On Free Speech

Freedom of speech, as it usually does when politics gets turbulent, is having another moment. Even eight weeks ago, the Standard Narrative went something like this: traditionally stalwarts for civil liberties, the left made a power play starting in Obama’s second term where they “canceled” anyone who endorsed Disfavored Ideas. Cancellation involves not extending invitations to speak at events on the mild end, and social media mobs pressuring an employer to fire the cancelled on the more extreme end. The Right eagerly claimed the mantle of ‘free speech defenders,’ and an entire cottage industry emerged to rehabilitate the ‘unjustly cancelled’ via the online/small donor media ecosystem. The high point may have Bari Weiss coining the term ‘intellectual dark web’ for these intrepid dissenters.

The Standard Narrative is no longer viable. Two recent events have shown that fealty to free speech on The Right was simply convenient talk. This isn’t exactly news to some people; there has also been a minor cottage industry in Pointing Out Free Speech Hypocrisy, e.g. with pieces like this one.

The first telling moment came from the Trump administration’s DEI purge of the federal government, which has been conducted with the care and elegance of an elephant in a glass factory on cocaine. I’m sure we have very good reasons to be taking down information about famous bombers and medal of honor winners from WWII, and that it is not the product of some mindless algorithmic sweep. But the kicker, for free speech purposes, is the new index verbum prohibitorum. I personally can’t think of any good reason a grant proposal should mention ‘advocate,’ ‘disability,’ or ‘woman,’ but those nefarious scientists keep trying to study these things.

The second telling moment came with the arrest of Mahmoud Khalil. Khalil is a student at Columbia and seems to have played a key role in organizing the pro-Gaza protests there. He was arrested in the dead of night and spirited off to a holding site on the other side of the country. He still has not been allowed a proper (private) consultation with his lawyers. He seems to have genuinely terrible political opinions, in support of Hamas and its penchant for indiscriminate murder. But he is a green card holder. He has constitutional rights like every American (yes, I am counting permanent residents as Americans). The legalities of his case are more nuanced than you might hope or expect the legalities of ‘disappeared into the night by gun-toting goons for wrongthink’ to be. But the idea that one activist whose protests had a viral news moment but precisely zero effect on US foreign policy (which is if anything even more pro-Israel now than it was when the protests began) constitutes such a threat to the national interest that he deserves the black bag treatment and an exception to the first amendment is preposterous. Khalil is basically the poster child for Voltaire’s apocryphal line “I disagree with what you say but I will defend to the death your right to say it.”

Unlike the car salesman who will sue for not advertising on his website, I do not claim to be a free speech absolutist. In my way of thinking, there are basically two good arguments against restrictions on speech.

The first is a natural rights/reserved liberties argument. Humans have a natural right to express themselves in virtue of their intrinsic value as thinkers. Laws ought to only restrict this for good reasons. The default on an expression should be ‘allowed’ unless it generates some obviously-offsetting harm. This is usually where people bring up shouting ‘fire’ in a crowded theater, which is actually way more complicated than you might think. A better case of obviously-bannable speech is pointing to someone on the street and yelling ‘$10,000 to whomever kicks this person’s ass first.’ But the vast majority of expressions do not create these obviously-offsetting harms, and so the law has no business banning them.

The second is a positive argument and is roughly the one Mill gave with his marketplace of ideas. If we make it easy to go around punishing people for what they say, they will not say true things that are unpopular. Saying true things is valuable especially when the true things are unpopular. So we should make it difficult to punish people for what they say. This argument works regardless of what you think about natural rights and their relationship to the law, but it does depend on some empirical claims.

Neither of these arguments establishes free speech absolutism. There are, in general, few (or no) absolute natural rights. Even the rights to life and liberty don’t extend to extreme cases. I can kill you for trying to kill me. I can lock you up for trying to kill me. Further, the value of people saying true things can be balanced off by other bad consequences of unrestricted speech. The idea that truth always wins in a fair fight was always a bit disconnected from facts in the ground, but in the era of media fragmentation and ‘flooding the zone,’ it is downright naïve. Mass media and modern propaganda are incredibly effective.

In fact, I think some speech that is currently legal should not be. I am thinking specifically of death threats and other speech acts aimed purely at harassing the victim. David French’s experience at the hands of the alt-right is horrifying, and there should be legal penalties for the people behind it. Notice that neither of the two main arguments for free speech covers death threats/harassment. They have offsetting harms that obviously outweigh any potential expressive right, and they are not unpopular truths that should be given voice. They’re just a beating by other means.

But Khalil’s speech does fall within the aegis of the second argument. I disagree with him about Hamas. But it is the kind of thing someone should be allowed to say. Given the USAs disproportionate resources and influence, which countries we back in foreign conflicts is hugely consequential, and we have a very spotty track record in that regard. We backed the good guys in the world wars but have supported a lot of baddies over the years, especially in South America. It’s healthy to have a robust opposition when the US decides to put its thumb on the scales of a foreign conflict. Now, on the first order questions, I have definite sides and opinions (for the record: pro-Ukraine, pro-leaving-the-Middle-East-to-its-own-devices).

But that is not the point. The point is that we have an administration that will run roughshod over speech it dislikes. It will do this to citizens, such as scientists just trying to learn about the world, if the thing they want to learn is an ideological no-no, and it will do this to guests and permanent residents, if it has a legal fig leaf like the vague national security law they’re invoking in this case. One need not be a free speech absolutist to think that this is dangerous. And wrong.