People talk about “free speech” more than they think about it. I have come around to a new understanding. Most of the public does not care about legal doctrine, the abstract rules and their rationale. I have realized that those of us trained in the formal reasoning about these norms must reckon with the prevailing attitudes instead of trying to lecture others about their misconceptions.
The first thing that shocks me, even though it should not, is that hardly anybody, whatever their opinion or identity, embraces the First Amendment in a "content neutral" manner. They react depending on the substance of what is said. I point this out not to criticize them but to criticize myself and others who try to be purists.
We have to acknowledge that the neutrality we idealize is all but impossible. People are selective in sympathy: today’s free speech champions would ridicule into silence those whom they regard as hypersensitive or “politically correct,” who would return the favor of disparagement. They characterize what they do not like as incitement or as conduct rather than expression. Those of us who try to set aside our own feelings do not inspire others in our convictions. We are worse then both sides' opponents, for seeming as if we follow a superior ethic. (For philosophers, my argument is that “rule utilitarianism” is not compelling, other than to philosophers. The conclusion that, on balance, society is better off with more speech instead of less speech appeals only to people who accept an accounting of morality. The people around us rely on a concrete context to calculate benefits and costs.)
For example, I do not believe what people think I believe. Mine is the classic free speech position, strengthened, not weakened, by an appreciation of the harm of hate speech — which calls for its vigorous antithesis. I have established myself as anti-racist, including through action in official roles and as an ordinary person, not merely with obligatory rhetoric. Yet I also am convinced racism should be challenged rather than suppressed. My goal is to engage prejudice in order to defeat it. So as a higher education leader I have directed staff to avoid anything resembling censorship; as a writer, I have supported the right to speech that is "offensive;" and as a teacher, I have opposed "trigger warnings." I am open minded out of self interest. My growth has come from being shown I am wrong, not from being assured I am entitled.
Second, on the internet especially, the concept of censorship has been transformed. In casual discussion, and everything is casual or it is condemned for its self-importance, “censorship” has been extended from a government restriction on free speech to any effort to edit. Technically, it is against official policies, including “prior restraints,” that free speech is to be protected. It has come, however, to refer to any decision affecting communication. A website that does not wish to appear to be endorsing racial prejudice; a private employer also protecting diversity and equality; even another person who is critical (ironically, and that is an appropriate use of the word, doing exactly what free speech proponents supposedly are advocating) — all of them are denounced as “censors.”
What we might term “old-school” free speech was about the government allowing people to assemble, march, carry banners, and deliver orations, in particular attacking the government itself, in the interest of the democratic process. It had limitations. People were not forced to affiliate themselves with others with whom they disagreed. They had their own choice of how to define themselves. They also had a corresponding right not to watch or listen. That was the objection to the objection to obscenity: you can ignore it.
Third, there was never a notion that free speech meant no consequences would follow from your remarks. The state could not punish you criminally such as through imprisonment or penalize you civilly such as through loss of your job as a civil servant. But if you were a civil rights activist, people could and did shun you, including even within the community of which you were a member and on behalf of which you were taking real risks. You did not have recourse. The contemporary version would prohibit what a lawyer would deem a “non-state actor” from telling a bigot that his free speech in the workplace violates another employee’s right against discrimination, based on race, gender, religion, national origin, or sexual orientation. Taken to an extreme, it would eliminate any claim against the “hostile work environment.” Intolerance would be privileged over inclusion.
It is as if to say that because everyone has a right to speak that everyone also is right in that speech. If all discourse were a report of one’s own emotions, then that would be justifiable sentiment. But some utterances are assertions of fact or applications of logic, and they can, should, and must be judged against standards that are agreed upon. The license of free speech does not imply that in biology or physics, or even history or literature, a professor cannot grade a student legitimately and fairly. Otherwise, free speech is reduced to monologue, at best a series of them, each of us ranting in turn if we are even polite enough to wait. Lost is the aspiration for dialogue, which was the purpose of promoting free speech.
I once taught a seminar on the First Amendment. I did so at a unique school, Deep Springs College. Located on a student-run cattle ranch at the edge of Death Valley, it was the perfect place for this subject. People there, faculty, staff, students, and community members alike, were aware they would interact with one another again and again and again, from the classroom to the fields to the communal Boarding House where all meals were taken together. Since they learned and labored together, with more than the semblance of self-government, isolated from the world, they had the respect for individualism that is instilled only by a common cause. Weekly public speaking is integral to the regimen. The value of free speech is evident.
In most situations, we are strangers. We do not expect to form the bond of mutual support. Yet speech enables society, as society depends on speech. Hermits do not need free speech any more than they require law. Free speech is both powerful and fragile. “Free speech” is as much a practice as a principle. It deserves good speech.