Free speech, like democracy, prosperity, or community, seems to be one of those things that (virtually) everybody is in favour of. That certainly hasn’t always been the case (laws against heresy are a familiar part of our history), and few would doubt that there are contemporary political regimes that, beneath official protestations, in fact care little about the ideal (vividly illustrated by recent developments in Hong Kong). But these days you will be hard-pressed to find political or public figures who will openly disavow the ideal of free thought and expression. And it is (at least nominally) enshrined in the constitutions of quite a variety of states around the world (from the First Amendment of the US constitution, to Article 35 of the constitution of the People’s Republic of China). The universality of professed adherence to the ideal means that the term has long been a favoured watchword not only of journalists and anti-censorship campaign groups, but also of the far right. But the question of what exactly commitment to freedom of speech entails has returned to the forefront of public debate with the publication last week of an open letter in Harper’s magazine. The letter, signed by a group of prominent journalists, writers, academics and figures from the arts, decries the threat to ‘open debate’, the ‘toleration of differences’ and ‘free exchange of information and ideas’ posed by a vaguely described ‘new set of moral attitudes and political commitments’. This new set of attitudes is characterised as ‘censoriousness’, ‘an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex moral issues in a blinding moral certainty’.
The target of this letter appears to refer to what has elsewhere been labelled ‘cancel culture’, a perceived trend, primarily in the realm of social media, of mass shaming and ‘cancellation’ (in effect, boycott or disassociation) of those seen to hold morally unacceptable opinions or to have morally transgressed in some way. The letter also alludes to institutional responses to this supposed informal social pattern, such as sackings, constraints on journalistic or academic freedom, or withdrawal of books. It is not clear whether there really is any such trend that departs significantly from the previous norm, or whether what has really changed is just the prevalence and visibility of robust challenges to those in prominent social positions (like the letter’s signatories), as a counter-letter has suggested. But let’s set that question aside, for a moment. Supposing there is something genuinely new, an increased tendency for ‘cancellation’, or ostracism, of those with odious views, should we be worried?
One response we might have is to say ‘perhaps our freedom of speech is being constrained, but we have more important things to be worrying about’. It would be fanatical, or fetishistic, to take freedom of speech to be an absolute, always taking priority over other values or goods. It is old-hat, and basically common sense, to recognise that free speech can legitimately be restricted to prevent direct harm to others. The freedom to shout ‘fire’ in a crowded theatre is not a valuable liberty, and incitement to violence is usually taken to be similarly beyond the scope of a right to free speech. This exception is a part of jurisprudence even on the US’s notoriously rigorous First Amendment, and is a key idea in John Stuart Mill’s classic defence of liberty. Must it be so radical, or anti-libertarian, then, to think that harms done to social equality could sometimes be sufficient grounds for restricting speech?
But let’s also set this concern aside for now. We do care about the ‘free exchange of information and ideas’ and ‘open debate’ that the Harper’s letter writers are so worried about. And so, if these things are genuinely under threat, that is certainly worth noticing and taking seriously. But is it right to think that, supposing the social trends that the letter alludes to are real and novel, they constitute a threat to the ideal of free thought and expression that is so widely valued?
Informal social pressure
One thing that is distinctive about the Harper’s complaint is that it is directed at an amorphous and informal cultural pattern, or Zeitgeist, not at any formal laws or constraints backed up by the use of force or physical violence. The signatories are concerned about a ‘stifling atmosphere’, restrictions that come not from ‘a repressive government’, but from ‘an intolerant society’. The kinds of restrictions that come most naturally to mind when we think about freedom of speech are the repressive-government kind, not the intolerant-society kind: the clearest cases where our liberty of thought and expression are at risk are those in which the power of the state (or the threat of its use) is directed at banning or censoring a certain kind of communication (and constitutional protections of free speech, like the American First Amendment, are typically targeted at circumscribing the laws or coercively enforced policies a government can enact). The nebulous social trend the letter-writers are worried about is not at all the same sort of thing. And you might think that when we say we value freedom of speech, what we really mean is that we want our thought and expression to be unhindered by state coercion. We have what we need, on this view, so long as the machinery of government keeps its nose out of the spontaneous choices we make about what to think and say to each other.
But that doesn’t seem quite right. We restrict our attention a little too much if we fail to notice that state coercion is not the only social force that can be restrictive and repressive. John Stuart Mill, a century and a half ago, wrote about ‘the moral coercion of public opinion’. We know well that social pressure can be both demanding and hard to escape. And if we share any of Mill’s motivations for valuing freedom of thought and expression, we will have good reason to be wary not only of the tyranny of the sword or the gun, but also of the tyranny of social orthodoxy. For Mill, the protection of free speech serves several purposes. First, it is a means to the pursuit of truth and moral progress. To shut down the expression of a certain kind of opinion because we think it false would be to assume our own infallibility, and if we did that we’d most likely end up suppressing some truths along with the falsehoods. Second, freedom of speech ensures that our views are open to debate and challenge. Without this, Mill thinks, we will come to hold our beliefs only as ‘dead dogmas’: the unexamined life, Socrates famously said, is not worth living. To fully appreciate and grasp the reasons and grounds behind our commitments, we need the ability to critically reflect on them, and this, Mill tells us, is best promoted when they are open to contestation. And third, Mill subscribes to an ideal of individuality of character, of a good human life as one authentically chosen for one’s own reasons. If we share with Mill a concern for any of these things, it is clear that not only state power but also the pressure to conform can be worrisome. Social pressure is just as apt as law and police to suppress the truth, to discourage debate and critical reflection, and to lead us along a path unthinkingly adopted, not deliberately chosen. So the Harper’s letter gets one thing right, and makes a valuable point: we should be open-minded when looking for threats to free thought and expression. It is a little too simplistic to suggest that the ideal of free speech is not in question merely because nobody’s legal rights have been infringed.
But this is not a new point. For one thing, as mentioned, it is familiar from Mill. But for another, a very closely related point has been amply made by feminist and critical race theorists, who have brought to our attention structural sources of oppression and restrictions on freedom. It is by now well appreciated that subtle social patterns of behaviour can be unjustly exclusive, despite arising from the combined result of many individuals’ behaviour rather than any one person’s deliberate design. It is also well known that racist and sexist norms and practices can be oppressive precisely because of their tendency to silence or to undermine some people’s capacity to speak or communicate. So it is a little surprising, and perhaps alarming, that the letter is framed as a response to recent protest movements notable for the success they have had in promoting, and bringing into the mainstream consciousness, previously relatively unheard non-white voices.
Freedom of speech, equality, and silencing
Although the ideal of freedom of speech is not labelled as such on the tin, I presume that what we care about is in fact an ideal of equality. It is not the sum total of free speech that matters: we can’t compensate for taking away some people’s freedom to speak by giving more to others. (Freedom of speech is not better served by guaranteeing more or less total freedom to speak for 90% and harshly censoring the remaining 10% than by providing some moderate protection of free speech for all.) A society only lives up to the ideal if it guarantees the freedom to think and speak for all its members. But if that is the case, what does the ideal require if one person’s freedom to speak conflicts with another’s? The answer, I think, is easy: we live up to the ideal by equalising, as far as possible, the opportunities to speak that we care about.
This point about equality will only matter if what freedom of speech requires for one person can be in conflict with what it requires for another. Otherwise we could just remove all barriers to (non-harmful) speech for everybody. But it is quite plausible that freedom of speech is not like that. In other words, it does seem possible that sometimes my freedom to speak in a certain way might directly undermine your freedom to speak. If we recognise that subtle social patterns of behaviour can sometimes be restrictive, we can see how this might happen. Widely-held biases, or tendencies to discount or ignore someone’s voice or opinion because they are identified as, say, a woman, or non-white, or trans, or working-class, can constrain people’s ability to speak. If you are a member of a group subject to such a bias, you may often be unable to speak authoritatively, or to communicate in ways you would like to. To take one example, if a woman’s ‘no’ is not heard as withholding consent but rather as an invitation to sex, then she will lack the ability, and the freedom, to refuse. Similarly, if some social group’s attempts at political speech are just not taken seriously, members of the group will not be free to contribute meaningfully to political debate. In addition, the subtle biases and patterns of behaviour that can have these effects are in part created and maintained by the combined results of many people’s speech. Words that denigrate or demean someone for their membership of some social group contribute to and reinforce social biases that prevent members of that group from speaking in certain ways. In other words, it looks like speech of this kind directly contributes to undermining the freedom to speak of others. So, if that sort of thing happens, how do we best live up to the ideal of free speech? To adapt a famous aphorism, it seems that the free speech of the pike might sometimes amount to censorship for the minnows. And if the ideal is an ideal of equality, we ought to be looking out for the freedom of the minnows, not the pike. At times, then, freedom of speech itself might demand constraints on the freedom to speak of some.
 https://harpers.org/a-letter-on-justice-and-open-debate/  https://theobjective.substack.com/p/a-more-specific-letter-on-justice. See also http://dailynous.com/2020/07/09/illusion-agreement-debate-intolerance/  Despite some suggestions to the contrary, Billy Bragg seems to end up at this conclusion (https://www.theguardian.com/commentisfree/2020/jul/10/free-speech-young-people).  On Liberty, ch. 1  Some critics, at least when read uncharitably, seem to be saying something like this: https://newrepublic.com/article/158346/willful-blindness-reactionary-liberalism; https://amp-theatlantic-com.cdn.ampproject.org/v/s/amp.theatlantic.com/amp/article/614080/?usqp=mq331AQIKAGwASDYAQE%3D&_js_v=0.1#referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fwww.theatlantic.com%2Fculture%2Farchive%2F2020%2F07%2Fharpers-letter-free-speech%2F614080%2F  See, for instance, https://www.jstor.org/stable/41931810?seq=1 (behind academic paywall); and https://www.academia.edu/31138543/1993_Speech_Acts_and_Unspeakable_Acts