Ranking the arguments for free speech
Why are some of the most popular arguments for free speech so terrible?
Contemporary debates around free speech have become so cynical and imbecilic that one can plausibly point to them as an argument against it: this is what people want to defend? And one of the major reasons for this, I think, is that we rarely distinguish between the different arguments for free speech, much less acknowledge that some of them are stronger than others.
When we look at them individually, I think that the arguments for free speech are often pretty weak. Many of them are internally inconsistent, or factually implausible, or rely on values that aren’t universally shared. Still, there are also two — the pacifist argument and the Streisand argument — that seem to be underappreciated and underused for reasons that will become clear.
THE DEONTOLOGICAL (JUST-SO) ARGUMENT
ARGUMENT: Censorship is wrong, not because of its consequences, but simply because it is a fundamental evil. It is wrong in the same way that unnecessarily hurting someone is wrong: it’s at odds with our moral intuitions.
MY TAKE: The strength of deontological arguments is that they are always perfectly logical; they aren’t even arguments really, just assertions that one either accepts or rejects. And this is a perfectly fine form of moral reasoning; most people accept the deontological argument against unnecessary harm, for example, even though it doesn’t have any real logic behind it. This highlights the weakness of the deontological argument for free speech, however, because most people just don’t find it morally compelling. That’s why free speech advocates themselves often end up relying on other arguments instead of this one.
THE APPEAL TO PACIFISM
ARGUMENT: Censorship can only be enforced with the threat of violence. This is even true outside of obvious cases, like when police drag a protester out of a town hall meeting. When I begin ranting on a C-SPAN call-in show and they cut my mic, the real reason I can no longer be heard is that if I try to show up at the production studio and turn my mic back on I’ll be arrested. Violence is always wrong, and therefore censorship is always wrong.
MY TAKE: GOATed argument for free speech. The internal logic is unassailable and it delegitimizes every free speech restriction one can think of. Its only real weakness is that most people aren’t pacifists, but there are very strong philosophical arguments for pacifism; even the deontological argument for pacifism is extremely compelling. As an added bonus, this argument for free speech also condemns private property as an intrinsically violent institution, which is probably why you don’t hear this case more often.
STICKS AND STONES
ARGUMENT: Speech itself cannot be harmful; harm only comes from the choice to act on speech in certain ways. There is therefore no real justification for speech restrictions.
MY TAKE: This is one of those arguments that few people actually believe, and it’s only worth responding to because so many people make it anyway. Lying, personal abuse, and threats all create harms that have nothing to do with whether some third party chooses to act on them. And everyone gets this, which is why everyone who makes the sticks and stones argument eventually complains about lying, personal abuse, and threats himself.
There’s also a second serious problem with this argument: it doesn’t actually delegitimize censorship. It says that censorship doesn’t prevent harm, but this is very different from saying that censorship causes harm. To establish that one has to make one of the other arguments on this list, and if one accepts one of those then the sticks and stones argument is entirely superfluous.
THE APPEAL TO SELF-INTEREST
ARGUMENT: Censorship may seem justifiable when it’s happening to other people, but you wouldn’t want to be censored yourself. Therefore, it’s in your own personal interest to endorse norms and build institutions that defend free speech for everyone.
MY TAKE: Terrible argument on multiple counts. First, it’s easy to think of cases where one might support censorship even if it meant they were censored too; if someone’s speech seems to be putting your life at risk, for example, you might prefer being alive with a universal censorship regime in place to being dead but with free speech rights intact. Second, it’s not clear why “you could lose the fight for free speech” works as an objection to a one-sided free speech regime but not to a universal free speech regime. Yes, the first strategy could backfire on you if you lose the fight and find yourself censored instead; but the exact same thing can happen if you lose the fight for a universal censorship regime too. Third, there are lots of reasons to believe that norms and institutions meant to uphold a universal right to free speech won’t actually protect you when your opponents take power. What’s just as likely is that they will immediately ignore the norm and start tearing down the institutions.
THE APPEAL TO CONSISTENCY
ARGUMENT: If you defend your own right to free speech, consistency demands that this defense should also apply to other people.
MY TAKE: This is a potentially weak argument that often ends up being reasonably strong in practice. Weak because speech does not need to be defended on free speech grounds. If I simply insist that people ought to be able to say things that are good and true, it isn’t inconsistent to say, at the same time, that we ought not be able to say things that are evil and false; this position may have other problems, but hypocrisy is not one of them. That said, the reason the appeal to consistency ends up being strong in practice is that a lot of people do defend their own speech on free speech grounds and then shift over to the content-based rule for their rivals.
THE MARKETPLACE ARGUMENT
ARGUMENT: Maintaining a free speech regime allows us to hear, evaluate, and then accept or reject ideas. This is a crucial precondition to all kinds of human progress.
MY TAKE: The strong version of this argument, that free speech is necessary for progress, is certainly untrue; humans have demonstrably made all kinds of moral, scientific, and political progress throughout history despite regimes that were far more censorious than anything imaginable today. Meanwhile, the weak version — that free speech makes progress easier or more likely — is hard to prove either way, though I think there’s good reason to doubt it. Bad ideas often seem to prevail in our society for reasons that have little to do with censorship and everything to do with human irrationality, or with the sort of social dynamics that lead to perverse outcomes even when navigated rationally.
THE STREISAND ARGUMENT
ARGUMENT: Attempts to limit or censor the speech of other people can have the perverse outcome of making the speaker and their ideas seem more attractive.
MY TAKE: Strong argument. The so-called Streisand effect conceivably be thwarted if your censorship regime is so absolute that the banned ideas simply have nowhere to take hold — but few people are so ambitious these days. Instead, what you usually get are localized calls for censorship — on social media one moment, in universities the next, in the workplace the next — that leave open opportunities for the Streisand effect to kick in. And that effect is extraordinarily powerful; there’s a reason why our discourse is absolutely overrun with people promoting their ideas by insisting that they’re being suppressed and censored.
Why don’t we hear this argument more often? A major reason, I think, is that lot of people only defend free speech because it allows them to take advantage of the Streisand effect. Reminding us that ideas aren’t necessarily good just because they’re being censored is directly at odds with their effort to present their own ideas as dangerous and suppressed, which is the only reason they were talking about free speech in the first place.
THE APPEAL TO DEMOCRACY
ARGUMENT: Censorship impedes the ability of people to exercise their right to self-governance.
MY TAKE: I think this is a much more complicated argument than its advocates will usually admit. Imagine a government where censorship is permitted in every case but one: periodically, we all have the right to anonymously drop any proposed referendum into a box, which everyone else then may vote on however they like. Is this government democratic?
In the strictest sense of the term, it seems to me that it is. To say otherwise, one has to establish all kinds of secondary claims about how self-governance demands not only the chance to propose and vote on ideas, but also on the opportunity to persuade a democratic plurality that certain ideas are the ones they should support. At this point, a common problem this line of argument runs into is that few free speech advocates actually believe that everyone is entitled to a meaningful opportunity for public persuasion; they are fine with one mediated by capitalism, which gives some people much larger platforms than others.
Even within an anticapitalist framework, however, this “right to persuade” is hardly self-evident. Even free speech advocates typically insist that there are other rights that should be inalienable; but if we accept that, it’s not clear why there should be a right to try to persuade people that those rights should be abolished. This touches on another problem of internal consistency: the right to persuade would seem, implicitly, to delegitimize attempts to persuade people that it is wrong. One might insist “you can try to persuade people that free speech is wrong, but they just shouldn’t be allowed to outlaw it” — but this is itself an antidemocratic argument, isn’t it?
Ultimately, free speech’s appeal to democracy falls prey to the basic paradox that has always defined liberal democracy: it’s a system of popular sovereignty over everything but itself.
THE APPEAL TO TRADITION
ARGUMENT: Leftists have always supported free speech; today’s opposition to free speech from the left reflects a complete abdication of their principles.
MY TAKE: As a factual matter, this simply isn’t true; or rather, it is only definitionally true depending on tendentious and often circular claims about what qualifies as the left tradition or what qualifies as support for free speech. People who self-identify as leftists, and who are generally regarded as such, have often supported various restrictions on hate speech (for example); one only gets around this historical fact with the tautology that if you’re a leftist you tolerate hate speech, and if you don’t tolerate hate speech you’re not a leftist. Similarly, there is an enduring line of left argument which insists that trying to defend free speech by enshrining it as a legal right can be counterproductive because of the paradox of tolerance, or if it maintains the capitalist system, which is incompatible with free speech. When critics object to this on “leftist” grounds, they are really objecting to it on liberal grounds: they don’t really want free speech so much as free speech maintained in a particular way, namely through legalism.
The stronger objection, of course, is who cares what the tradition is; if Karl Marx got this question wrong when he was editing newspapers, so much for Marx. But even this, I think, concedes too much, because even if some leftists have historically taken free speech positions, plenty of them have not.
ARGUMENT: It’s impossible to legislate speech restrictions that do not unintentionally criminalize speech that we do not intend to criminalize, or that criminalize all of the speech we do intend to criminalize. And because speech acts are so ubiquitous, it’s impossible to enforce them thoroughly.
MY TAKE: Decent argument, but it has implications that I don’t think many people actually accept. It’s true that language use is a difficult thing to legislate, since words are so slippery and nebulous and shifting; but as critical legal theory has long highlighted, those exact same qualities of language undermine the entire rule of law, not just certain kinds of legislation. If one accepts the claim about speech restrictions being difficult to legislate because of the way that language works, one has to accept some serious challenges to legalism itself which most people are not prepared to accept.
The claim about enforcement runs into the same kind of problems. Speech acts are ubiquitous, but so are criminal acts; and law enforcement has developed all kinds of strategies over the years for enforcement-without-enforcement, for example through intimidation. You can never thoroughly enforce censorship, but only in the same sense that you can never thoroughly enforce (say) laws against theft.
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