politics (as I believe they are).

So I think we need a double commitment in these debates over liberal principles like free speech: on the one hand, we need to understand that formal principles aren’t `innocent’, but are to a very substantial extent determined in their application by the substantive commitments of those doing the implementing.  On the other hand, we need to also understand that this fact does not evacuate formal principles of their value or meaning as formal principles.  It’s not the case (contra some on the left) that liberal principles are nothing more than a mask for the substantive commitments – of ideology or interest – that shape them.

My worry with the free speech debate, then, is that it’s one of a range of areas in which the left is overweighting the ‘substantive’ dimension of the debate, and underweighting the ‘formal’ one.  Yes, many of the most prominent current arguments in defence of free speech are transparently bad faith efforts to push a particular political line or defend a specific set of interests, and shouldn’t be taken seriously – but we also shouldn’t generalise from that to the idea that ‘free speech’ in general is nothing more than an ideological mask for political interests.  The left gains from broad commitments to free speech too.  I think we’re in danger of the left endorsing – or indeed pushing for – the broad legitimation of substantial free speech constraints, in part as a response to bad faith right wing ‘weaponisation’ of free speech discourse, in a way that will near-inevitably rebound on the left itself, as left wing speech – and the speech of the marginalised – bears the brunt of new, more substantial censorship regimes.

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