Free Speech and Its Limits

The free exchange of ideas

Mill’s On Liberty (1859) gives the classic case. A silenced opinion may be true; even a false one usually contains part of the truth; and an accepted truth that is never challenged becomes “dead dogma”, held without understanding. Mill feared more than state censorship: taking up Tocqueville’s warning about the “tyranny of the majority”, he argued that protection is needed also “against the tyranny of the prevailing opinion and feeling”. Only harm to others justifies coercion, and offence alone is not harm. Today’s critics of “cancel culture” and civil libertarians such as Nadine Strossen (HATE, 2018) argue in this tradition that the answer to bad speech is more speech, not punishment or exclusion.

Held by

• John Stuart Mill1806–1873
• Alexis de Tocqueville1805–1859

Dignity and the harm of hate speech

Jeremy Waldron (The Harm in Hate Speech, 2012) argues that the debate is wrongly framed as one about offence. Hate speech – leaflets, posters and posts that depict a group as vermin or criminals – attacks a public good: the assurance every member of society needs that they will be treated as an equal and can go about their lives without fear. Laws against the defamation of groups, as most European democracies have them, protect this dignity; they target the visible, lasting defacement of the social environment, not opinions as such. Ronald Dworkin objected that such laws damage democratic legitimacy: laws can only fairly bind citizens if everyone, including those with hateful views, has been allowed to speak against them.

Speech that subordinates and silences

MacKinnon (Only Words, 1993) argues that some speech is not merely the expression of ideas but an act: pornography and harassment, on her view, subordinate women and so belong under the law of equality, not only under the law of free speech. Rae Langton (1993) gave the argument a basis in speech act theory: words can rank people and legitimate discrimination, and they can “silence” others by making it impossible for their utterances to count as what they are meant to be – as when a woman’s refusal is not taken as a refusal. Judith Butler (Excitable Speech, 1997) shares the concern about injurious speech but rejects the remedy: laws against it hand the state a power it has often used against minorities, while words can be resignified and turned back against those who use them to wound.

Held by

• Catharine A. MacKinnonb. 1946

The limits of tolerance

Popper formulated the “paradox of tolerance” in 1945: “Unlimited tolerance must lead to the disappearance of tolerance.” A tolerant society may therefore claim the right to suppress the intolerant – but, Popper added, as long as they can be countered by rational argument and kept in check by public opinion, suppression would be most unwise; the right applies when they refuse argument and answer it with violence. Marcuse’s “Repressive Tolerance” (1965) goes much further: in a society shaped by unequal power, neutral tolerance protects the status quo, and “liberating tolerance” would mean intolerance towards movements from the Right and toleration of movements from the Left. Liberal critics object that this gives whoever claims to know the direction of history the authority to decide who may speak – the very power free speech is meant to deny to anyone.

Held by

• Karl Popper1902–1994
• Herbert Marcuse1898–1979

Academic freedom is not free speech

Robert Post (Democracy, Expertise, and Academic Freedom, 2012) argues that academic freedom protects something other than the equal right of every opinion to be heard: the freedom of scholars to pursue knowledge according to the professional standards of their disciplines, independent of governments, donors and university leaders. A university must judge, rank and exclude ideas – in hiring, grading and peer review – and that is its task, not censorship; what threatens it is political pressure, from whichever side, taking the place of scholarly judgement. Weber had already warned in “Science as a Vocation” (a lecture of 1917) that the lecture hall is no place for political prophecy, since the students there must keep silent. Critics reply that disciplinary standards can themselves harden into orthodoxy, so that dissenters within a field need the wider protection Mill defended.

Held by

• Max Weber1864–1920