by Tim Sommers
What if most speech is worthless? Or, rather, what if most speech that purports to count as a contribution to “free expression” is mostly worthless? Take the internet. What’s on it? Lots of great information and great journalism and even art. But, also, pornography. Lots of pornography. Between 15% and 80% of net traffic is porn, depending on which study you believe. But if you count semi-nude pictures, it’s got to be at least…well, a lot. Lots of cat pictures, too. Then there are the blogs and comment threads and likes and dislikes. Even where these are about significant topics, most of opinions expressed are repetitive assertions of a fairly narrow range of already well-known opinions. And then there’s the insults, the invectives, and general nastiness. I am not against porn. I am not even against insults per se. What I wonder though is, whatever value porn, for example, has for you, or whatever expressive relief you get from typing insults, should we think that these things ought to count as worthy the high value and high level of protection we ordinarily afford free speech? Maybe. Maybe, not.
There seems to be a lot of agreement that “free speech” is in crisis – on campuses, on the web, or on social media. But not a lot of agreement about what the crisis is supposed to be. There seems to be a lot of agreement that regulating, or interfering in any way, with free speech is bad. But not a lot of discussion of exactly what is bad about it. It sometimes seems that “freedom of speech” is just an empty phrase to be filled in by whatever you happen to think that it would be good not to have interfered with. (Maybe, you’ve encountered the internet joke that suggest you can now argue for anything by saying “what you want to argue for” and then asserting “Because freedom!”) And so, the “crisis” sometimes seems to be just people you don’t like interfering with something you do like. (Have you ever heard of a conservative pundit complaining about a liberal speaker being “de-platformed” or vice-versa?) My point is, unless we engage with what is good or bad about freedom of speech, it’s going to be hard to evaluate what the crisis is and whether we can regulate our way out of it. So, let’s start there. Or, rather, here: What is free(dom of) speech?
I think it helps to think of speech more broadly as “expression”. Surely, we don’t just mean by “speech” here what we mean by “speech” in ordinary discourse. In fact, in ordinary discourse speech refers mainly to (what Brian Leiter has called) “mundane speech”: small talk, giving directions, coordinating when to meet for dinner. [Though I disagree on several points, I am influenced throughout by Leiter’s “The Case Against Free Speech” (file:///C:/Users/17249/Downloads/SSRN-id2450866.pdf)] Even though you are not supposed, for example, to talk during the movie, this is not the kind of speech that most people are worrying will, or even could, be regulated. Non-mundane expression presumably includes (at least) artistic, scientific, philosophical, and political discourse (construed as broadly as possible) – and has many modes: speaking, writing, singing, dancing, blogging, podcasting, painting, drawing, sculpting, texting, posting comments on internet threads, and basically anyway you can convey information, or express emotion, especially the kind relevant to non-mundane expression.
What, then, is the “free” or “freedom” part of free expression? I think it’s easiest to illuminate by talking about what the arguments for that freedom are. There are three broad categories: autonomy arguments, “marketplace of idea” arguments, and “who regulates the regulators” arguments.
The autonomy argument really has two sides. Autonomy is both the expression of, and an instance of, our freedom. That is, as a free person, I should be allowed to express myself and you shouldn’t be allowed to stop me. By definition, in a liberal democracy that kind of freedom gets a certain priority over other kinds of, for example, consequentialist considerations.
But almost no one believes that considerations of autonomy trump everything. Consider that the courts have always acknowledged “time and place” restrictions on speech. You are not allowed to yell “fire!” in a crowded theatre, for example. (One thing you probably should know about that frequently invoked example, though, is what it was that the person who was in trouble had done that the court thought was the equivalent of yelling “fire!” in a crowded theatre. Here it is. They were standing on a street corner handing out pamphlets urging people to oppose America’s entry into World War I. It’s not the best example, in other words, but you see what I am saying.) Anyway, it’s not just time and place restrictions. Some kinds of speech are subject to “prior restraint”. In matters of life and death, say National Security, the government has the affirmative ability to silence you before you even start talking or reporting. (Given the widespread abuse of “national security” to not only cover up wrong-doing, but to simply keep average citizens in the dark, this is (again) not an unproblematic example.) Maybe more telling, then, is institutional constraints on freedom of speech.
You don’t have anything like unlimited freedom of speech at your job. And there are ways in which the people you work for can limit your speech even when you are not at work or no longer work there at all (for examples, there are non-disclosure agreements that have been around a long time and a recent trend of employees being fired or disciplined over social media comments or photos of questionable taste). Also, the legal system and the courts have been rigidly constructed to limit free speech in the interest of coming to correct conclusions about the issues before them. And consider universities. Universities put all sorts of restrictions on who can speak and when. If you don’t believe me, come to one of my classes. Raise your hand if you want to speak. (Though I wouldn’t call the police on you if you refused to change seats. (https://www.nbcnews.com/news/us-news/ball-state-professor-called-police-class-because-student-would-not-n1121201) Probably.)
Long story short, whatever autonomy interests we have in speech still have to be balanced out against, not only benefits and harms, but what is conducive, in certain contexts, to the function of the institution. Here the interest in autonomy meets the idea that the value of free speech is that it creates a “marketplace of ideas”.
We owe this phrase, the marketplace of ideas, to John Stuart Mill. Add to it that the remedy for bad speech is more speech (paraphrasing the legendary Supreme Court Justice Louis Brandeis) and you have the basic idea. One thing to notice is that if you already believe that we have good reasons to be skeptical about the outcomes of unregulated marketplaces in general, maybe you ought not be too sanguine about the outcomes of unregulated speech markets.
Consider science. I think that science has been more successful than anything else at dragging us closer to the truth. And I think in certain ways science is a model of a kind of market place of ideas. The core idea is that anyone and everyone can contribute and that all the ideas and information are available to everyone. No one mandates anyone else’s opinions about, for example, what the best theory currently available in some area on some topic is. Instead, the success of a theory is that it gains adherents over time. If it becomes the dominant theory it’s only because the people who study whatever the theory is a theory about think it’s the best theory about that. But science is hardly an unregulated market. “Everyone” mostly means only people with certain qualifications. And to the extent that information is made available it’s through refereed journals. Outside of the strict confines of your field, you still have freedom of speech in general; but whether your speech counts as a contribution to your field is highly regulated.
Ideally, though, science is self-regulating. The rules are formulated and enforced by participants. Attempts by outsiders to use money or politics or whatever to influence the views people are frowned upon, at least by scientists. (But sometimes still unavoidable. Political interference on certain issues like smoking, fire arms, and climate change is a problem. And the influence of outside funding across the board has always been an issue.)
Which brings us to the third category of reasons why we need freedom of speech. Suppose you think that the efficacy of speech would be improved by regulating speech and you think that the benefits of that improvement would be great enough to outweigh the costs to our autonomy. Now, ask yourself, who is going to do the regulating?
Pause to consider what some people count as current symptoms of crisis in free speech. Some people think that it’s a huge crisis that students at some colleges are protesting and disrupting invited speakers. It might be that some of these protesters think that calling out racism, misogyny, or homophobia is more important than free speech. But it might well be that the objection is not only to the speech itself, but the way the speech is legitimized by being presented in official or quasi-official university settings. As we have already noticed, universities are rife with restrictions on speech. And in this case the power imbalance, such as it is, tilts in the direction of officials of the university rather than a relatively (sometimes, absolutely) small group of students. If you think college-aged kids yelling at Charles Murray or Ann Coulter is a crisis of free speech, I think (at a minimum) you radically underestimate the strengths of the institutions – and the power of political actors – involved.
Sometimes the claim is, more broadly, that brave, important voices in our culture are being marginalized. Unfortunately, people who say that don’t usually mean, for example, Colin Kaepernick, but more like the voices of the “Intellectual Dark Web”. I don’t want to beat a mostly dead horse, but there is no such thing as an “Intellectual Dark Web”. There is such a thing as a “Dark Web”. But none of these people, as far as I can tell, are on it. Rather, they are supposed to be a thing because they have all been marginalized for their unPC views in a world gone mad with PCness. What are these views? Sam Harris doesn’t like religion, but especially he doesn’t like Islam. (https://www.huffpost.com/entry/bombing-our-illusions_b_8615) And he thinks that whether or not people-of-color have lower IQs than white people is an idea that hasn’t been given a fair hearing. (https://www.vox.com/policy-and-politics/2018/3/27/15695060/sam-harris-charles-murray-race-iq-forbidden-knowledge-podcast-bell-curve) Christina Hoff Sommers (no relation to me) thinks feminism has gone to far. (https://www.amazon.com/Christina-Hoff-Sommers/e/B001H6WUC2%3Fref=dbs_a_mng_rwt_scns_share) And Jordan Peterson thinks something about Lobsters and hierarchy is inevitable or something. (https://www.youtube.com/watch?reload=9&v=6ypVbUBEZHg) It’s hard to tell.
How they have been marginalized is even harder to tell. They are mostly wealthy (Peterson was making over $60,000 a month on Patreon at one point and have good jobs (Sommers is a resident scholar at the American Enterprise Institute for Public Policy Research and Steve Pinker, another Dark Webber (https://twitter.com/sapinker/status/1186065313516924929?lang=en) is at Harvard). They have almost all written best-selling books and made many media appearances – and several have popular podcasts. Leaving aside the issue of the substance of their views, if you think they symbolize a crisis of marginalization in free speech; I respectfully suggest you don’t know what “marginalized” means.
I could go on like this. Some people think #MeToo went too far. Which is odd because almost everyone called out by the movement has eventually admitted that they pretty much did what they were being called about. (https://www.vox.com/a/sexual-harassment-assault-allegations-list/steven-wilder-striegel) Or, maybe, “Cancel Culture” is out of hand. (https://mashable.com/article/cancel-culture-2019/) I don’t know. Shunning people has a long history. But I am not sure that internet shunning doesn’t fit the meet “speech with more speech” model – in terms of how to address it.
Here’s my candidate for the crisis of free speech, then. We are drowning in it. The internet began as a shining vision of a new democratic regime of free expression previous impossible before this great technological and sociological leap forward. Now we have people questioning not just the massive scientific consensus on global warming, vaccinations, and the world being round, but things as mundane (and yet important) as whether we can count on the Congressional Budget Office to keep their accounting practices nonpartisan. Remember the Tea Party? It began as a massive protest against Obama raising taxes at the exact moment, in real-time, that Obama was actually cutting taxes.
We’ve got plenty of speech. We’ve got precious little public agreement on basic facts. The reign of massive amounts of unregulated free speech has not led to democracy, it’s led to a world of “alternate facts”.
If we want free speech that contributes to a marketplace of ideas then, despite the risks it poses to expressive autonomy and the frightening question of exactly who is going to do the regulating, we’ve got to find ways to regulate it.
Here’s one thing we could try without going straight to regulating speech directly. We could use anti-monopoly law to break up internet, and especially social-media, monopolies. You could even argue that I am wrong to blame unregulated speech at all, and that it is the de facto regulation done by private (rather than state) entities that has caused the problem in the first place. Maybe, but in the end, I believe that, whatever the risk, we are going to have to start regulating the content of at least some kinds of speech – at least at the extremes. Feel free to have – and express – a different opinion. Obviously.