Free Speech 101



Political trends are like the wind—at your back one day, in your face the next, and utterly fickle. Regardless of your politics, those winds are going to be against you sooner or later, so you had better know your rights and, no less important, know something about their philosophical underpinnings. The time may be right for a refresher on free speech. The threats to it today are many, but especially insidious are the many social and political trends that societies like ours continually generate, and whether such trends issue from the right or the left doesn’t really matter. In a democracy no right is more fundamental than free speech. The only time we need to assert this right is when we have something to say that someone else doesn’t want to hear and that maybe goes against the current of the times. Some of these statements may well be objectionable or false, but the point is not about the content of such speech but the right itself. What is the basis of free speech?

I can’t do much better on this issue than to go back to John Stuart Mill and his classic argument in On Liberty, which he published in 1859. Mill was a liberal who leaned increasingly to the left in his later years, but whether you lean left or right doesn’t matter from the point of view of his argument; the argument can be defended by people on either side of this divide. Chapter 2 of that text was titled “Of the Liberty of Thought and Discussion,” and it’s probably the most important chapter of this short book. It comprises over a third of the book and is twice the length as the chapters on individuality and the limits of state power—so this was an important matter for Mill. There are additional arguments for free speech that one could offer, but in spite of the fact that Mill outlined his over a century and a half ago I don’t think it has been much improved upon. Free speech 101 begins with Mill.

Why, Mill asked, do we value free speech at all? Most of us, regardless of our political persuasion, expect governments not to try to force or manipulate us into believing something, a particular religion for example—that is, unless the government and the majority hold identical views. We tend to object far less when the state tries to mandate an idea that most of us already accept. Mill thought that we should object whenever the state attempts to coerce any person into believing this or that, and regardless of whether a majority approves of this or not. A violation of free speech and free thought is always unjust, whether it’s approved by public opinion or not. Why? He provided several arguments for this.

First, Mill pointed out that we can never be certain that the idea or expression of whatever kind that we’re trying to suppress is false. Why is that? Because those who are trying to suppress this idea—whether it’s the government, a majority, or a minority—are neither omniscient nor infallible. “All silencing of discussion,” as Mill expressed this important point, “is an assumption of infallibility.” Governments, after all, are made up of politicians, who are the opposite of infallible. Nor is public opinion infallible. Any new idea, whether it’s true or false, starts out as a minority view. Public opinion is almost always against it in the beginning. It takes time for a new idea to gain a hearing, and to become accepted as true. It has to compete against other ideas, and gradually win people over. When an idea is known to be true, Mill asked, what good comes from forbidding it to be debated or challenged? His answer is none; it’s only by being freely debated, which includes standing up to criticism, that true ideas become established as true. The only way we can have confidence in any of our ideas is precisely by challenging them and seeing whether they can withstand it.

Suppose next that we could be certain that a particular view or idea was false. Could we suppress it then? Mill’s answer was again no for the reason that we still benefit from having our ideas challenged. If our minds are not open to these challenges, our thinking deteriorates into an unthinking dogmatism. It’s also paternalistic to decide for others what they must think, and any such paternalism undermines our rationality. If we’re all rational beings, we need to be free to use our reason freely and to decide not only what minor opinions we will hold but our more important ideas as well—about morality, politics, religion, or whatever it is. It’s important that each one of us freely decide what we will believe regarding the fundamental questions that orient our lives.

His next argument is that we should never assume that true or reasonable ideas will always win out over suppression. People are not, as he put it, “more zealous for truth than they often are for error,” so zeal or confidence in a belief is very far from being a guarantee of its truth. There’s no shortage of zealous people in the world, in Mill’s time or ours, whose beliefs are false and even dangerous, and if we look at the historical record we find it’s just as common for true ideas to be suppressed as false ones. Mill pointed to the example of Socrates, but we could add many other instances of innovative thinkers being persecuted in their time. We shouldn’t assume that what passes for knowledge today will stand up tomorrow. Someone may come up with a different idea and often does. More than this, it’s more than possible that we—whoever we are and whatever we believe—may be not just mistaken about this or that belief but fundamentally wrong in our view of the world. In the case of religious beliefs, Mill pointed out that while historically ideas that are deemed “heretical” have usually been suppressed, this not only undermines the freedom of any intellectual nonconformist but has an important chilling effect on all others who are now afraid to think and to speak at all. Fear of persecution, or today of the sort of character assassination that we see in the news more or less daily, can be a powerful deterrent against saying anything at all. “No one,” as Mill put it, “can be a great thinker [or a mediocre one for that matter] who does not recognize, that as a thinker it is his first duty to follow his intellect to whatever conclusions it may lead. Truth gains more even by the errors of one who, with due study and preparation, thinks for himself, than by the true opinion of those who only hold them because they do not suffer themselves to think.”

Mill’s next argument, I think, may be the most important one for our time. What matters regarding our beliefs, he said, is not only whether they are true or false, but the manner in which we hold them. The attitude that each of us has toward our own convictions is very important, even assuming them to be true. It’s important to recognize our fallibility and not become dogmatic or doctrinaire. Dogmatism is never justified because the human mind is fallible. Even our truths can have a tendency to become what he called “dead dogma” and false absolutes, and when this happens our knowledge no longer inspires us or influences how we live. Any such truths don’t enter into our imagination or our actions and instead become a lifeless creed or a party line that we’re all expected to conform to. This happens whenever we close our minds to ideas that we disagree with, and it’s an attitude, he thought, that most of us hold. We must know not only what ideas are true, but what their intellectual grounds are, and here no certainty is possible.

His last argument is that even our true ideas are very unlikely to constitute the whole truth. Even very good ideas tend to be incomplete and one-sided, and it’s not uncommon for false ideas to contain some grain of truth, however small. It’s not at all unusual for the truth—or the whole truth—to be shared between conflicting ideas. Knowledge doesn’t typically arise by advancing along a straight line from ignorance to certainty but by combining different, even opposite, ideas into some novel configuration. The history of knowledge in probably any field bears this out.

Like all rights, freedom of speech has limits, and for Mill what should limit it is the rather minimal condition that what you say doesn’t harm someone, and where harm means to violate their rights. Slander, libel, and shouting fire in a crowded theater are ruled out; insulting someone or damaging their feelings is not. If we opted for a stronger condition, we would not be living in a free society. Mill’s conclusion was that “If the teachers of mankind are to be cognizant of all that they ought to know, everything must be free to be written and published without restraint,” and it’s a view that we would do well to be reminded of. No right is perfectly secure in any nation at any time, and this one certainly isn’t. Today’s threats to it are different from yesterday’s, but they are always with us. Historian Evelyn Beatrice Hall is the author of the classic line, “I disapprove of what you say, but I will defend to the death your right to say it.” She was attributing the sentiment to Voltaire, but the words were her own, and you don’t have to be an admirer of Voltaire or Mill to see the importance of this. This value cuts across many of the divisions of politics and culture that today look like widening ravines.

There’s a price we must pay if we want to live in a relatively free society, and part of it is that we are going to see and hear things that we disapprove of, sometimes vehemently. Hate speech, bombast, nonsense—the internet has become a natural home for this garbage. Is it possible, as so many wish, simply to ban it all, or outlaw particular forms of it that we find offensive? Tempting as this is, it’s impossible for governments to design a legislative net that, like a good fishing net, would effectively catch everything we would want to catch while letting everything else go. It would need to catch all those expressions that, by some democratic measure, are morally intolerable without also catching expressions that we (whoever we are) disapprove of but should not outlaw, either because such expressions have some redeemable qualities or because of the kind of considerations that Mill spoke of. Good legislation carefully separates one from the other, and in the case of speech acts that go much beyond slander, libel, and shouting fire in a crowded theater, this is extraordinarily difficult and probably impossible to accomplish. It can and often has been done badly. It can’t be done well.

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