Smith on Debating Freedom of Speech

Wednesday, February 14, 2018

Philosopher Tara Smith has just published a timely and much-needed corrective (PDF) to the ongoing debate about freedom of speech. Although this has been published in an academic journal, the combination of the subject matter and Smith's clear writing will make the material accessible to any intelligent reader. Since I strongly recommend reading it, let me add that you should not be put off by its nominal length of 34 pages: In addition to this article being a pleasure to read, these are small pages and often only partially filled by the main article, with the remaining space for footnotes. These, although often interesting, can be skipped.

If you've ever had a conversation with someone about freedom of speech and been perplexed by, say, nonchalance about censorship or an odd conflation of the content of speech with the idea of freedom of speech, this article is especially for you: You are probably well aware that people are confused about at least one aspect of this vital debate, and you will likely profit from Smith's clarity regarding what people are confused about, how widespread the confusion is, and what is causing the confusion. I'll provide a few excerpts below, but even these won't do justice as a teaser. But perhaps they'll show why I think that if you share my concern about our continued ability to enjoy the right to freedom of speech, you should read this piece in its entirety. Its title is, "The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech."

Even if one is aware that many or most people have serious misconceptions about freedom of speech, Smith may surprise with some of her examples of intellectuals and opinion leaders offering muddled opinions on the matter. Noting that "not only rubes" use the terms "censorship" and "freedom" pliably, Smith provides an example from academia:

[I]n a recent law review article, Brian Leiter argues that, because much of what people have to say is of little value, we should temper our adoration of free speech and rein in its protection. In support, Leiter reasons that "[t]here is no free speech in the courtroom [where speakers must adhere to rules of admissible evidence and the like], and (almost) no one thinks there should be." We also accept restrictions on speech in classrooms and scientific research; therefore, he concludes, we would be justified in placing legal restrictions on all speech. Unfortunately, this, too, relies on a flagrant equivocation -- this time, between freedom of speech and standards of constructive speech. Freedom is not immunity from all standards of judgment (such as standards of logical strength, probative relevance, or pedagogical import). Rather, it is the absence of coercion; one's speech is free when it is not forcibly restricted by other people. [footnotes omitted, bold added] (71)
The number and severity of Smith's examples are, fortunately, matched by her clarity about what is going on. Shortly after the above comes the following list of "Confusions Concerning the Referent of 'Freedom' of Speech":
The point is, people sling around the phrase "freedom of speech" to mean several different and often inaccurate things.

An inventory (which is not necessarily exhaustive):
  1. People confuse the absence of external coercion of speech with the absence of normative standards' applicability to speech (such as in Leiter's reasoning).
  2. People confuse freedom of speech with the quality of speech -- with its objectivity or truth or wisdom, for instance (as in [Bill] O'Reilly's remark about a free press).
  3. People confuse freedom of speech with the value of speech or with the value of a particular thing that is said. Yet the fact that a particular person's speech makes no positive contribution to the advance of knowledge or to the resolution of a question tells us nothing about whether his speech is free. (Leiter's contention that we should rein in freedom of speech because much speech has little value reflects this confusion.)
  4. Closely related, people confuse the value of speech with the value of freedom of speech. Yet in fact, the value of a particular exercise of the right to speak (e.g., of Jim's particular utterance at the meeting last Friday) does not dictate the value of his, or of anyone's, having the freedom to say what he likes. The value of particular instances of speaking is not identical with the value of freedom of speech -- of that general condition.
  5. People often mistake freedom for license -- for the prerogative to do as one pleases, subject to no boundaries whatsoever. This notion is implicit in [Steven] Pinker, [Jeremy] Waldron, [Eric] Heinze, and [Emma] Teitel, for instance, each of whom viewed legal limits as exceptions to free speech that demonstrate its not being absolute. In fact, these would be exceptions (abnormalities) only on the supposition that the governing norm should be utterly boundless, that respect for true freedom demands allowing individuals carte blanche. Yet as John Locke recognized, "[f]reedom is not, as we are told, [a l]iberty for every [m]an to do as he lists: (For who could be free, when every other [m]an's [h]umour might domineer over him?)." And this mistake is linked with yet another.
  6. People often overlook the fact that "speech" is a wider category than "freedom of speech." "Speech" does not mean "freedom of speech."
    Image of inscription of First Amendment via Wikipedia.
    Indeed, it is for this reason that the First Amendment decrees that "Congress shall make no law . . . abridging the freedom of speech" rather than "no law abridging speech." "Freedom of speech" refers to a specific subset of speech: of all the speaking that a person is capable of engaging in, it is that portion that he may rightfully engage in (i.e., without infringing on others' rights). The Amendment's language respects the difference between that which a person can say and that which a person is entitled to say. Correspondingly, the fact that a person's speech is restricted does not entail that his freedom of speech is restricted. It might be or might not be, depending on whether the restricted speech falls within his rightful freedom of speech, that is, the speech that he is entitled to engage in. And in light of this, we should be able to appreciate a final confusion:
  7. People sometimes treat the ability to do something interchangeably with the freedom to do that thing. This is reflected in the complaints that because a person can no longer use Facebook or broadcast his political views at work, his rights are violated. On just a bit of reflection, it is easy to see that there are plenty of things that a person is unable to do that he remains free to do. I cannot speak Polish, as it happens, and I do not know how to juggle, yet no one has interfered with my freedom to do either. Had I wanted to learn, I have been free to do so. My inability results from factors other than others' coercion. Admittedly, other people play a more influential role in a person's inability to broadcast his beliefs through certain media (T-shirts at work, on Facebook, etc.). Yet those uncooperative people are not coercing him. His freedom is intact, although his desires may be frustrated. For freedom does not mean: "I get what I want." (Again, such a notion of freedom could only be fulfilled by trampling on others' freedom. It is thus not an internally coherent conception.) The larger point is simply that an inability does not entail a lack of freedom.
In short, this inventory makes plain that we often employ the term "freedom" of speech indiscriminately. We use it to refer to a range of phenomena that are actually distinct. [footnotes omitted, format edits] (71-74)
There are more kinds of serious confusion about freedom of speech than you probably think. And they are more widespread among intellectuals and pundits than you might imagine. Likewise, even if you appreciate the importance of freedom of speech, you will likely find even more reasons to insist on a clearer debate. I will leave here with Smith's warning about the danger attendant to the widespread, sloppy use of the term, "censorship":
The danger, in short, is the normalization of censorship. Whether or not that term is used, this is what takes place under a bloated conception of "freedom" of speech and under the latitude granted by the rejection of absolutes and the embrace of exceptions. Such normalization is not simply a far-off possibility. It occurs already. When an FCC Chair declares that, "there is censorship by ratings, by advertisers," conveniently excusing unwarranted government restrictions by effectively pleading, "don't object to the government for censoring -- we all censor, it's all the same," this is normalizing. When a Wall Street Journal columnist criticizes Google and Facebook for "excessive censorship," implying that some censorship would be fine, this is normalizing. [notes omitted] (p. 81)
I highly recommend reading this piece thoroughly, first as a means of improving one's own thinking about the matter (including Smith's indication of where the confusions originate), and second, to be able to recommend it to others intelligently.

-- CAV

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