Free Speech In America: Do We Have It? Do We Want It?

America's most distinctive freedom -- and the one in which we take perhaps the most intense pride -- is surely our commitment to free speech, and all it entails: freedom of the press, freedom of assembly and worship, and of course, the freedom to voice our opinions without fear of censorship and persecution. Even in other Anglo nations, like the United Kingdom and Canada, and certainly in continental Europe, people are routinely fined, censored, barred from entry, or even jailed for voicing offensive opinions. In America, our commitment to free speech under the law is so broad that the highest court in the land has held that the highest law in the land mandates that we allow psychotic cult members to protest the funerals of soldiers. 

Our commitment is certainly not absolute. As Guillaume suggested in his recent piece, free speech can never be only a legal principle if it is to exist substantively, and the recent trend toward social media-driven mob justice toward getting people fired or silenced for offensive words or actions, real or perceived -- whether it's the trans L'Oreal model who made nasty remarks about white people, the Google employee who deviated from progressive orthodoxy about feminism, or football players silently kneeling in protest -- reflects our troubling hyper-polarized, hyper-politicized cultural environment. Some of these people are more sympathetic than others, and some of their words and actions are offensive or at least questionable. But if we consider ourselves a pluralistic, democratic society committed to free and open speech, we must have tolerance for the fact that we are regularly going to encounter people who disagree with us -- even strongly, and even offensively. Getting someone fired is a very serious offense; it is not a casual punishment. If we allow mob justice to reign and firing to be a first resort, people will simply become afraid to voice their opinions and will simply conform to whatever the amorphous blob of public opinion shapes itself into that month.

Activists will usually scoff at the idea that their side is in the wrong: is the world really worse off if Roseanne doesn't get to make racist 'jokes' with impunity? Is it really such a bad thing if Kathy Griffin doesn't get to hold up the bloodied, severed head of the president without a backlash? And why is it such a great thing about our country that the Westboro Baptist Church can protest the funerals of soldiers, anyway?

I don't deny that there is a line, and that sometimes people will cross it. Some of the cases I listed above might even be good examples of where to draw the line. But I am inclined to think that censure ought to come first, and that only repeated, egregious incidents ought to warrant firing, or expulsion from public life. We live in an overheated political and cultural environment, passions are running high, social media gives people a false sense of insulation and even anonymity, and nobody is so perfect that they have not posted or published or engaged in something foolish that they have come to regret. An open society is one that has to deal in second, even third or fourth, chances. In order for this to take place, businesses must stop overreacting to angry, unrepresentative mobs on social media. It is the same instant-reaction mentality driving the awful incentives behind quarterly capitalism. We must learn to think again in the big-picture, and for the long-term. Partisans must also stop engaging in tit-for-tat; we have to have enough people who can stand up and declare that upholding these principles is more important than getting revenge on the other side.

We believe in free speech for two major reasons, one positive and one negative. The positive reason is that individuals need to be able to explore life's questions, options, and mysteries for themselves if they are to truly flourish; conformity might bring more comfort and stability, but at the cost of a sort of lowliness and lack of adventure. America is full of peculiar and niche writers, thinkers, and ideologues of the sort hardly found in Europe -- for better and for worse -- and this diversity of thought is found in nearly every area of life. The negative reason is that we simply do not trust anyone with the power to censor; we might be better off if some great Socrates came along and offered himself to us as philosopher-king, but since we cannot depend on people like this to be in charge, we decide instead that nobody ought to have this power. This is a more reliable long-term bargain than hoping that we can simply keep the right people in charge. Of course, countries that lack our commitment to free speech don't have to be totalitarian hellholes. It's hard to feel too much sympathy for the German imprisoned for Holocaust denial, or Richard Spencer for his inability to enter the UK. But it is impossible to know just what the political environment will be in 25, 50, 100 years -- it is safer to keep this power out of the hands of government and let 'sunlight be the best disinfectant.'  Even if the marketplace of ideas has perpetuated a lot of bad ideas for a long time, censorious nations seem no more likely to preserve good ideas and weed out bad ones, and nations committed to free speech ensure that the arena is always open for bad ideas to be corrected.

The urge to censor through public opinion in America is nothing new, of course. Tocqueville famously warns against the tyranny of public opinion, and the shallowness of thought engendered by democratic, majoritarian norms that prevails despite legal commitments to free speech. To quote Allan Bloom's Closing of the American Mind:

Tocqueville found that Americans talk very much about individual right but that there was a real monotony of thought and that vigorous independence of mind was rare. Even those who appear to be free thinkers really look to a constituency and expect one day to be part of a majority. They are creatures of public opinion as much as are conformists -- actors of nonconformism in the theater of the conformists who admire and applaud nonconformity of certain kinds, the kinds that radicalize the already dominant opinions...

Tocqueville also writes that the power of the majority in America is absolute: so long as the people are still making up their mind on an issue, debate is permitted. But once a majority has decisively made up its mind, all debate is ceased and those who do not fall in line are persecuted -- not under the law, but through ostracization and stigmatization; although the kings of old only wanted to jail one's body, the democratic mob deprives the dissenting individual of his livelihood, reputation, and the pleasantries of everyday life. From this perspective, the legal commitment to free speech does not embody the cultural commitment but is a last-ditch protection of the individual against cultural antagonism to real debate.

No society can withstand totally free and open debate on the fundamental questions of political and civic life, of course. Radicals like Ron Paul and Noam Chomsky often lament that American public life seems to allow not for vigorous debate, full stop, but for vigorous debate only within a narrow boundary. But even they, respectively, became a Congressman and a professor at a top university, and certainly have never lacked for eager audiences, so Tocqueville's warning must be somewhat exaggerated. And they are right, in a sense: there are certain ideas that are simply not debated in public life, especially from leftists, paleoconservatives, libertarians, and others. And this isn't simply a bad thing: every society needs a degree of cohesion -- unity of belief, history, and action. Even a lover of free speech must admit of some limitation to that commitment.

In the end, as a lover of ideas, a lover of philosophy, I breathe easier in America knowing that I can explore even the most peculiar and offensive ideas here, that I can engage someone on any topic from any conceivable angle, and that the courts are dedicated to protecting this prerogative. From the standpoint of philosophy, of radical questioning, it is always better to live in a society in which minority positions will never be censored or persecuted by government -- especially in this era of the internet, in which niche opinions proliferate more readily than ever. As Socrates says in Book 8 of the Republic, the philosopher feels oddly at home in a democracy, insofar as his natural curiosity can turn toward examining all sorts of people in their complexities and variety, in a way he never could in a more intensely top-down society. Even if Tocqueville is right that it is not Americans' -- or anyone's -- natural inclination to adopt free speech as a cultural principle, it is always worth fighting for -- because the spirit of free and open inquiry is the only way to ensure human flourishing where it can and does take place.

Alex Knepper