On the Value of (truly) Free Speech
by David Ottlinger
In the increasingly surreal unfolding of student protests across the country, the provost of Brown University attempted to address students demonstrating over the status of racial minorities.  Having just announced a $100 million dollar plan to increase diversity at Brown, the administration could reasonably have expected some good-will from student activists. Instead the provost was submitted to the same abuse that is becoming a familiar feature of contemporary student protests. “Can we just have a conversation?” he begins modestly. “NO” the crowd returns. Offering an explanation, a protestor proclaimed “Heterosexual white males have always dominated the space.” “Then I don’t count” remarks the provost. The protestor amends his statement. “Well, homosexual, it don’t matter. White males are at the top of the hierarchy. Cis gender white males are at the top of the hierarchy.” Because of who he was and because of his social standing, the provost was not allowed to speak. For the same reasons the protestor was. When I noted the provost’s name I almost laughed aloud. His name is Richard Locke.
It is likely that many will not see the irony. Very few people seem to know who John Locke was or the role he played in shaping the modern, Western world we live in. Just as few are familiar with John Stuart Mill, John Milton or Immanuel Kant. Certainly, even if aware of them, many people seem unpersuaded by their arguments. The pieces on the internet keep rolling in, with contents as disturbing as their titles: “The free speech delusion” “Quit with the ‘PC’ hysteria: College kids are not trying to steal your freedom of speech” and (my favorite) “’PC culture’ isn’t about your freedom of speech. It’s about our freedom to be offended”.  Nor is this sentiment restricted to the internet. Jelani Cobb, writing in The New Yorker, declared debate about free speech a “diversion,” perpetrated by those not serious about reform.  Likewise, criticism of protestors’ wildly uncivil behavior in The New York Times has been, shall we say, muted.  (Very often moving from respected journals of opinion to blogs to Youtube, I have the sense of listening to the same music first quietly, then louder and louder as though a knob were slowly being turned.) This is worrisome enough but perhaps even more so is the fact that the free speech defenders who have emerged from the smoke seem equally unwilling or unable to draw on the great thinkers of liberal tradition. Conor Friedersdorf has been a lion in defense of free speech and liberal ideals of debate and compromise, but nowhere in his work, as far as I have seen, does he make use of the rich intellectual tradition.  In an article on “political correctness” that caused a minor stir, Jonathan Chait managed to use the word ‘philosophically’, but did little to plumb the depths of liberal philosophical arguments and what they mean for our political moment.  In fairness to these writers (and others) whom I otherwise admire, they or their editors may not have felt that that discussion of “old, dead white men” would hold their readers interests. Depressingly, they may be right.
Depressing, because, like it or not, the conversation we are having is a philosophical one. As I have argued in the past and in these pages, some questions really are philosophical, whether or not those debating these questions choose to recognize it.  Particularly, questions are philosophical when they are made tractable only by philosophical arguments. A question is philosophical, then, when it demands a philosophical answer. In the case of free speech, the arguments for and against are paradigmatically philosophical. They concern abstract moral claims involving rights and duties. They are normative, a priori and conceptually driven. Nearly everything distinctive of philosophical discourse is strongly represented in them, and nearly nothing that would make them ambiguous cases. This being so, it would be reasonable to expect philosophers, past and present, to be consulted. And yet, this rarely happens.
I want to offer what little I may in way of corrective. There are many great works from which to pull. High points of the tradition include John Milton’s Aeropagitica, John Locke’s Second Treatise on Government and “Letter Concerning Toleration”, Immanuel Kant’s “What is Enlightenment?” and J.S. Mill’s On Liberty. I am informed by all these works, but I will be pulling mainly from the last. This is only natural, as Mill has enjoyed a unique kind of pre-eminence on the question of free speech. Just recently, philosopher of law Brian Leiter referred to Mill as liberalism’s “patron saint.”  The SEP article on freedom of speech gives Mill a pride of place rare for a single philosopher on such a broad question.  But more than his eminence, Mill offers us the concept that we most need in this political moment. I will call this Mill’s concept of “social censorship.” We need this concept particularly to combat the idea that freedom of speech is somehow limited to the law. In actuality, most censorship is not legal, but social. It is enforced by opinion, custom and discourse and results in the silencing of opinions and the elimination of debate. A society’s having free speech does not merely mean having legal protections for speech. A society’s having free speech means having a culture of free speech. That is exactly what is missing in American discourse today and is something our politics sorely needs.
Mill lived in a time when there was essentially no legal censorship. He did not need to fear, as Milton and Locke had, the interference of a hostile government. His strongly counter-cultural works were widely disseminated and debated without his suffering legal reprisals. Yet Mill was adamant that the England in which he lived lacked liberty. The problem he fought so ferociously against was not located in the country’s laws or institutions, but in its culture. Too often Mill’s descriptions sound chillingly contemporary: “In our times, from the highest class of society down to the lowest every one lives as under the eye of a hostile and dreaded censorship.” [10 58] On everything from habit to opinion, he saw men and women around him deferring to culture:
I do not mean that they choose what is customary, in preference to what suits their own inclination. It does not occur to them to have any inclination, except for what is customary. Thus the mind itself is bowed to the yoke: even in what people do for pleasure, conformity is the first thing thought of; they like in crowds; they exercise choice only among things commonly done: peculiarity of taste, eccentricity of conduct, are shunned equally with crimes. [11 58]
Mill had two basic objections to this society. The first is that it is lacking in the individuality and autonomy that Mill valued not only instrumentally but in themselves. He characterized it as lacking in vibrant and original forms of life and described its people as living “pinched and hidebound” human lives. [12 61] But, Mill also criticized such a society’s ability to function as a polity, including its ability to reform itself, to generate innovation and to discover novel truths. For the purposes of the present essay, I will be focusing on the latter aspect of Mill’s critique.
Mill’s argument is simple and easy to formulate. It begins with the simple observation that human beings are fallible. Even carefully considered and deeply held beliefs can — and historically often have — proven to be false. From there, most of the argument is captured in a single, famous quotation:
The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. [13 16]
Essentially, Mill makes three arguments against silencing speech, all hinted at in the above quotation. [14 50] The first is that a suppressed opinion may prove to be true. Of course it is always difficult to imagine our most strongly held beliefs turning out to be false, but Mill rightly reminds us of how often this has occurred in history. Mill reflects, “Mankind can hardly be too often reminded, that there was once a man named Socrates, between whom and the legal authorities and public opinion of his time, there took place a memorable collision.” [15 23] Of course now we are almost all on the side of Socrates. In fact one of the most entertaining aspects of reading Plato is realizing just what kinds of horrifying views (by modern standards) were commonplace and even commonsensical. The views that a Thrasymachus or a Callicles express casually and in public would stun most people today, but for them they were not only inoffensive but pious. Socrates challenged the most deeply held pieties and morals of his society. For patriotic Athenians he was a subversive blasphemer. He struck at every decency and everything that bound society together. Of course, Socrates and his students played a foundational role in the creation of Western Civilization, as we know it today, but the civic-minded Athenians no more knew their future than we know ours. Indeed, Mill’s own suggestion that women may be equal to men in civic and intellectual capacity was considered a shocking threat to the social order and made him the subject of great ridicule. Just as recently the moral merits and demerits of human slavery were a subject for serious national discussion. How certain are we entitled to be that our most sacred beliefs are true?
The second argument is essentially a special case of the first and concerns arguments which are only partially correct. Not only do we lose the insight of true opinions when suppressed, but we lose the partial insight of partially true opinions if we suppress them instead of examining them, critiquing them and separating the truth in them from the error. The third argument contends that not only does free debate establish what is true but encourages us to accept beliefs for the right reasons. Mill argues that “even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds.” [16 50] To argue this, Mill considers Christian morality. He (perhaps rhetorically) concedes that Christian morality is not only right but entirely right. Therefore, neither the first argument nor the second argument applies, as no opposing opinion would prove to be true or even partly true. But Mill argues that it still would be better to have argued and debated Christian morals than merely accept them as divinely sanctioned. Mill argues that because it was not debated, Christian teaching was often inchoate and obscure. [17 46-47] He also found it to be “incomplete and one sided,” in that it failed to incorporate a number of the insights of antiquity. [18 47] Objection and free argument would have doubtless revealed these inconsistencies and gaps, as these would almost certainly have been raised in the service of arguing against Christian morals. Christian rebuttals would then have attempted to meet these objections by articulating a more cohesive statement of doctrine and supplementing gaps with further argument. Argument, Mill believes, is the only way we can establish such coherence and completeness.
Mill hints at another reason why doctrines, even if entirely true would benefit from argument and interrogation. As seen above, Mill hopes such argument will produce “the clearer perception and livelier impression of truth.” Often, Mill seems to think that this “livelier perception” will lead to more politically engaged and committed populace. Mill’s concept of moral innovation is clarified when we consider his list of moral innovators. Those discussed at length include Socrates, Rousseau, the Protestant reformers and the Christ. Implicitly, he, as well as his contemporary audience, is undoubtedly thinking of his father and Jeremy Bentham. None of these examples is perfect or clear embodiment of his ideals and, in fact, no figure from history is a perfect embodiment of any ideal, but taken collectively they embody a certain tradition of universal moral argument. All of these figures made arguments about what good lives consist of and what is good to be done by people in general. Certainly, the reformers colluded with state power, but they also had certain egalitarian ideals, motivated by implicit and explicit argument. The Christ may also seem an odd example, but Mill treats him as a kind of moral philosopher, which makes better sense of how he was placed in this company. (I’m not certain such a view is supportable, but it makes sense of Mill’s argument.) Mill recognized that this is how change takes place in societies. Moral arguments change convictions, which change culture and, over time, governments and institutions. Mill had witnessed such rapid changes in his lifetime in the successes of the British political left, in which Bentham and his father had been leaders. Mill remarks on Rousseau’s arguments in favor of a simpler, more rustic mode of life. Mill thought that this had a healthy effect on his culture and was like to have more, “though at present needing to be asserted as much as ever, and to be asserted by deeds, for words, on this subject, have nearly exhausted their power.” [19 45] This remark reflects a certain gap between conviction and action but it also reflects an expectation that those who are willing to argue and debate their convictions are more likely to put their convictions into political practice. Arguments about convictions bring you in contact with the moral force of these convictions. This is the natural progression of events. Moral arguments change convictions which naturally express themselves in actions. It seems to me that modern examples, especially from the civil rights movements and as recently as the animal rights movement, reinforce this understanding of political change.
Of course, our society is quite distinct from Victorian England. Our censoriousness is not their censoriousness. The hostile and dreaded eye of censorship, in Mill’s, time impelled men and women to lead decorous, scandal-free lives of conformity. In our time, social pressures are more concerned with compelling people to walk a certain path of “political correctness” and right-thinking about a number of social and political issues. But Mill’s critique, I believe, remains highly relevant. The features of censoriousness that Mill was concerned to combat are still very much alive and well. Mill opposed the use of social pressure and disapprobation toward Victorians who behaved “eccentrically” or “scandalously.” He believed they should not be shamed or tarred, but reasoned with. If the society believes a person is behaving badly, it should not shame or silence them but present its arguments. If they are unconvinced, those arguing against them must walk away. Of course this is not what actually happened. When someone was believed to be a person of “ill-repute,” they received colder looks from their neighbors, they were disinvited from organizations, social calls ceased to be made, invitations disappeared, in short, life was made difficult. Social costs were imposed on “eccentrics” to enforce their compliance with social norms.  Meanwhile if the “eccentric” habit or opinion had some merit that went unnoticed as the eccentricity was not debated or entertained.
It is very clear to me that we have many of the same problems. We are very far from having the free and open debates for which Mill was calling. Instead we fall back on the same social censorship as the Victorians. Those deemed wrong-thinking must be “called out”, “held responsible” or “face the consequences” of their speech. Wrong-thinkers are not debated or offered reasons for their error, or if they are, only perfunctorily. The more important mission of many commenters and political actors is to make life uncomfortable for those who do cleave to the “politically correct” line. Mill asked that each citizen be able to argue and defend their view in the public square. Too many people, as the students at Brown, are instead simply shouting “NO!” For the reasons Mill points out, this makes us all the poorer.
To Mill’s first argument, I can’t say it fully persuades me. It is true that I can imagine, with some strain, being persuaded to give up even deeply held moral and political beliefs. But there are some beliefs I could not imagine ever adopting unless my conversion involved a sharp blow to the head. If I engage with a neo-Nazi, as some intellectuals do, it would presumably be to either de-convert some among them or dissuade those who might be sympathetic but unconvinced. But my motives would be purely political and not at all intellectual. I would not expect to learn anything from the engagement. Mill notes that people in the past have had equally deep conviction that some viewpoint is wrong and history has judged them to be mistaken. This is true but unpersuasive. It is like noting that once people believed with good reason and unshakeable conviction that the Sun goes around the Earth and now we believe that the Earth goes around the Sun. This is true but after the construction of the Hubble telescope, the development of modern astronomical theories, the flight of the Voyager probe and many, many other lines of evidence I cannot in any serious sense doubt that the world goes around the Sun. I may consider the fact that other people had the opposite belief when I consider epistemology but it in no way calls in to doubt my belief in heliocentrism. Likewise the fact that intelligent people were once convinced of the validity of a Nazi worldview does not seriously undermine my conviction that such a world-view is deranged and hopeless. With some ideas this far outside the norm I think that social censorship, dismissal and silencing is likely the correct path. However, as far as I can see, taking this path presumes that censorship is more politically expedient then debate. If it is less expedient, we only strengthen a very dangerous social force if we attempt to censor it.
On whole, however, Mill was right. There are many ideas on offer in our intellectual milieu that are shocking and even offensive, by ordinary moral standards. But we should be very slow to conclude that we know they will not turn out to be right. It was wrong to attempt to censor Peter Singer for defending acts that are repugnant to me, including infanticide.  Singer’s view is quite remote from ordinary views about morality and has a number of quite alarming consequences. Yet his account is well motivated, carefully argued and often difficult to refute. For that reason I believe we ought to take seriously the possibility that such a sense of morality could someday be vindicated. Likewise, undemocratic ideas should be given a fair hearing and serious debate and for the same reasons. Democracy has well-known imperfections and it is conceivable, though to me highly unlikely, that democracy could turn out in some future era, to be something considered as backward as monarchy appears to us. I must stress that I am quite strongly persuaded that Prof. Singer’s views on morality are mistaken and that some form of a democratic system is and will continue to be the most just. I believe it is wildly unlikely that I will be dissuaded of these convictions. But, as Mill points out, radical changes in moral and social concepts do occur and often they are crucial to the moral improvement of societies. If we do not take the difficult imaginative leap and question even our most strongly held beliefs, we risk suppressing radical critiques that could potentially be decisive steps forward in human society. There are also other reasons relating to Mill’s other arguments to permit these opinions to be debated but for the moment I want to say that this alone would be reason enough to tolerate them.
Mill’s second argument is more salient in today’s political environment. There is much that both the Right and Left could learn from each other, if they consented to a more profitable engagement. I often feel I have profited from engagement with views that I deeply oppose. On the issue of same-sex marriage, for instance, opponents of the concept often stress the importance of social bonds and shared, public reverence for family and marriage that often goes missing in liberal discourse which is too often afraid of appearing judgmental to state its own values. This can often be an antidote to a lazy “Let them be as miserable as we are” arguments, as well as more sophisticated but somewhat artificially “morally neutral” arguments from the Left.  Likewise, while I am deeply unpersuaded by the right-wing idea that most or all of the problems in the America’s black communities issue from a self-inflicted “culture of violence,” the right has a point in emphasizing social and cultural factors that may exacerbate the community’s problems and in bringing some influential and irresponsible actors on to some responsibility. The contrary view, which is perpetuated by many leading intellectuals and which holds that all of the problems in black communities are without remainder attributable to the environment, runs the risk of infantilizing black Americans, by depicting them as the helpless products of their environment.  Both of these arguments suggest a pattern that frequently holds. The Left too often emphasizes the importance of public institutions and forgets culture and individual autonomy, while the Right too often stresses culture and individual autonomy and forgets the importance of public institutions. Mill had a very lively sense of how these dialectics can be helpful:
In politics, again, it is almost a commonplace, that a party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life. Each of these modes of thinking derives its utility from the deficiencies of the other; but it is in a great measure the opposition of the other that keeps each within the limits of reason and sanity. Unless opinions favorable to democracy and to aristocracy, to property and to equality, to co-operation and to competition, to luxury and to abstinence, to sociality and individuality, to liberty and discipline, and all the other standing antagonisms of practical life, are expressed with equal freedom, and enforced and defended with equal talent and energy, there is no chance of both elements obtaining their due; one scale is sure to go up, and the other down. [24 45]
Again I must stress that I strongly believe that gay-marriage was rightly endorsed and that rectifying the state of black American communities will require public intervention. Neither am I suggesting a false equivalency between these arguments for and against. Given my position, I obviously believe one side is much stronger. My only point is that both sides can benefit from mutual engagement.
The most salient argument is Mill’s third. Reading the pieces I cited at the beginning of the essay, along with many others, there is a sense that the language of American politics is no longer one of debate but one of declamation. Martial metaphors abound. “Social justice warriors” and “culture warriors” do not expect to “exchange truth for error” or to compromise but to overcome, to over-power, to force submission. Many political writers seem to altogether lack the ability to make a serious political argument. Political gridlock cannot be far behind. These student protests are, I believe, a reflection of this. They are an odd mix of passion, engagement and complete political incompetence. They have the capacity to make considerable change, if only they could figure out how to go about it. Their lack of political ability perfectly mirrors what is missing in public discourse. They know how to declaim, but not how to make political arguments. I was first struck by this when watching a Black Lives Matter activist confront Hilary Clinton.  Here a former senator and cabinet secretary bent her ear to listen to protestors’ demands. What did he have to say? Well, he knew he wanted to say that Hilary (and Bill) Clinton were responsible for policies that contributed to the plight of black communities. But what were his demands? The Secretary could get no answers. The protestor was sure it was his time to speak—“you don’t tell black people what we need to know”—but was totally unsure of what to say. There was little for the Secretary to do but awkwardly give him a civics lesson. The scene virtually replayed itself at the president’s offices in Brown. The president and provost of an ivy-league institution patiently waited to hear protestor demands. What did the protestors have to say? This time they knew they wanted to disarm Brown’s private police force, almost certainly a political non-starter, but beyond that they listed very few specifics. They were sure that the president was ignoring their demands. They were sure the president was over-payed as one student discreetly pointed out: “You know your salary. I know you know your salary. That has seven digits, I know you know that number.” (In fairness the president probably did know her own salary.) Mostly they demanded that the president accept their demands—before they had submitted their demands. There was little for the president to do but awkwardly suggest they come together and actually finalize their demands. In both cases, students were doing as they were taught to do. Resist. Fight. Overcome. Don’t be silenced. The art of making compromises and articulating entitlements and obligations from a general point of view they knew nothing about.
Mill believed that in order to engender political change one must first change beliefs and convictions, which in turn elicit actions. Modern political actors like the students at Brown reverse the itinerary. They want to force actions and are only secondarily, if at all, concerned about changing moral beliefs. Even their arguments are meant to be appeal only to very definite subsets of the population. They seem to resent having to make any argument for anyone outside their own group—“you don’t tell black people what we need to know.” They refuse to make any case to the provost. On Facebook, as recorded in the Daily Beast article, one student wrote on the protestors’ Facebook page: “This is NOT a space for white students to be offering their opinions for the ‘issues’ they take with the consolidated, working list of demands. People have been building on them for months and have very specific reasons for their asks, but it will never be your place to criticize them. No student of color want [sic] to engage with the foolishness they have seen on some of these comments…” They emphatically reject the idea of responding to arguments from anyone outside their group to anyone inside their group (the Facebook post) or of anyone inside their group making arguments to anyone outside their group (“CNO” to the provost). It is as if each group has its own private moral reasons for itself that count for themselves but no one else. The problem is that his is not how societies change. Or at the very least this is not how liberal democracies change. For political actors to be effective, they need to present claims that are, if not universal, general enough to compel others’ actions. Lacking such claims, the students will continue to be unable to articulate and argue for demands.
I have said a great deal but am more struck by how much remains to be said. There are many more arguments to consider, many more objections to be met. Above all I hope to have done something to leave two impressions. The first is that there is much more to free speech than the law. The law is only one part of our politics. At least as important is our culture and the way we debate philosophical issues. The second is that classical philosophical arguments can do a great deal to inform our politics and the society we want to see. In the tradition in general and Mill in particular we have a vision of a culture of tolerant, temperate and rationally engaged citizens. Sadly, we are still well short of that ideal. At present we have laws which allow us the space in which to have such a debate, but not a citizenry willing to have those debates within that space. The law only allows us the possibility of free speech. Only when we have a culture that attends to the ideals which underwrite such laws can we be said to truly have not the possibility, but free speech itself.
 Conor Friedersdorf writes for The Atlantic. A few representative pieces of his work on this subject:
(The last is a response to the Cobb piece listed above)
 Mill, J.S., 1978. On Liberty, Indianapolis: Hackett Publishing. p58
My citations refer to the standard Hackett version pagination, also used in the SEP article. On Liberty is available free online from a number of sources:
 p. 61
 p. 50
 p. 23
 p. 50
 pp. 46-47
 p. 47
 p. 45
 This kind of treatment is well chronicled in the literature of the period, including works of Charles Dickens, Edith Wharton and William James. An especial favorite of mine is James’ “Daisey Miller”
 Particularly interesting on this is Michael Sandel:
 This issue has been discussed at length by Glenn Loury and John McWhorter over at Bloggingheads.tv:
 p. 45
“This is NOT a space for white students to be offering their opinions for the ‘issues’ they take with the consolidated, working list of demands. People have been building on them for months and have very specific reasons for their asks, but it will never be your place to criticize them. No student of color want [sic] to engage with the foolishness they have seen on some of these comments…”