Assertion: Free speech was created under the false notion that words and violence are distinct, but we now know that certain speech is more akin to violence.
Answer: Speech equals violence isn’t a new idea. It’s a very old—and very bad—idea.
On campus, I often run into people—not only students, but professors—who seem to think they’re the first to notice that the speech/violence distinction is a social construct. They conclude that this means it’s an arbitrary distinction—and that, since it’s arbitrary, the line can be put where they please. (Conveniently, they draw the line based on their personal views: if it’s speech that they happen to hate, then it just might be violence.)
Ironically, the whole point of freedom of speech, from its beginning, has been to enable people to sort things out without resorting to violence.
Assertion: Free speech rests on the faulty notion that words are harmless.
Answer: No, it doesn’t. If free speech was not powerful there would be no need either to protect it OR to ban it. It’s not surprising that free speech can be harsh, since it’s meant as a replacement for actual violence!
Historically, freedom of speech has been justified as part of a system for resolving disputes without resort to actual violence. Acceptance of freedom of speech is a way to live with genuine conflict among points of view (which has always existed) without resorting to coercive force.
Assertion: Free speech is the tool of the powerful, not the powerless.
Answer: The powerful do well under virtually any system of government. They’re not the ones who need freedom of speech. Its purpose is precisely to protect minority opinions and those who are unpopular with powerful people.
For most of history, the rich and powerful were protected by their wealth and power. Then, when democracies first emerged, the majority set the laws, and, because of that, their majority positions were protected by law. You only need a separate concept of freedom of speech or a law like the First Amendment to protect people, ideas and arguments that are not already otherwise protected by the right to vote or some other power.
The ones who enforce the rules, are, by definition, powerful. In a country with strong protections for freedom of speech, the powerful are barred from using the legal system to attack the powerless for their speech. If you empower the government to censor, you are giving the powerful more power.
Assertion: The right to free speech means the government can’t arrest you for what you say; it still leaves other people free to kick you out.
Answer: No, the popular xkcd cartoon below is wrong. The First Amendment limits what the government can do, but freedom of speech is something much bigger than that.
This cartoon is often used to dismiss free speech arguments, but it is wrong: it not only confuses First Amendment law with freedom of speech, it doesn’t even get the First Amendment right.
The concept of freedom of speech is a bigger, older and more expansive idea than its particular application in the First Amendment. A belief in the importance of freedom of speech is what inspired the First Amendment; it’s what gave the First Amendment meaning, and what sustains it in the law. But a strong cultural commitment to freedom of speech is what maintains its practice in our institutions—from higher education, to reality TV, to pluralistic democracy itself. Freedom of speech includes small l liberal values that were once expressed in common American idioms like to each his own, everyone’s entitled to their opinion and it’s a free country. These cultural values appear in legal opinions too; as Justice Robert H. Jackson noted in West Virginia State Board of Education v. Barnette, “Compulsory unification of opinion achieves only the unanimity of the graveyard.”
While the United States Constitution limits only governmental behaviour on its face, its application sometimes requires the government to protect you from being censored by other citizens. For example, the government has a duty to protect you from being attacked by a hostile mob that doesn’t like your ideas or having your public speech disrupted by a heckler’s veto.
The First Amendment also bars government officials from punishing your speech in many ways that don’t rise to the level of arresting you. To give just one example, since administrators at state colleges are government actors, they can’t tear your flyer from a public message board because they don’t like what it says.
A belief in free speech means you should be slow to label someone as utterly dismissible for their opinions. Of course you can kick an asshole out of your own house, but that’s very different from kicking a person out of an open society or a public forum. The xkcd cartoon is often used to let people off the hook from practicing the small d democratic value of listening.
Assertion: But you can’t shout fire! in a crowded theatre.
Answer: Anyone who says “you can’t shout fire! in a crowded theatre” is showing that they don’t know much about the principles of free speech, or free speech law—or history.
This old canard, a favourite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations. People have been using this cliché as if it had some legal meaning, while First Amendment lawyers roll their eyes and point out that it is, in fact, as Alan Dershowitz puts it, “a caricature of logical argumentation.” Ken White has already penned a brilliant and thorough takedown of this misconception. Please read it before proclaiming that your least favourite language is analogous to shouting fire in a crowded theatre.
The phrase is a misquotation of an analogy made in 1919 Supreme Court opinion that upheld the imprisonment of three people—a newspaper editor, a pamphlet publisher and a public speaker—who argued that military conscription was wrong. The court said that anti-war speech in wartime is like “falsely shouting fire in a theatre and causing a panic,” and it justified the ban with a dubious analogy to the longstanding principle that the First Amendment doesn’t protect speech that incites people to physical violence. But the Supreme Court abandoned the logic of that case more than 50 years ago. That this trope originated as a justification for what has long since been deemed unconstitutional censorship reveals how useless it is as a measure of the limitations of rights. And yet, the crowded theatre cliché endures, as if it were some venerable legal principle.
Oh, and notice that the court’s objection was only to “falsely shouting fire!”: if there is, in fact, a fire in a crowded theatre, please let everyone know.
Assertion: The arguments for freedom of speech are outdated.
Answer: John Stuart Mill’s central arguments in On Liberty remain undefeated, including one of his strongest arguments in favour of freedom of speech—Mill’s trident—of which I have never heard a persuasive refutation.
Mill’s trident holds that, for any given belief, there are three options:
- You are wrong, in which case freedom of speech is essential to allow people to correct you.
- You are partially correct, in which case you need free speech and contrary viewpoints to help you get a more precise understanding of what the truth really is.
- You are 100% correct. In this unlikely event, you still need people to argue with you, to try to contradict you, and to try to prove you wrong. Why? Because if you never have to defend your points of view, there is a very good chance you don’t really understand them, and that you hold them the same way you would hold a prejudice or superstition. It’s only through arguing with contrary viewpoints that you come to understand why what you believe is true.
Assertion: Hate speech laws are important for reducing intolerance, even if there may be some examples of abuse.
Answer: Since the widespread passage of hate speech codes in Europe, religious and ethnic intolerance there has gone up. During the same period, ethnic and religious tolerance has improved in the United States.
At least a dozen Western European countries have hate speech laws, many of which run counter to their legal or historical commitments to free speech. But even though those laws have been on the books for years, by most measures Western Europe is less tolerant than the United States.