5 Questions for Free Speech Fetishists

Look, I get it.

As a writer and educator who makes my living speaking all over the country (at least virtually these past couple of years), I consider the First Amendment an invaluable instrument.

But that doesn’t mean that I don’t recognize its limits.

Nor does it mean that there aren’t legitimate questions about its application or how we balance freedom of speech with other Constitutional protections when they conflict.

And frankly, everyone believes in limits to free speech — even crypto-bro libertarians who think Bitcoin will replace currency and Ayn Rand wrote good novels.

They may be stupid, but even they don’t believe in completely unrestricted free expression. Even they don’t advocate protecting libel, slander, plagiarism, perjury, or the unauthorized release of confidential financial and medical information.

So too, incitements to imminent violence, false advertising, verbal harassment, and child pornography, among others. All of these are speech acts that everyone agrees can be prohibited.

Ok, so maybe the Bitcoin bros don’t have a problem with false advertising — their entire investment model relies on it — but you get my point.

There are several questions I’ve long had about free speech to which I don’t have settled answers. And I’m genuinely curious as to yours, especially if you come down on the side of untrammeled free expression.

1. If colleges can’t be forced to hire bigots for faculty positions, why should they have to allow them as guest speakers?

Lately, there has been much debate about certain speakers on college campuses. Should white supremacists like Richard Spencer or David Duke be allowed? How about internet trolls like Milo Yiannopoulos or right-wing flame-throwers like Ann Coulter or Ben Shapiro?

Yes, there are significant differences between Spencer and Duke, on the one hand, and Milo, Coulter or Shapiro on the other. But the principle remains the same: should colleges be able to bar specific speakers, and if so, on what grounds?

Free speech purists would typically argue that limiting speakers based on viewpoint is inappropriate and unconstitutional (at least for public colleges). But colleges are not places of entirely free speech.

If they were, academic departments would be obligated to hire flat Earth or young-Earth creationists in the geology department. History departments couldn’t discriminate against Holocaust deniers.

Academic standards guide these hiring decisions. Those whom the university pays for their wisdom are determined to possess it to the satisfaction of their peers in their respective disciplines.

And even if an applicant to the history department produces “scholarship” suggesting the Holocaust didn’t happen or the Earth is 10,000 years old, no college would be wrong for rejecting that applicant.

Academic institutions can and should defer to the recognized range of accepted scholarly opinion in the fields taught on their campuses. And if that excludes fascists, white supremacists, misogynists, or other bigots, so be it.

But if college departments can make those calls, why can’t the larger institution?

Why should guest speakers lacking credentials — or the respect of those who teach in disciplines pertinent to their work — be allowed to speak on campus, especially for a fee (which confers legitimacy), when departments could exclude them?

And if colleges are places of community-building, with mission statements involving the development of mutual respect, why should they be required to host speakers whose messages are rooted in disrespect for persons based on race, ethnicity, religion, sexuality, or gender?

These are valid questions, rarely addressed by free speech fetishists.

2. When do free speech rights infringe on the right to equal protection? And how do we balance these when they conflict?

Some seem to think the First Amendment outweighs all others because it comes first, as if chronological order reflects relative importance.

But this is absurd.

The right not to be enslaved isn’t less important than the right not to have troops stationed in your home against your will just because the framers handled the latter in the Third Amendment, while it took another century and a war to get the former.

And so, it’s logical to ask how we balance free speech with something like equal protection, enshrined in the Fourteenth Amendment, when these things are in conflict.

For equal protection to have substance, it has to mean more than just equal application of the law. Substantive equal protection requires equal access to the institutions created and governed by laws, like schools and workplaces (at least public ones and those receiving public funds or engaged in interstate commerce, subject to regulation by the state).

If bigots can operate freely in a workplace or school, at what point does such tolerance infringe on the rights of students and employees to enjoy equal protection and access to those spaces?

If hate speech creates a hostile environment, at what point is that violative of the equal protection requirements of the Constitution?

Although this is a difficult question about which reasonable people can disagree, the question is important.

3. Is there a difference between formal and functional free speech? Which matters most?

Along these lines, is freedom of speech a formal requirement or a consequential one? If it’s largely a formality, most anything could be said, regardless of consequence. That is one approach: freedom of speech as a process issue.

A consequentialist approach would explore the net result of such tolerance to determine if it might inhibit speech overall, counter to the purpose of the First Amendment itself.

This is the classic question about whether we must tolerate speech by Nazis or other fascists, given their admission that they would abolish free speech, free press, and rights of assembly, among others, if they came to power.

If, by tolerating their speech, we marginally (or substantially) enhance their strength, support base, and power, can we still say we are defenders of free speech, functionally? Does the potential net result of our tolerance not figure in the equation?

Is the First Amendment a potential suicide pact, whereby if it results in its own abolition, oh well?

Or should we be able to impose restrictions on speech from those who believe in smashing the Constitution itself, in the interest of maximizing functional liberties for all?

Again, reasonable people can disagree, but it’s not as easy a balance to manage as the fetishists would have us believe.

4. If personal libel or slander isn’t protected, why should group libel or slander be?

Most all agree that the First Amendment doesn’t protect the right to defame others. I cannot accuse you of being a criminal or engaging in nefarious activity when you’re not and when I have no substantial basis for believing the claim to be true.

So, why is it protected speech to engage in libel, slander, and defamation against entire groups — accusing them of illegal and immoral behavior based on group identity?

If I couldn’t get away with accusing you, personally, of making Matzoh with the blood of Christian children (when you’re doing no such thing), why should I be able to accuse Jews as a group of doing this?

If I couldn’t get away with accusing you of being a violent criminal (when you’re not), why should I be able to accuse Black people as a group of being violent criminals?

If I couldn’t get away with accusing you of being a terrorist (when you’re not), why should I be able to accuse Muslims, writ large, of such?

If I couldn’t get away with accusing you of being a pedophile (when you’re not), why should I be able to make blanket statements about gay men or trans women being such simply because of their identity?

Allowing group libel when we disallow personal libel may currently be a distinction in the law. But why? It’s a question rarely engaged by those who consider themselves free speech absolutists.

5. If the point of free speech is the search for truth, why can’t the deliberate spreading of falsehoods be prohibited?

Practically and philosophically, the purpose of free speech has always been the so-called search for truth. Speech was not some abstract value to be maximized for its own sake but a tool to help shape a more informed society.

But if the purpose of speech is the search for truth, why are clearly discernible lies protected?

By definition, deliberate falsehoods are not intended to further the search for truth. They are weaponized for the purpose of clouding it.

To accuse folks of witchcraft and blame them for illness in colonial Salem or to accuse Asian Americans of a pernicious intent to spread COVID is to traffic in blatant falsehood, with no truth-seeking purpose.

The same is true with false claims about the 2020 election. It is apparent that most Republicans know Donald Trump lost, but they continue to prevaricate — to feed the conspiracizing of con artists — out of political fear.

Why should spreading known falsehoods be protected speech?

If I engage in false advertising for a consumer product, I can be punished, but if I engage in false claims for political gain, it’s acceptable?

. . .

I realize that, as of now, these questions have been answered by the courts, typically in ways that favor the absolutist position. I also realize that decent arguments can be made for those interpretations.

But it isn’t enough to argue, “the courts say x,” and be done, as if existing jurisprudence is inviolable.

These are philosophical matters as well as jurisprudential ones. And philosophically, we rarely grapple with them.

Free speech fetishists go to one corner, insisting that any restriction on speech is a “slippery slope” despite no historical evidence to suggest this and much to contradict it.

In the other corner, we find eager restrictionists, prepared to shut down any speech they find offensive, unwilling to acknowledge how easily the state can abuse such restrictions.

For me, I’m pulled to both corners at times, uneasy with either as a permanent home. And I suspect many others find themselves in the same place.

So in the interest of the search for truth, let’s engage these questions openly.

The future of the country may depend on it.

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This post was previously published on AfroSapiophile.

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