The Insoluble Problem of Free Speech

Michael P. Zuckert

Current Issue

The problem of free speech is once again upon us. On college campuses across America in recent years, there have been countless lectures, symposia, and impassioned demonstrations on the subject. Yet this fervor over free speech is nothing new. From time to time throughout American history, challenges to free speech have sparked heated and prolonged debate, with no obvious resolution. Indeed, the nature of speech itself may make it impossible to truly put such debates to rest.

In considering these debates, it must be noted that the norms guiding speech in America have not emerged solely from our Constitution or laws, but have developed in different ways in different institutional settings. Even constitutionally permissible violations of those norms can yield serious and damaging consequences. It is therefore worthwhile to carefully examine what the rules on speech in America consist of, and the potential ramifications of breaking those rules.

To provide some context to this discussion, we should look at another historical moment in which free speech came under scrutiny. Provoked by our national experiences in World War II and the Cold War, many people throughout the 1950s and '60s began to reconsider the nature and effects of free speech. Inspired in large part by a desire to emphasize the differences between us — a free regime — and the totalitarian Nazis and communists, there were significant developments in thinking about free speech, mostly in a libertarian direction.

Prominent liberals during that time, including Supreme Court justice Hugo Black and philosopher Sidney Hook, pushed for an expansive free-speech regime. Black often argued, for example, that the First Amendment supplies absolute protection for speech. As he wrote in his concurrence in Smith v. California, "That Amendment provides, in simple words, that 'Congress shall make no law...abridging the freedom of speech, or of the press.' I read 'no law...abridging' to mean no law abridging." The Supreme Court and much of the intellectual left broadly opposed many restrictions of speech that had long been taken for granted as valid.  

As a student and young professor during those years, I witnessed the virtual abandonment of the regulation of obscenity and pornography, the rejection of laws attempting to monitor or check communist speech and organization, and the landmark 1964 Court ruling against libel laws in New York Times Co. v. Sullivan. Back then, it was conservatives who pushed back against unfettered speech. There are certain conditions that must inhere in a decent society, they argued, which would be undermined by, for example, the free distribution of pornography. They also insisted that it made no sense to simply tolerate propaganda and organizational efforts by groups that had sworn to destroy the American regime — particularly groups allied with America's most formidable international enemy. In short, conservatives took a conservative position, and resisted what appeared to be a reckless expansion of liberty. Liberals, on the other hand, were champions of liberty, and thus stalwart defenders of the First Amendment and freedom of speech.

For those of us who lived through this free-speech free-for-all, the current moment is especially striking because of the reversals we are witnessing. It is now liberals who are often dubious of the general claims of free speech. They frequently sponsor speech codes, support shutting down speakers with whom they disagree, and discourage individual students from espousing a variety of views. In an equally strange development, conservatives are now inclined to defend the First Amendment, support robust free-speech protections, and promote open debate and the uninhibited exchange of ideas.

This shift, though undeniably interesting, is unrelated to broader and more central questions about free speech, particularly why it periodically becomes the focus of national debate. Indeed, neither conservative arguments in favor of free speech nor liberal arguments in favor of curtailing speech adequately address the conflict that is inherent to this contested right.

To begin properly "solving" the problem of free speech, we will need to identify what that problem is and why it keeps surfacing. This will entail studying the hybrid nature of speech. As we will see, speech's dual character may render any "solution" seriously imperfect. Further, different institutional settings call forth different aspects of speech's hybridity, with the result being that there is no perfect free-speech regime.

THE HYBRID CHARACTER OF SPEECH

Speech is a hybrid in that it partakes of both thought and action. Thought is inward, silent, and concealed. So long as it remains purely inward, it has minimal effects on the world. Speech is the expression of thought, whether vocally or via the written word or other forms of communication. Messages in a bottle, on a t-shirt, or in a gesture are all forms of speech.

Understood this way, speech is thought made flesh — made actual in the world, either visibly or audibly. Speech becomes a presence in the social world, and can directly affect those in it. Speech as thought made flesh is also a form of action.

The norms that govern these two elements of the hybrid are quite different. Thought is silent and concealed, but unrestrained. Since at least the Reformation, freedom of thought has been widely and deeply prized by any number of philosophers and political actors — including Benedict Spinoza, John Locke, and Thomas Jefferson — who have argued that thought should not be coerced because, strictly speaking, it cannot be coerced. The norm of untrammeled freedom of thought is also based on the belief that the proper end of thought is truth, and that freedom of thought is a necessary precondition for the pursuit and acquisition of truth. To seek truth implies that we do not possess it, or at least not all of it. We cannot know in advance which paths may or may not lead to truth. Our partial truths may not hold up when we encounter a more complete truth, and so we cannot settle on our current conceptions as fixed points, never to be questioned.

Speech as action is altogether different. When speech takes the form of an action, it affects others. A classic example is Justice Oliver Wendell Holmes's observation that yelling "fire" in a crowded theater could lead to panic and serious harm, even death. Libelous speech can damage the reputations and prospects of those being libeled. The speech involved in hiring a hit man to kill one's rival is surely a kind of action that cannot lay claim to the absolute freedom we claim for thought.

Thus, the norms that are applied to action are quite different from those that are applied to thought. Put simply, action, specifically harmful action, is subject to restriction and control. Presumably, the thinking goes, we can differentiate between harmful and non-harmful actions.

Here is where the problem of free speech arises, however. We have established that speech is composed of both thought, which ought to be free, and action, which ought to be suppressible when harmful. But there is deep uncertainty over which set of norms should govern expression — the action of speech — and to what extent. Attempts to address this problem frequently fail to take account of the hybrid character of speech.

Consider, for example, the absolutist position associated with Justice Black. He rested much of his case for complete freedom of speech on the text of the Constitution. But did the founders actually intend the sort of absolutism Black attributed to them? It has been argued, for example, that the "freedom of speech" referred to in the First Amendment was a term of art that did not apply to all forms of expression, such as libel, pornography, or blasphemy. And if the founders had, in fact, intended for the First Amendment to be understood as Black read it, we would still be free or even duty-bound to ask whether that is a sound standard. When speech is properly understood as a combination of thought and action, the absolutist position attributed by Black to the founders fails; it abstracts away the action side of speech, treating it as if it were pure thought and thus deserving of pure freedom.

In addition to his constitutional arguments, Justice Black and his allies also propounded claims about free speech that are more philosophical. On the whole, these resemble the claims of John Stuart Mill in On Liberty. That book's long opening chapter, "Of the Liberty of Thought and Discussion," discusses the correct scope of liberty in thought and speech. It is followed by chapters that discuss which principles ought to guide governmental and social responses to actions. That is, On Liberty presents a clear division between liberty of thought and speech on the one hand and liberty of action on the other.

Mill combined discussion and thought, distinguishing both from action. He treated speech as if it were entirely homologous with thought, and thus gave no weight to the hybrid quality of speech as sharing in both thought and action. This is significant because Mill assigned quite different norms to these two spheres. As he wrote in his opening chapter, "[T]here ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine." He later asserted that it is "imperative that human beings should be free to form opinions, and to express their opinions without reserve."

Mill then examined "whether the same reasons do not require that men should be free to act upon their opinions...without hindrance, either physical or moral, from their fellow-men." Mill, who was a sane and mostly sensible fellow, did not promote quite the same absolutist norm for action that he advocated for speech. Although he is known to have favored broad liberty of action, he granted two significant exceptions. First, his well-known "harm principle" established that actions that are harmful to the interests or "rights" of others are illegitimate, and may be punished by the state (though his conception of harm appears not to have extended to potential harms wrought by various forms of speech). Second, his "fairness principle" consisted of "each person's bearing his share...of the labors and sacrifices incurred for defending the society or its members from injury." This doctrine provides a basis on which a state may rightly tax its citizens or demand that they serve in the military.

In short, Black's absolutist, philosophical position on free speech appears to be drawn from Mill, yet the latter failed to adequately account for the hybrid character of speech. He viewed speech as entirely equivalent with thought and thus worthy of complete freedom — for example, by insisting that men should be free to express themselves "without reserve" — and dismissed the component of speech that is correctly understood as action.

Let us look now to the other side of the problem regarding free speech — instances where speech is treated wholly, or almost wholly, as action. In such cases, freedom of speech is not recognized or accepted. Recent examples include totalitarian or authoritarian regimes in which power is exercised on the principle that protecting the ruling person or party is paramount. In such a system, any speech that could threaten the rulers is considered to be a harmful act and can therefore be suppressed. 

In addition, leaders of totalitarian regimes frequently intend to implement some kind of large, socially transformative project — the creation of the egalitarian, classless society; the production of the master race; the bringing forth of a holy state — which might be threatened by free thought and speech. In such cases, an abstract commitment to free speech would be unthinkable for two reasons. First, the rulers of such systems proclaim a particular set of ideas as the truth, and shun the notion that further pursuit of the truth is needed. Second, any kind of speech or expression that is contrary to the official ideology could threaten the state's project.

Dictatorial governments are not alone in suppressing speech. Other types of regimes that are not strictly authoritarian or totalitarian may nonetheless be hostile to freedom of speech. In many traditional societies, free speech is rejected — or not even thought of — for quite different reasons. Take the case of Socrates. He was accused of two crimes that turned out to be very similar: corrupting the young, and either believing in gods other than those of Athens or not believing in any gods at all. Since the charge of corrupting the young consisted of bringing them to doubt the authoritative or prevailing opinions about justice and other crucial matters within the city, it amounted to provoking disobedience and thus impiety toward the city fathers. The charge regarding religious belief operated on a similar principle; the only gods that were deemed to count were the city's gods, and thus believing in anything else, or in nothing at all, was a treasonous form of disobedience or impiety. To challenge the great authorities who stood behind the dominant opinions of the city was to challenge the city itself.

Thus, there is not even a conceptual space for freedom of speech in such traditional societies; speech that does not accord with the authoritative opinions and associated institutions is ipso facto destructive. Neither is there room for a conception of freedom of thought, for the necessary truths are already known and incorporated in the authoritative opinions. Free speech necessarily constitutes a type of harmful action. 

RECONCILING THOUGHT AND ACTION 

Any meaningful solution to the problem of free speech — that it consists of both thought that should be free and action that should arguably be constrained in some cases — must take account of both the thought and action that inhere in speech. A proper orientation toward free speech must embody and be borne from reflection on the hybrid character of speech and the complex normative orders that derive from that hybrid.

There have been attempts to formulate doctrines or guidelines that govern speech while accounting for its dual nature. For example, some have suggested that regulating speech on the basis of time, manner, and place is legitimate, but regulating on the basis of a speech's content is not. This approach partially recognizes that speech is action, and focuses precisely on the act of speaking in a particular context as a behavior subject to control. But it treats the content of speech much as the absolutists do in that it fails to acknowledge that speech, precisely in its content, is a kind of action, and thus can at least potentially be subject to regulation.

Another approach that is somewhat responsive to the hybrid character of speech employs the well-known "clear and present danger" test. This test recognizes that speech can be or can produce action, and focuses on the exact moment when speech is about to become action. When the action is of a kind that authorities have a right to prevent or punish, they may step in the instant speech presents a "clear and present danger" of producing that action. While this approach is in many ways more promising than that which dismisses the content of speech as action, it too fails to note that speech, as opposed to thought, is already action and not merely a potential cause of action.

Moreover, measuring the imminence of a dangerous act is a clumsy and imprecise way to respond to the "action element" of speech. The harmful effects of speech may simply not appear in the world in the form of an immediate threat. Indeed, the dangers may be long term and subtle.

Nevertheless, the "clear and present danger" test sets us on the path we must follow if we are to sort out the complexities of free speech. In a liberal society like America, there is a presumption in favor of liberty of action as well as of thought. Naturally, only harmful action is of concern when formulating norms or guides for speech. The difficulty arises, as explained earlier, in determining what constitutes a harm resulting from speech.

Some harms are easy to identify, such as physical damage (e.g., hiring a hit man). But other claimed harms resulting from speech, many of which have featured prominently in debates on campuses, are more subtle and hence much more controversial. The ubiquitous example is offense. Many people object to certain exercises of speech because the comments in question are found to be offensive, either to individuals or to groups. However, many others refuse to recognize offense as a legitimate harm or to accord it any weight in discussions of free speech.

The institutional setting in which speech takes place can also affect the normative regime appropriate to it. Some speech — the sort we are most interested in these days — occurs on campuses, in the institutional setting of colleges or universities. Other speech takes place in the context of corporations or other organizations that have their own special aims, such as making a profit or curing an illness. Still other speech occurs in the family or in the larger public sphere we call the political society.

Each setting evokes a different aspect of the hybrid character of speech and in different ways. Accordingly, different norms for speech govern these different spheres. Speech that is perfectly acceptable in a family setting may be deemed inappropriate in a corporate environment. Because of this, it would seem that standards governing speech are highly circumstantial, making it very difficult to endorse any of the standard speech doctrines as universally valid.

To make at least some progress on the question of what norms should govern speech, then, it will be helpful to look more closely at the concrete problems that have emerged in various spheres of society. To begin, let us consider the issue of most concern today — speech on campuses.

SPEECH AND THE UNIVERSITY

For simplicity's sake, and because rather different considerations come into play when a school is state-supported, we shall consider only private educational institutions. To understand the free-speech regime that is appropriate to the campus, let us return to the thought aspect of speech. By its nature, thought is turned toward truth. As discussed above, none of us directly possesses the truth about the whole, though we may have opinions about the whole. But when confronted with opposing ideas, we may come to see that we do not have good reasons for holding certain opinions. In this way, thought is set on a quest for truth, a goal sought for both practical and theoretical reasons. The character of Western civilization has been distinguished in part by our self-conscious awareness of this quest.

From the time of Plato until now, with intermittent gaps, there have existed institutions specially dedicated to the search for and dissemination of truth. This is reflected in any number of college and university mottos, where the term veritas, truth, appears more often than any other. Harvard's motto, for example, consists simply of the word veritas, while Yale's motto, lux et veritas, light and truth, is shared by many other colleges and universities.

This orientation toward seeking truth through thought provides guidance for the proper campus policy on speech: an almost irrebuttable presumption in favor of free expression. Thus a thinker like Charles Murray, to take a not exactly random example, has a prima facie right to speak. But of course, the fact that speech in a university setting leans more toward the thought than the action side of things does not mean that speech in this context has no action dimension, nor that it can do no harm.

The institutional setting of the campus has been formed to favor freedom of speech, to the point where this freedom overrides many other considerations. This has meant that speech is primarily valued for and understood in relation to its thought dimension, while its action dimension has not been granted much weight. But the potentially harmful character of speech as action remains a reality even within the university. The harms related to speech ought to be addressed, though not, as has too often been the case recently, through blunt suppression of speech.

If there is a substantive risk of violence at a protest against a particular speaker, for instance, school authorities should provide adequate security rather than cancel the event. This solution is in keeping with the institutional setting of the campus. Of course, that is not to say it is perfect: There will always be a chance that things may get out of hand despite security measures, and adding security is expensive. Schools may also be subject to other forms of harm as a result of spending more on security — facing displeased donors, having less money on hand for other purposes, and so on. Prudent administrators may mitigate such costs, but the underlying challenges — the expense of security and the risk of violence — will remain. In other words, there is no simple fix for the problem of free speech on campus.

There are still other harms that the prevailing norms at universities may lead us to ignore or to address in some indirect way. The harm of offense, though dismissed by many, is often characterized by feelings of exclusion, alienation, or devaluation — all of which can genuinely harm individuals and undermine the university's role as a truth-seeking enterprise. Concerns regarding this harm have led many campuses to adopt speech codes or similar measures directed toward reducing offense, even though the normative standards governing speech on campus do not countenance shutting down speech.

A serious discussion exploring the morality of same-sex marriage should not be prohibited, for example, but neither should its potentially harmful effects be mocked. It is not merely "snowflakes" who may feel hurt, or even profoundly attacked or rejected, by a conversation that touches on matters of fundamental identity. Just as suppressing truth-seeking speech violates the university's norms, so does rending the spirit of community and friendship that provides the best foundation for a common inquiry into truth. In other words, while suppressing speech on campus is wrong, striving to mitigate the harms that speech can inflict is morally appropriate. Various practices that free-speech advocates today readily dismiss, such as "trigger warnings," "safe spaces," or the "right of response," are not self-evidently illegitimate responses to these harms.

The role of authorities on campus should not be to "fix" the particular problem of free speech in the university — and there is no decisive resolution. Instead, by encouraging tact, consideration, and tolerance, schools can help to regulate behavior and facilitate discussions among people who strongly disagree. In this way, they might even enhance the university's pursuit of veritas.

FAMILIES, CORPORATIONS, AND COMMUNITIES 

Of course, college campuses are just one type of institution in which speech takes place. In colleges and universities, the thought dimension of speech is predominant, and the norm of freedom of speech reigns supreme. The action dimension of speech remains almost an afterthought.

But what about other institutional settings, such as the family? While robust discussions of abortion and other sensitive topics are appropriate within the university, the family is not an institution in which the thought dimension of speech is pre-eminent. Families are charged with raising and mentoring a new generation, and not in the impersonal way of, say, a junior high. The family's role in caring for children is complex, in part because of the hybrid character of speech, but even more so because of the dual imperatives of parenting.

A family is a place for the formation of children, a means by which to help them become mature adults and thriving members of society. This formation requires a kind of direction and guidance, including the development of rational faculties and moral capacity. It depends as much or more on assertions of authority — "because I said so" — than on rational debate, especially when children are young. Parents also love their children and are thus concerned with their emotional well-being. Psychic harms that children may suffer are of much greater concern to the family than to the university, and the governing norms of these institutions differ accordingly.

The normative spirit of the family, then, is composed of parental authority combined with parental love and affirmation. This combination is necessary for children to grow into self-confident, functional adults. Expressiveness in the family tends toward the action side of speech hybridity, toward the effects of speech rather than the truth-seeking character of thought. For example, the caring and responsible parents of a gay teenager would not be likely to engage in the same sort of robust debate over gay marriage that might be welcomed on a college campus. But these norms are imperfect, too, because they may lead to affirmations that are more or less independent of the truth.

Recently, the institutional setting of the private corporation has also had to contend with fallout in relation to free speech, and it has employed yet another approach. In one example, the National Football League sought to suppress the public protest of a number of its players who had adopted the practice of kneeling while the national anthem played at the start of games. In a separate case, an offensive tweet posted by the actress Roseanne Barr caused an uproar that led the ABC network to cancel her eponymous television show. Some believe that one or both of these cases constitute an illegitimate suppression of speech, while others — myself included — argue that they demonstrate the appropriate normative standard for the institution of the corporation.

It is undeniable that both the players and Roseanne engaged in the action of speech. If they had engaged in the same type of speech on a college campus, it would likely be protected as "thought-like" and therefore free. The corporation, however, invokes a different set of norms.

The norms guiding corporations do not have an inherent direction regarding speech. Rather, their standards are almost entirely instrumental, rooted in whether speech enhances or detracts from their goals, which usually include profit-making. If customers or audiences take offense at speech that is associated with a particular organization, corporations are free — or even encouraged — to respond to that offense in ways that colleges are not. The action component of speech is dominant within the institution, and thus speech is evaluated in terms of its concrete effects.

A final example of an institutional setting in which speech is of concern is the broader political community, where the action side of speech predominates, though less completely than in the family or corporation. The norms of civic life clearly discourage, for instance, the famous Holmesian scenario in which someone cries "fire" in a crowded theater. And up until the late-18th century, it was generally thought that freedom of speech did not protect "seditious libel," which had been a crime in Britain. Criticism of the king — the fount of all political authority and the symbol of law and order in the kingdom — was considered to be harmful to the political community and therefore worthy of punishment. 

The doctrine that condemned seditious libel recognized that speech is action, and potentially very harmful action. As such, it was considered legitimate to regulate or suppress it. Thus the normative regime in England in past centuries was more or less at the opposite end of the "speech spectrum" from regimes that embrace freedom of thought and prioritize the thought component of speech.

The United States, as an heir to British legal and political norms, has a history of restricting certain types of speech. In 1798, the federal government passed the first national sedition law, aimed at protecting federal authorities from the criticism they had been receiving from the Democratic-Republican Party (led by Thomas Jefferson and James Madison). The law provided that "if any person shall write, print, utter, or publish...any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government...or to bring them...into contempt or disrepute...then such person...shall be punished by a fine...and by imprisonment." This was quite similar to British sedition laws and was widely thought to be constitutional despite the First Amendment. Like British laws, it treated speech critical of the government entirely as action, and harmful action at that. Such speech therefore had no legitimate claim to freedom.

The strongest argument against this law was put forth by Madison. It consisted of two parts, and led to the idea that speech in the institutional sphere of politics has a claim to freedom, though not quite as strong a claim as that which belongs to thought or even to the sort of thought-dominant speech that prevails on campuses.

The first part of Madison's argument acknowledged one premise of the sedition law, that speech is a type of action. But he challenged the notion that speech that is critical of government constitutes harmful action. Free play of speech is necessary in a republic, he argued, in order for the people to select their leaders wisely. The ability to criticize those in power is essential to democratic politics. Well over 200 years later, this argument still makes good sense to us.

At the same time, Madison pointed to the fact that speech is not solely action. It partakes in thought's quest for truth. The point of free and robust political exchange is to discover truths about matters relevant to governance. Even more so than in the institutional setting of the university, then, the inflicting of obvious harms through speech in the political sphere — such as damage wrought to the reputations or livelihoods of political opponents — is overlooked. This is not to say that the realm of politics can quite tolerate Justice Black's version of absolutism, but it is clear that freedom of speech is the dominant normative regime for political speech. Madison's rationale shows how this broad liberty for speech is specifically tailored to political speech, and does not necessarily apply to other types of speech.

To recapitulate, the family and the corporation each emphasize the action side of speech, with very different results. Parents may conceal certain "harsh truths" from their children, or provide them with not-quite-accurate affirmations, in order to help them succeed in fairly concrete and measurable ways. In other words, they contend with the effects of their speech on others. The corporation's concern with such effects often extends mainly to their bottom line: If speech displeases their audiences or consumers, they will attempt to arrive at some solution that will maintain their profits.

The political community, in Madison's ideal sense, strives to access truths, but does so in a rougher and messier and more damaging way than the university. Politics clearly emphasizes both thought and action. Political speech has obvious consequences, but can also bring us closer to the truth.

Recognizing the hybridity of speech and its role in various institutional settings can grant us insights into the complex normative orders that derive from that hybrid. But speech's hybridity also constitutes a perennial problem. The normative orders at play in each of the above-mentioned institutions will always be imperfect. The university, family, corporation, and political spheres each offer only partial solutions to the potential harms of speech, and cannot perfectly reconcile its action and thought components. At best, these partial solutions produce general rules for behavior that do not account for every nuance of speech.

Such rules can be invaluable, and often steer us well. But free speech will always pose some type of risk — of hurting people, leading individuals to embrace false ideas, or any number of other harms. In other words, there is no single agreed-upon ideal regarding speech, and no perfect order with which to guide it. Strictly speaking, there is no solution to the problem of free speech.

Michael P. Zuckert is the Nancy Reeves Dreux Professor of Political Science at the University of Notre Dame. His next book will be entitled A Nation So Conceived: Abraham Lincoln and the Problem of Democratic Sovereignty.


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