by Robert Jensen
Smart people sometimes say not-so-smart things about freedom of speech.
Let’s start with Elon Musk, the boss at Tesla and SpaceX, and his often-quoted declaration that he is a “free-speech absolutist.” Whatever one thinks about Musk, he seems to be a smart person. But that’s a silly statement.
After he bought Twitter and then banished from the platform various people whose speech he didn’t like, critics labeled Musk a hypocrite. I’m not much interested in that, since I’ve never met anyone who didn’t have a bit of hypocrisy hiding somewhere in their lives, myself included. A more important observation is that if Musk, and all the other people who claim to be free-speech absolutists, actually meant it, they would be admitting that they are moral monsters.
No one really means it. There is no such thing as a free-speech absolutist.*
To be a true absolutist—and to endorse that as the guiding principle for First Amendment law in the United States—would mean rejecting any limits on any speech no matter what the consequences. That’s what “absolute” usually means—to do something, well, absolutely, without exceptions.
Absolutism would mean there would be no libel laws allowing people to recover damages when others deliberately lie about them. There would be no laws against the distribution or possession of child sexual abuse materials, once more commonly called child pornography. There would be no laws against speech that advances a conspiracy to murder someone. And the list goes on.
Imagine that I publish a story saying Elon Musk runs an international drug trafficking ring, that he uses those illicit profits to offset hidden losses at Tesla, and that his mismanagement of the electric car company is the result of his addiction to fentanyl. That story is, to the best of my knowledge, false on all counts. If Musk sued me for knowingly making false and defamatory statements (the kind that injure one’s reputation), he likely would recover money damages, punishing me for my speech, a rejection of an absolutist interpretation of freedom of speech. Most people would agree that libel law is justified.
If I were charged with selling or buying child sexual abuse materials, which are illegal in every state and under US law, I doubt anyone would suggest my First Amendment rights had been violated. The production of these materials rightfully has been deemed to be inherently harmful to children. But even if I didn’t produce it, the selling and buying of that material leads to increased production, and hence, increased harm to children. Most people would agree that should be prohibited—the connection between the production and consumption is clear.
If I lived next to a yappy dog and my neighbor refused to do anything to quiet the animal, most people would agree I do not have a right to kill my neighbor (or the dog). Imagine that I find another neighbor who is as annoyed as I am, and I provide that second neighbor with detailed information I’ve collected about when our yappy dog-owning neighbor will be alone at home and what window he will be sitting in front of, and I suggest a spot from which a clean shot can be taken, and my neighbor successfully hits the target. I would have participated in a conspiracy to commit murder, even though all I did was speak to my neighbor about a plan. Who endorses an absolutist interpretation of the First Amendment that gets me off the hook?
Here are some other forms of speech we punish without much concern about freedom of speech: perjury, true threats, inciting another to suicide, sexual harassment, insider trading, blackmail, fraud, unauthorized use of another’s intellectual property. All of these can be accomplished through speech alone, but that doesn’t mean we treat them as absolutely free speech.
The reason no one supports an absolutist standard for freedom of speech is because speech can, and often does, cause harm. Lying about someone can damage their standing in a community, leading to loss of income and social connections. Selling and buying child sexual abuse materials increases the number of children abused by the producers. Planning with others to kill someone makes the planner partially responsible, along with the person who pulls the trigger.
Musk is not the only person who makes the incoherent claim of being an absolutist. Nadine Strossen, a lawyer who served as president of the American Civil Liberties Union from 1991 to 2008, gave the prestigious Richard S. Salant Lecture on Freedom of the Press at the Harvard Kennedy School’s Shorenstein Center on Media, Politics and Public Policy in 2015 (I include all those details to indicate this was a serious setting). In response to a question, she said:
Well, I’m a free-speech absolutist. But, that doesn’t mean that speech is always protected. Along with every other fundamental right, it may be restricted. And I’m going to use a lawyer’s term here, if, but only if, you can show that the restriction promotes a countervailing goal of compelling importance that can’t be promoted in any other way. And that’s a very, and appropriately, hard burden of proof.
So, Strossen is an absolutist who would not protect speech absolutely. I’m not taking issue with her articulation of a standard for restriction but with her inappropriate use of “absolutist.” It reminds me of a friend who told me that she was a vegetarian. I said I didn’t realize she had stopped eating meat. She said, “Well, I eat a little chicken and fish.” I said, “Well, then you’re not a vegetarian.” She was annoyed with me, apparently wanting to claim the label without having to adhere to its common definition. Using “absolutist” to describe a First Amendment interpretation that isn’t absolutist seems to be a similar rhetorical trick, in this case claiming a political purity that doesn’t exist.
What “absolutist” appears to mean, as Strossen suggests, is something like this: “I will impose a high standard in evaluating any restriction on speech. In complex cases where there are conflicts concerning competing values, I will default to the most expansive space possible for speech that is consistent with other people’s rights and safety.” That’s a perfectly defensible statement, but it’s absolutist in the same sense as my chicken-and-fish-eating friend was a vegetarian.
No matter how obvious the problem of claiming absolutism, it continues to be used, not only by quirky CEOs and political activists but also by law professors writing in law journals:
To a degree that is unusual around the world, even among other constitutional democracies, American constitutional law generally protects expression of even the most hateful, offensive, illiberal, and dangerous ideas. This First Amendment absolutism, moreover, has been a striking point of judicial consensus, even on our current, badly fractured Supreme Court.
Here’s another description from a recent scholarly book: “The most unyielding analysis of the First Amendment is the absolutist approach, which views the First Amendment proscriptions as inflexible: Congress shall make no law, period.”
Indeed, the First Amendment does say, “Congress shall make no law … abridging the freedom of speech, or of the press.” But that has never meant no law, because it can’t mean no law, because “no law” would allow and encourage many forms of harm that speech can cause harm. No law means no law, except when it doesn’t.
Those who endorse this kind-of/sort-of/not-really absolutism often come from a libertarian political position, on either the right or left side of the political fence, that prioritizes individual liberty over other social concerns. For example, in the debate about whether racist hate speech should be punished, libertarians typically reject any constraints on people’s right to use racist slurs, even though they might reject the use of such slurs themselves. Supporters of hate-speech regulation suggest that in certain situations, free-speech concerns should be subordinated to the goal of eradicating racism and protecting the targets of that racist speech. This assertion of a priority for equality over individual liberty is almost exclusively articulated on the left, though not all liberal/progressive/left people agree.
What position is most consistent with the First Amendment to the US Constitution, and more generally, free-speech principles? Whatever one’s view, an invocation of absolutism cannot answer the question.
Every society draws a line between the stories one can tell freely, without risk of punishment, and the stories that might get you in trouble. The line will be different from society to society, and different in a single society over time. But every society distinguishes between permitted and prohibited speech.
Once we jettison simplistic notions about absolutism and accept the inevitability of drawing that line, we can get down to the business of balancing competing interests. In deciding where to draw the line, we are balancing the value of the expression against the harm or potential harm that expression can cause.
Differences over the value of various kinds of expression and over how to assess the harms are unavoidable, but that’s the real work of protecting a meaningful freedom of expression essential to a democratic society, art, and intellectual life. Deceptive labels and silly slogans don’t help us resolve the inevitable conflicts.
***
*A quick footnote for academics: I think this formulation is a more accurate way to make the point than Stanley Fish did in his 1994 book, There’s No Such Thing as Free Speech, and It’s a Good Thing, Too.
——————
This essay is adapted from It’s Debatable: Talking Authentically about Tricky Topics, published by Olive Branch Press.
Robert Jensen, an Emeritus Professor in the School of Journalism and Media at the University of Texas at Austin, is the author of It’s Debatable: Talking Authentically about Tricky Topics from Olive Branch Press. This essay is drawn from that book.
His previous book, co-written with Wes Jackson, was An Inconvenient Apocalypse: Environmental Collapse, Climate Crisis, and the Fate of Humanity. To subscribe to his mailing list, go to http://www.thirdcoastactivist.org/jensenupdates-info.html.
Enjoying the content on 3QD? Help keep us going by donating now.