How "Free Speech Culture" Is Killing Free Speech: Part One

I’m a long-time critic of the modern concept of “free speech culture” — the notion that support of freedom of speech requires me not just to refrain from official censorship, but to avoid a wide array of expression that might chill, deter, or punish other people’s speech. The legal view of free speech protects an unpopular speaker from being jailed or (successfully) sued; “free speech culture” is a social norm that discourages me from calling for that person to be fired, shunned, or otherwise socially sanctioned, or criticized to a degree that is, by some poorly defined measure, excessive.

In my view, the “free speech culture” ethos has substantially contributed to intellectual framework that has allowed the Trump Administration and other bad actors to engage in official government censorship to an unprecedented degree.

In this first post, I will describe my criticisms of the “free speech culture” ethos. In the second, I will argue that the ethos formed the rhetorical and intellectual basis for dramatically expanded official censorship.

My criticisms of the “free speech culture” ethos include the following:

The First Speaker Problem: “Free speech culture” suffers from what I call the First Speaker Problem: it picks a speaker, treats that person’s speech as the speech that should concern us, and then applies a set of cultural norms and questions only to the responses to that speech.

For instance, imagine that a speaker came to your university to argue that no professor should be allowed to teach “gender ideology,” that affirmative action resulted in unqualified students taking up the places of qualified students, that undocumented students should be expelled, and that the school’s curriculum should be examined for “anti-American” and “pro-communist” content. Imagine also that a group of students protest the speaker’s invitation, call for the speaker to be disinvited, shun and decry the student group that invited the speaker, and protest loudly outside the speech, shouting insults and abuse at attendees.

“Free speech culture” analyzes this situation by asking questions like “do the actions of these protestors encourage or discourage speech? Would such protests deter others from speaking? Do these protests make students who agree with the speaker less likely to speak up? Would these protest tactics, if widely repeated, result in more speech or less? Do these protests support an idealized view of civilized debate and discourse? Do they dehumanize the speaker rather than addressing the speaker’s views? Are the students’ reactions disproportionate? Do they seek to impose ‘real-world’ consequences on someone who is only offering a viewpoint?”

But “free speech culture”, as typically used in America, does not ask those questions of the person who has been chosen as the First Speaker. In other words, the “free speech culture” approach treats as irrelevant the questions “does this speaker’s speech encourage more speech? Does it deter speech? Does it attack and chill anyone from speaking? Does it promote an idealized view of debate and discourse? Does this speaker propose to impose ‘real-world’ consequences on speech? Does the speech dehumanize the person being criticized instead of addressing their arguments?” But only the people responding to speech are asked those questions; the first speaker occupies a preferred position and his or her speech is treated as presumptively, inherently promoting “free speech culture.” Hence, the speaker in this hypothetical — who is in favor of official state censorship — gets treated as the free speech culture “hero”, and the students protesting the speaker get treated as the free speech “villains.”

This is philosophically, intellectually, and morally incoherent. That’s especially true because selecting the “first speaker” is often an arbitrary exercise. Our speaker came to campus to denounce “gender ideology” because professors and students engaged in protected speech about “gender ideology. Why aren’t they the First Speaker? Why isn’t the professor teaching “communist” ideology the First Speaker, and why isn’t the speaker calling for their censorship violating the social norms of “free speech culture”? Why isn’t the question “by coming to campus and advocating for censorship, isn’t this speaker chilling and deterring speech?” Why does “free speech culture” not inquire whether the speaker is dehumanizing anyone or whether the speaker is addressing those people’s actual arguments?

The answer is primarily stylistic and cultural. “Free speech culture” means that you can call for censorship, disproportionately abuse other people for speech, chill and deter people for speech, even call for violence against others so long as you do it in certain ritualized and stylized ways that people who were on the debate team like. If you dehumanize fellow Americans from a lectern or with a debate moderator or as a contributing writer to a magazine, that promotes free speech culture; if you do it in a social media post denouncing the speaker, or from a protest outside, or in a letter to the Dean, that harms free speech culture. “Prove me wrong” is a magical incantation that renders what follows pro-free-speech-culture.

The Interests of Dissenters: The flip side of irrationally preferring the First Speaker is irrationally diminishing the speech interests of dissenters. “Free speech culture” has a natural tendency to discount the speech rights and interests of people who criticize speech. Often it treats those interests as having no weight. Take the Editorial Board of the New York Times, which famously and fatuously proclaimed a “fundamental right” to speak “without fear of being shamed or shunned.” But proclaiming this right inherently requires the New York Times Editorial Board to believe that the shamers and shunners don’t have a right to speak or associate. The proposition doesn’t weigh their interests at all.   

Promoting Ignorance of Free Speech Rights: The “free speech culture” movement has a natural tendency to promote civic ignorance. Especially when “free speech culture” adherents use sloppy language, they tend to suggest a false equivalence between being punished by the government and being socially punished by peers. This promotes the increasingly widespread view that criticism is a form of censorship that violates the rights of the target of censorship. But criticism, denunciation, shunning, and calling for consequences against a speaker are not government censorship. Criticism, denunciation, shunning, and calling for consequences for speech represent some other speaker’s freedom of speech and association. When you blur the line between the two, you encourage ignorance of the First Amendment and other sources of free speech rights. Knowledge is good and ignorance is bad. A free people should understand the contours of their legal rights. A little pedantry — consciously and explicitly pointing out the difference between free speech rights protecting you legally and social norms protecting you socially — goes a long way to promote civic education. By contrast, treating individual speech and government censorship as equivalent promotes ignorance. So, frankly, does simply hand-waving the difference, like “[t]he restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation.” One of those things is not like the other; those two things are not the same, and the difference is fundamental to ordered liberty.

The response to state censorship is the invocation of the rule of law — using official power (for instance, of the courts) to prevent some other official power from punishing or limiting. When you conflate criticism with censorship, you encourage using the rule of law to address criticism. More on that in Part Two.

Preferring The Powerful To The Powerless: “Free speech culture” has a natural tendency to prefer the interests of more powerful, famous, wealthy people with bigger platforms over the interests of more powerless, obscure, poor people without big platforms. If people who give speeches and participate in debates are inherently heroes and people who “excessively” criticize them or call them to be deplatformed or punished are inherently villains, then the heroes are going to be professional pundits and politicians and other prominent folks and the villains are going to be students and people whose platform is a hand-lettered sign or a shout at a protest or a screed on a social media account. The multi-millionaire pundit with a column and podcast and network who comes to a university and says some students don’t belong there is the free speech hero; the students in question who protest the pundit and say he or she shouldn’t be there are villains.

This can reach deeply embarrassing depths of self-pity, as when famous and experienced thinkers show up at a high-school to drop the n-word and portray themselves as victims when high school students protest by the classic method of walking out.

As further illustration of the preference for the powerful, consider the Harper’s Letter. It addressed the vulnerabilities of editors, journalists, professors, researchers, and “heads of organizations.” That focus is a natural element of “free speech culture” because those are the people we listen to and perhaps admire, and the people we notice when they’re fired or deplatformed. We don’t tend to notice a minimum wage worker fired for a bumper sticker.

As a result, the ethos of “free speech culture” tends to distort our understanding of who poses the biggest threat to our actual, tangible freedom of speech. The people currently using official government censorship to deport students for writing op-eds, fire professors for insufficiently mournful tweets, and restrict college curriculums by force of law were all very much in favor of “free speech culture” and loud critics of “cancel culture.” They spoke behind lecterns and debated through moderators and wrote op-eds, so they were not treated as a genuine threat to “free speech culture.” At the same time, university students — largely debt-ridden, ill-clad, sophomoric, noisome wretches, if you will permit me a moment of old-mannism — were relentlessly portrayed as the greatest threat to free speech culture. How’s that working out for you?

I’m not denying that students can be illiberal, censorial, close-minded assholes who think they should be able to dictate what you say or who you listen to. They can be! What I’m saying is that the “free speech culture” ethos has relentlessly sought to portray relatively powerless people like students as the prime threat to free speech in America. Again, how’s that working out for you?

Vulnerability To Bad Faith And Manipulation: The ethos of “free speech culture” is extremely vulnerable to manipulation and bad faith. In part that’s a function of its vagueness and philosophical incoherence. “Cancel culture” is rarely defined at all, let alone well, and the “criticism is censorship” mindset allows powerful people to portray classic American protest as some sort of rights violation. Donald Trump decried “cancel culture” as “totalitarian” despite his record of censorial behavior long before he went on an official censorship binge; that’s a feature, not a bug, of the linguistic flexibility of “free speech culture”.

Moreover, part of “free speech culture” is presuming that our interlocutors are speaking and acting in good faith even if they are manifestly not, to the point of civilizational suicide. Consistency, honesty, and sincerity matter. This was a fundamental element of my disagreements with Foundation for Individual Rights in Education leader Greg Lukianoff. As I will describe more in Part Two, we are reaping the consequences of treating bad faith as good faith and hypocrisy as sincerity.

Moral Sociopathy: When the American Civil Liberties Union fought successfully for the rights of Nazis to march at Skokie, they did not convene a public meeting to ask the Nazis to explain why the Jews were so bad, and they did not portray the Nazis as heroic warriors for free expression. That would have been unserious: the Nazis, given their way, would have suppressed many people’s speech. Rather, the ACLU’s stance was that the First Amendment doesn’t permit censoring the Nazis however repugnant they are.

The “free speech culture” ethos, by contrast, has a tendency to go well beyond arguing that awful bigoted totalitarian people shouldn’t be officially censored or fired. Rather, it encourages treating people as “free speech heroes” so long as they are struggling for their own right to speak, irrespective of what they would do to other people’s right to speak. It also has a habit of apologia. It tends to drift defensively from “we shouldn’t call for people to be fired for saying awful things” to “actually what they say is not that awful.”

That’s how people nominally in favor of liberty can repeatedly platform and promote folks like Chris Rufo, someone who says rather explicitly he’s going to use propaganda and media manipulation and government force to seek censorship of ideas in academia. Rufo became the darling of the “liberal” media and of nominal libertarians even as he told them he was going to eat them. He had their number: he did it in that stylized, ritualized, culturally appropriate way, so they were happy to give him a platform to call for their own muzzling. The sheep invited the wolf to dinner, and the wolf grinned.

Or take Amy Wax. Amy Wax is a loathsome bigot who thinks America would be better if my children weren’t here. The Foundation for Individual Rights and Expression believes — very correctly, I think — that when Amy Wax’s university seeks to discipline her for speech, it must obey its own rules and carefully consider the values of academic freedom and due process. It also says “[t]o FIRE, her viewpoint is beside the point,” which is the correct way for a rights-defending organization to view the situation. But it goes further and offers her a platform to promote her views. That’s a “free speech culture” ethos move: the ACLU shouldn’t just use the rule of law to defend the rights of Nazis to march, the ACLU should have the Nazis on their radio show to explain why Jews are bad.

In short, “free speech culture” is bad and unserious to the extent it tells us that speech is morally neutral and that we should not make value judgments against it, and that there is no moral component to promoting it. I am committed to the defense of the legal right to speak, considerably more broadly than some people like. But it is morally and philosophically incoherent to suggest that defense of speech requires us to refrain from speaking very frankly about moral truths. Giving Amy Wax a platform to be a bigot is morally distinguishable from saying she should be free to be a bigot. “The only immoral thing you can say is that someone else’s speech is immoral” is not an ethos worthy of respect.

You may disagree with me that Chris Rufo and Amy Wax are awful. That’s fine. The disagreement I am talking about is whether it’s relevant. The disagreement I am talking about is whether it’s morally neutral to promote bad things as opposed to promoting the right to be bad.

Making the Deal Look Unpalatable: All of these problems combine to do something very dangerous: they suggest to Americans (and particularly young Americans) that free speech is bullshit.

Every generation of Americans must come to terms with the fundamental bargain of free speech: we agree that we won’t use the mechanism of the state to punish speech we don’t like and will talk back instead. This is not the default American view, nor the human one. The default view is “let’s use power to promote speech I like and punish the speech I hate.” It’s a tough sell to move people away from that. Every generation has to accept the deal that they’re going to refrain from censorship to protect their own right to speak. Plenty of us still don’t accept that bargain, but if a critical mass of people don’t accept it, then it stops working. Free speech is Tinker Bell; if enough kids don’t clap, she dies. Or as Learned Hand put it more poetically: “liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”

“Free speech culture,” as practiced in American, makes this deal seem like a scam. “Free speech culture” tells students that free speech means someone can come to their campus and say bigoted and evil things and that’s good, and that their remedy is more speech, but if they use that speech the wrong way, that’s bad. “Free speech culture” tells people that we should be more worried about a prominent podcasters’ speech being chilled than their speech being chilled. “Free speech culture” elevates the rituals of a particular elite, academic style of speech over substance, such that calling for censorship from a debate stage is pro-free-speech-culture. “Free speech culture” tells people they should shut up about the things that make them passionate so other people feel more comfortable disagreeing with them. “Free speech culture” is intellectually, morally, and philosophically incoherent and people perceive that incoherence. “Free speech culture” is currently telling students and professors that it’s their fault that government force is being used to deport and expel and fire and censor them because they dissented wrong. “Free speech culture” tells people that others have the right to denigrate them, but they have some ill-defined obligation not to respond too hard. “Free speech culture” tells people they’re wrong and illiberal to notice that people using government force to censor them were previously calling them illiberal and censorial.

If this just meant that people would reject the deal of “free speech culture” I wouldn’t particularly care. A vapid philosophy is not entitled to a following. But the deal people are rejecting is respect for legal norms of free speech. The norm that is suffering is the norm against government censorship. When enough people think that all of free speech, including free speech law, is bullshit, then free speech rights won’t be enforced. That’s the path we’re on, and in my view, the ethos of “free speech culture” shares the blame.

In Part Two, I’ll talk about how we can trace these problems to the current official government censorship trending in America.