“Free Speech Is Wonderful–Unless You Offend Us and Then You Must Face the Consequences.”
Something I’ve been hearing and seeing a lot recently in journal/news media and social media, on blogs, and in everyday conversations, both in philosophical contexts and non-philosophical contexts, is the claim that “free speech is wonderful, it’s the First Amendment, it’s mom-and-apple-pie, I so totally love it–unless you offend us, and then you must face the consequences.”
For example, Chelsea Clinton recently said in an interview published in The Guardian:
I think one of the big mistakes … was, for so long, we focused on tolerance, which I just think is insufficient…. We have freedom of speech, which I do think is hugely important – and yet people thought you couldn’t dispute hateful things, because they’re like – well, it’s freedom of speech. Well, freedom of speech doesn’t mean there is freedom of consequences.
But what Chelsea Clinton said, and what all those other people have also been same-saying recently, is nothing but coercive moralist bullshit–and in the next section, I’ll explain why.
2. Why “Free Speech Is Wonderful–Unless You Offend Us and Then You Must Face the Consequences” is Nothing But Coercive Moralist Bullshit
Saying that “free speech is wonderful, but you, the person engaging in free speaking or free thinking that offends us, must face the consequences of your free expression” is, essentially, censorship and suppression by means of a coercive moralist threat.
In other words, if the free speaker or free thinker offends “us,” the members of some powerful identity-group, then s/he must also “face the consequences” of punishment by that “us,” by extra-legal or legal means, for example, lynching, imprisonment, being sucker-punched while you’re expressing your opinion, internet name-shaming, doxxing, formal complaints that lead to reprimands or fines, career-destruction by slander, being fired from one’s job, etc., etc.
And that threat, of course, effectively censors and suppresses free speech.
As we all know, “bullshit” is a highly technical term in philosophy that means “inauthentic verbiage or actions, put forward as if authentic, strongly tending to undermine the pursuit of truth and authenticity alike.”[i]
Therefore, starting one’s claim with a paean to Free Speech (as it were, with one’s hand over one’s heart, The Star Spangled Banner playing stirringly at low volume, and the US flag flapping slowly in the background), and following it up with “unless you offend us, and then you must face the consequences,” is nothing but coercive moralist bullshit.
Moreover, the very same coercive moralists who so effectively threaten the free-speaker or free-thinker by telling them that s/he must “face the consequences” of her/his offensive speech or thinking, and then, whenever an especially brave or foolhardy free- speaker or free-thinker persists in exercising the “wonderful” right of free expression, proceed to carry out the punishment, will almost always claim that it is precisely they who are engaging in morally and politically legitimate free expression by doing so.
And that’s nothing but coercive moralist bullshit on stilts.
3. Free Speech and Emancipatory Speech
Now, of course, I’m under a rational obligation to say what I think free speech really is, and also to justify my view.
Free speech is the liberty of unfettered expression in opinion, thought, and lifestyle, hence the liberty to engage in what John Stuart Mill called “experiments of living,”[ii] aka experiments in living, and above all the liberty to express edgy, challenging beliefs and ideas by means of talk, writing, or any other communicative medium. Free speech has many important values, including scientific truth, aesthetic beauty, profound artistic or philosophical insight, and authentic self-realization — and their pursuit. But the highest value of free speech is manifest when we exercise the liberty to engage in peaceful criticism of and protests against violations of respect for human dignity and human oppression, and in peaceful resistance against immoral uses of power. This morally and politically exemplary kind of free speech is not merely “speaking truth to power,” because, over and above truth per se, it is also ethically-driven and peacefully rebellious. It is, therefore, emancipatory speech.
Over and above the coercive moralist bullshit approach to free speech that I’ve been criticizing, there are three other serious contemporary problems about free speech.
The first problem is that by virtue of his Presidential Oath of Office, which he took on 20 January 2017, Donald Trump was required to “preserve, protect and defend the Constitution of the United States”; and the First Amendment to the US Constitution says that “Congress shall make no law … abridging the freedom of speech, or of the press”; yet Trump tweeted this on 17 February 2017:
The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!
In other words, Trump spoke out publicly, in his role as President, against the freedom of the press, thereby explicitly violating his Oath of Office. This is nothing short of stupefying.
The second serious problem is that, following in Trump’s faulty footsteps, others have also begun to restrict and suppress freedom of speech. Not long after Trump’s stupefying Oath-of-Office-violating tweet, Tom Miles, a journalist for Reuters, wrote this:
Nineteen U.S. states have introduced bills that would curb freedom of expression and the right to protest since Donald Trump’s election as president, an “alarming and undemocratic” trend, U.N. human rights investigators said on Thursday.
Concerns for free speech in the United States have risen in part because of the Republican Trump’s antagonistic relations with prominent U.S. media, which he has branded “the enemy of the American people” as it has reported on policy missteps and dysfunction in his administration.
The push for stricter laws on expression has come as Trump’s liberal foes have pursued public protest against his policies on issues ranging from immigration to abortion and climate change.
Maina Kiai and David Kaye, independent U.N. experts on freedom of peaceful assembly and expression respectively, said in a statement that the state bills were incompatible with international human rights law.
“The trend also threatens to jeopardize one of the United States’ constitutional pillars: free speech,” they said in a statement, calling for action to reverse such legislation.
“From the Black Lives Matter movement, to the environmental and Native American movements in opposition to the Dakota Access oil pipeline, and the Women’s Marches, individuals and organizations across (American) society have mobilized in peaceful protests,” Kiai and Kaye said.
They said it was their fundamental right to do so, but that bills in Republican-governed states like Indiana, Arkansas, Florida, Georgia, Indiana, Iowa, Michigan and Missouri sought to stop them exercising that right.[iii]
But the third and perhaps most serious problem is that, clearly, neither Trump nor his followers—not to mention many, or perhaps even most, other people in the USA and other big-capitalist (neo)liberal democratic States—seem to be able to tell us either what rationally justifies free speech or what the moral and political limits of free speech really are.
What rationally justifies free speech? In On Liberty, chapter II, Mill famously attempts to provide an adequate justification of free speech on Utilitarian grounds. But Mill’s attempt fails, since it is always possible that the greatest happiness of the greatest number of people, relative to that historical context and relative to what we are capable of doing by way of action in that context, will consist, precisely, in our collectively restricting and suppressing free speech. Mill tries to finesse this problem by re-defining the concept of utility:
I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being.[iv]
Nevertheless, Mill’s “utility in the largest sense, grounded on the permanent interests of man as a progressive being” is nothing like the concept of utility as he defines it in Utilitarianism:
The creed which accepts as the foundations of morals “utility” or the “greatest happiness principle” holds that actions are right in proportion as they tend to promote happiness; wrong as they tend to produce the reverse of happiness. By happiness [i.e., utility] is intended pleasure and the absence of pain; by unhappiness [i.e., disutility], pain and the privation of pleasure…. [P]leasure and freedom from pain are the only things desirable as ends; and … all desirable things … are desirable either for pleasure inherent in themselves or as means to the promotion of pleasure and the prevention of pain.[v]
Now it is of course possible to refine the Utilitarian concept of “happiness” or “utility” by defining it in terms of preference-satisfaction, or whatever.
But no matter how the concept of utility is refined, when it is understood in terms of the greatest happiness principle, it always picks out a certain class of “felicific” or happiness-making consequences for as many people as possible, relative to that agent-centered historical context. That being so, then the Utilitarian concept of utility has nothing inherently to do either with any person’s “permanent”—that is, innate, universal, unconditional—interests or with any person’s nature as a “progressive being,” which is necessarily underdetermined by, although still consistent with, her actual or possible happiness: namely, a person’s nature as an absolute source of human dignity and as an autonomous moral and political agent, inherently capable of “enlightenment” in the sense classically formulated by Kant in “What Is Enlightenment?,” namely, one who “dares to be wise” (Sapere aude!), that is, one who dares to think and act for herself/himself.
Another standard attempt to justify free speech can be discerned in the U.N. experts’ reference to “one of the United States’ constitutional pillars: free speech,” quoted in Miles’s Reuters article. This is turn implies the thesis that the very idea of a modern big-capitalist (neo)liberal democracy, as per the USA, essentially requires free speech. So, according to this line of reasoning, free speech is rationally justified by the very idea of a modern big-capitalist (neo)liberal democracy. But this in turn raises the question: what is democracy?
In fact, there are at least three different concepts of democracy at play in modern big-capitalist (neo)liberal democratic States:
(i) democracy as the rule of the majority of all the people qualified to vote,
(ii) democracy as the open process of critical discussion and critical examination of opinions and social institutions, and, simultaneously, the unfettered expression of different opinions and lifestyles, and
(iii) democracy as the unwavering commitments to universal respect for human dignity and autonomy, and universal resistance to human oppression.
Notice, particularly, that the fact or phenomenon of free speech initially shows up under the second concept of democracy. Notoriously, however, the three concepts of democracy are mutually logically independent, in that they do not necessarily lead to or follow from one another.
It is really possible that what is decreed by the majority of all the people qualified to vote is in fact morally evil and wrong, aka the problem of the tyranny of the majority—and that is exactly what happened when the Nazis were democratically elected by the German people in 1932–1933.[vi]
It is also really possible that what is decreed by the majority of the people qualified to vote is a system in which a powerful minority of those people can actually over-ride the majority, aka the problem of the tyranny of the minority—and that is exactly what happens whenever the US Electoral College votes to elect someone, like Trump in 2016, who did not actually win the popular vote.
And finally, it is also really possible that there could be an open process of critical discussion and critical examination of opinions and social institutions, and simultaneously the unfettered expression of different lifestyles and opinions, which nevertheless leads to a situation in which universal respect for human dignity and autonomy, and universal resistance against human oppression, are in fact undermined and weakened, aka the problem of an unconstrained, value-neutral process—and that is exactly what happened in the case of Trump’s election, via the multiple-Party system, the Primaries, and psychologically-manipulative uses of social media and the internet.[vii]
Therefore, the only morally and politically acceptable concept of democracy is the third concept: democracy as the unwavering commitments to universal respect for human dignity and autonomy, and universal resistance to human oppression. This in turn entails that free speech, even though it initially shows up under the second concept of democracy, is in fact adequately justified only under the third concept of democracy. And that in turn entails that the only adequate justification of free speech is robustly non-consequentialist and broadly Kantian.
Correspondingly, from a robustly non-consequentialist and broadly Kantian point of view, the only moral and political limits of free speech are:
(i) incitement to or triggering of violence,
(ii) slander (that is, malicious, false or at best half-true, and injurious speech) about individuals, and
In other words, the only moral and political limits of free speech are the very things that give free speech its highest value when we use it peacefully to criticize them, protest against them, and resist them, by means of emancipatory speech:
(i) violations of respect for human dignity,
(ii) human oppression, and
(iii) immoral uses of power.
This means that merely being offended by someone else’s speech is not a moral or political limitation on their free speech. Thus profane or scatalogical speech, erotic or otherwise sexual speech, shockingly religious or shockingly anti-religious speech, “politically incorrect” speech of any kind, politically subversive speech, and emancipatory speech of all kinds, are all fully morally and politically permissible, provided that this speech does not include incitement to or triggering of violence, slander about individuals, or coercion.
Moreover, as the highest kind of free speech, emancipatory speech even transcends democracy, if democracy is taken according to its first concept, the rule of the majority of all the people qualified to vote. That is because the majority of all people qualified to vote, by means of their government, can collectively rule to restrict and suppress free speech, especially emancipatory speech. But if emancipatory speech transcends the governmental rule of the majority of all the people qualified to vote, then since the concept of the coercive social power of the vote-qualified majority of the people falls directly under the wider concept of the coercive social power of all or some of the people, including one person only, which are the limiting cases of “rule by the people,” then emancipatory speech also implicitly transcends the rule of any human government, and directly implies philosophical and political social anarchism.
[i] See, for example, H. Frankfurt, “On Bullshit,” in H. Frankfurt, On the Importance of What We Care About (Cambridge: Cambridge Univ. Press, 1988), pp. 117-133. Also available online at URL = <http://www.stoa.org.uk/topics/bullshit/pdf/on-bullshit.pdf>.
[ii] J.S. Mill, On Liberty (Indianapolis, IN: Hackett, 1978), ch. III, p. 54.
[iii] T. Miles, “U.N. Experts See ‘Alarming’ U.S. Trend Against Free Speech, Protest,” Reuters (30 March 2017), available online at URL = <http://www.reuters.com/article/us-usa-rights-un-idUSKBN1712SG>.
[iv] Mill, On Liberty, Introduction, p. 10.
[v] J.S. Mill, Utilitarianism (Indianapolis, IN: Hackett, 1979), ch. II, p. 7.
[vi] See, e.g., Wikipedia, “German Federal Election, March 1933,” available online at URL = <https://en.wikipedia.org/wiki/German_federal_election,_March_1933>.
[vii] See, e.g., B. Schreckinger, “Inside Trump’s ‘Cyborg’ Twitter Army,” Politico (30 September 2016), available online at URL = < http://www.politico.com/story/2016/09/donald-trump-twitter-army-228923>; and Y. Benkler et al., “Study: Breitbart-Led Right-Wing Media Ecosystem Altered Broader Media Agenda,” Columbia Journalism Review (3 March 2017), available online at URL = <http://www.cjr.org/analysis/breitbart-media-trump-harvard-study.php>.