Is Free Speech Possible?

In the United States there is a very distinguished professor at the University of Pennsylvania Law School named Amy Wax. She is also a medical doctor. Both her law degree and her medical degree are from Harvard, and she won a Marshall Scholarship to Oxford. As I say, she is very distinguished. Professor Wax has a history of speaking her mind on sensitive subjects. In 2017 she wrote an op-ed in the Philadelphia Inquirer arguing that “all cultures are not equal,” and that we should defend the superiority of America’s “bourgeois culture,” which is better suited for an advanced technological economy than alternatives—this, in the context of multicultural “diversity” arguments that were seeking to “de-center” Western cultural norms (or “whiteness”) at universities. Outrage ensued, and in an interview with Glenn Loury explaining her views she went further, observing that affirmative action (“positive discrimination”) has proven counter-productive. In her long career teaching at Penn’s law school, she claimed never to have had a Black student in the top quarter of her class, and only rarely in the top half. She expected her experience was shared by every other professor at her Ivy League institution and she challenged her university to produce any evidence to the contrary. This resulted in an intense uproar leading to various disciplinary sanctions against her. She has nevertheless continued to make politically incorrect statements in public on racially sensitive matters, and as we meet today the University of Pennsylvania is going through formal procedures to strip her of her tenure and fire her.

Here we have an excellent example of “cancel culture,” a locus classicus for the threat to free speech in our time. Nearly all conservatives agree that it is deplorable that the University of Pennsylvania is ridding itself of its Socratic gadfly.

But,…but. In the United States there is another professor, much less distinguished but nevertheless distinguished enough to become Chancellor of the University of Wisconsin at LaCrosse. His name is Joe Gow. Last year it came to light that he and his wife were in the habit of producing and appearing (with others) in pornographic videos that were posted online at a number of porn sites. He had also published several pro-porn books under a pseudonym. When all this became known, he was quickly removed from his position by the university’s Board of Regents. And, according to a report in USA Today, in a statement objecting to his firing, Professor Gow asserts that “the creation of books and videos exploring consensual adult sexuality falls within my right to free speech under the First Amendment.”

Is the firing of Joe Gow another example of “cancel culture,” as Professor Gow in effect is asserting? If you are inclined to support Amy Wax against her university and support the University of Wisconsin against Professor Gow—as I do—are you unprincipled, a mere hypocrite? When we defend the freedom of speech, what exactly are we defending, and why?

As an American, I can only speak to you from my own historical experience; I am not sure how well it translates in European and Hungarian terms. I know that many in Europe admire America’s First Amendment, and for that matter they admire America. But I want to register from the first a note of caution. It is dismaying to me to witness with each passing decade the extent to which American political culture colonizes Europe; Europe is much more the same as America today than it was 30 years ago. It is difficult enough to understand how the death of George Floyd in police custody in Minnesota became a national rather than a local event—about 1,000 Americans are shot dead by police every year, 20 every week, and Floyd wasn’t even shot but most likely died of a fentanyl overdose. But that George Floyd should also become a political and cultural event in Europe makes no sense to me. White supremacy and “whiteness” are contested concepts in America, but they are at least vaguely intelligible there. Here, they make no sense.

I am sure you have heard of American exceptionalism. But think about that: the term is usually taken to mean that America is exemplary, but it really means that America is an exception, an exception to a rule—the “rule” of nation-state development that we witnessed over the past thousand years in Europe. Ultimately, American exceptionalism is not so different from the meaning of the German’s Sonderweg. Exceptions cannot make the rule.

In what ways is America exceptional? Three items immediately come to mind.

First, in America something very like John Locke’s account of the Social Contract really did happen. For us, it’s not a thought experiment. As Locke himself says, “…in the beginning all the world was America.” And so, for us, by necessity, political authority could only be grounded in free consent and nothing else. I suspect that your King Stephen did not feel quite the same way. America thus represents an unmediated liberalism that likely cannot and should not be replicated elsewhere.

Second, in America, the understanding of what we might call “average” or “normal” Christianity is wildly different from Europe. After all, overwhelmingly, American Christianity is composed of all the sects that were despised, reviled, and ultimately found intolerable by everyone here—by Catholics, yes, but also by Lutherans, and even by the Reformed churches. No one wanted these “heretics” anywhere near them—and so they made their way to America. Thus, the baseline American imagination of what the Christian God expects of us is more different than you might think.

Finally, in America, we had race-based chattel slavery for nearly 250 years, and a hundred years of Jim Crow, an intricate legal system supporting the formal subordination of those who had been enslaved, thereafter. It really was an enormity, America’s original sin.

America’s exceptional history of African slavery and Jim Crow matters when it comes to recent efforts to limit the freedom of speech in the United States—because the recent novel practices working to limit freedom of speech, like cancel culture, are most often tied to racial sensitivities. And so most Americans experience genuine moral ambivalence before SJWs meting out punishments for the proscribed kinds of speech.

Even at our very freest, there were always recognized limits to what can be said. Famously, you can’t shout “Fire!” in a crowded theater, for example. But there have long also been recognized causes for civil action when it comes to libel and defamation. Your honor is a kind of property; to have that taken from you by slander is a harm that civil courts can redress.

But the cultural tropes and legal mechanisms of Jim Crow were nothing if not an intricate system designed to keep African-Americans subordinated, an entire culture built to ritually humiliate and deny the honor due to any man or woman. In other words, American culture, before the 1960s, was in part designed to routinize ongoing defamation of African-Americans. The harm was real, it was monstrous, and for generations it was taken for granted.

What do you do when faced with such an injustice having put down such deep roots in your culture? You have a kind of moral emergency, so you seek to use every tool you may have to hand to uproot the monstrous thing. Culture is constituted through communication, the things we say or do not say to each other, and particularly to the young. To uproot this racial injustice, therefore, Americans sought to reform their speech. What we are witnessing in America’s cancel culture debates is an ongoing contest about where lines should be drawn around the freedom of speech and about what forms of enforcement may be employed to the end of racial justice. It is, you might say, at least understandable, given America’s exceptional historical experience.

There are three points I’d like to register here.

First, with respect to African-Americans, the injustice was certainly real and it was a grave matter, and whether or not we agree with the means deployed to rectify it, we must admit that those who seek a more just settlement for African-Americans are motivated by good will.

Second, the African-American experience in America is unique; it is not shared in America by other “people of color,” nor by sexual minorities. Yet the example of the Civil Rights Movement has been seized upon for replication by quite different interests. I believe this attempt at replication is illegitimate.

Third, and what matters for our purposes here, there is no deep European, and certainly no Hungarian, historical experience remotely like America’s experience with race-based slavery. So there is, as it were, no excuse, no justification here for American-style cancel culture. I would implore you, and all Europeans, to recognize your historical difference from America and so reject the colonization of your political culture by the latest American obsessions.

That is a lot of throat-clearing for what is supposed to be a short talk. I apologize. Let’s turn now to America’s First Amendment, the constitutional guarantee of our freedom of speech. That text reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Americans are rightly proud of their First Amendment. This codification and expansion of British common law liberties played a major role in the formation of America’s uniquely freedom-oriented and tolerant traditional culture. But what is the theoretical justification of the rights outlined in the First Amendment? After all, speech is powerful—which is why the study of rhetoric was at the center of all classical Bildung: mastery of public speaking constituted a power. And speech can be downright dangerous—as we recognize in the figure of the demagogue.

Classical political practices sought to contain the volatile power of speech in various ways, ultimately seeking to subordinate dangerous opinion to the sacred nomoi of the polis. And it might be said that classical political philosophy sought to coax dangerous minds away from politics altogether, toward the safety of philosophy itself, undertaken in private. In the classical period, public restrictions on freedom of speech are more or less taken for granted as a necessity for unity in any polis. The classical polis was a closed society.

But in modern political thought, most pre-eminently in John Stuart Mill’s essay “On Liberty,” freedom of thought and speech is justified as a kind of progressive project of intellectual, even spiritual, improvement. If free scope is given to the expression of novel ideas, the mores of all mankind may be raised up through a kind of competition of ideas. Mill’s promise is that in this free competition of ideas, as in a free market, the best ideas will ultimately win out. False opinions will be refuted and discarded, and we will approach a society based on Truth alone. This is the “classical liberal” justification for the right of freedom of speech.

Of course, Mill himself is less absolute in his liberalism than he is often reputed to be. He explicitly says that the liberties he is advocating for the England of his time don’t apply to “backward states of society.” That is to say, a “despotic” approach is justified with respect to Britain’s colonial possessions—and, indeed, for the lower classes of England. There are some subjects you simply don’t discuss freely in front of the servants. Mill’s own prudence about the limits of freedom of speech has been lost in latter-day classical liberal thought.

But there are, in any event, theoretical difficulties with Mill’s position. He promises that by throwing all traditional certainties up for free critical debate, the competition of ideas will lead us ever closer to the Truth. But there is no way of knowing that we are “approaching” the Truth unless we already know the Truth and so have a yardstick for judging the closeness of the approach. Does John Stuart Mill already know the Truth? Or does he know only “his” truth?

It seems to me that the best way to understand John Stuart Mill is that he is not providing a truly principled argument for freedom of thought and speech at all times and in all places. Rather, he is engaged in a kind of special pleading or motivated reasoning for a personal project in his own time. His aim is to unsettle and ultimately overturn the dominant Christian cultural and moral norms of Victorian society, thereby creating room for his own and his high-born friends’ exotic “experiments in living,” with the ultimate aim of establishing a new “religion of humanity.” Once we have arrived at that end and the “true” religion is established, it is not clear that Mill would object to marshalling strong societal disapprobation against those still advocating “backward” views. The foot will be on the other foot, as it were, and as we have already seen, a despotic approach is appropriate for those in a backward state. Does it not seem that something like this is what lies behind the University of Pennsylvania’s moral self-righteousness in working hard to cancel Amy Wax?

There is a close connection between the “free marketplace of ideas” as a means and the “religion of humanity” as an end. At the center of Mill’s religion of humanity is what is often called “expressive individualism.” The term sums up a worldview and set of values constituting a proposition concerning the best way of life for a human being—namely, to express outwardly in public what is otherwise within you and private. From this standpoint, Mill’s standpoint, obedience, continence, and moderation are not virtues but vices. Likewise humility (including intellectual humility) and deference to the sensibilities of others are not virtues but vices. Conversely, self-regard is not a vice but a virtue. As the hippies of the 1960s used to say, the point is to “let it all hang out.”

It seems never to occur to partisans of this view that what is inward in a human being may be something misshapen and ugly, perhaps very ugly—even though the Christian teaching about Original Sin leads believers to take that possibility for granted. It seems never to occur to partisans of this view that what we now are is not what we were meant to be, and that that what we are meant to become may require the rejection of much that we find within ourselves.

I believe it is precisely because our societies have tended to follow Mill’s account of freedom of speech as freedom of expression that, in America at least, it is virtually impossible to even imagine the possibility of limiting pornography, or indeed of limiting Drag Queen Story Hour—while at the same time purely scientific research into racial differences carries a strong whiff of heresy and the urge to burn the blasphemer at the stake. I believe also that freedom of speech transmuted into freedom of expression is also at the root of what we now call identity politics. If the outward expression of what is otherwise inward and private becomes valorized, then “authenticity” is a high, perhaps the highest, human value. Authenticity and identity are very closely related concepts. Which is why “identity harms” as small as a microaggression now seem to cut to the quick.

My point is that if you want to defend what is truly of value in the practice of freedom of speech, you must not do so on the basis of Millian freedom of expression. We need to ground our practice in something other than classical liberalism.

Perhaps we can make our way toward an alternative, better grounding for the freedom of speech if we consider again America’s jurisprudential history. It is important to observe that in its plain text the First Amendment is endeavoring to secure not one thing but many things. It is securing religious liberty. It is securing freedom of speech. It is securing freedom of the press. It is securing freedom of association. And religious liberty itself is bifurcated into freedom of religion, on the one hand, and no-establishment on the other. These are many things, not one thing.

What transpired in American jurisprudence in the twentieth century is that Supreme Court justices, and left-liberal advocates within the elite legal academy, grew increasingly less willing to accord religion a privileged place in the U.S. Constitution—despite the plain text identifying religion as a subject for unique protection. A special constitutional carve-out for religion—which is to say, for the dominant Christianity—seemed inconsistent with a fully theorized, fully “neutral,” and therefore a putatively universal, liberalism. Indeed, by the lights of the so-called Warren Court of the 1960s, it was secularists and atheists who merited special constitutional protection, not Christians.

At the same time, rapidly changing mores concerning sex were running up against the fact that, under the common law and the Supreme Court’s own precedents, the circulation and possession of obscenity—pornographic images—received no legal protection. That “backward” communities of Deplorables clinging to their Bibles and their guns could shut down the “experiments in living” of the urbane progressive classes was, to the Court, intolerable.

The jurisprudential solution in America was…to follow John Stuart Mill. The “many things” in the First Amendment were reduced to “one thing”—expressive liberty or freedom of expression. So, for example, religion was re-conceived not as a social body united by authoritative common belief and organized for action in the public square—in other words, religion was not about churches—but as a matter of inward, idiosyncratic, and as likely as not irrational personal belief. As an American, your right to express that belief was constitutionally guaranteed, just as much as your right to express your conviction that purple is your favorite color.

Freedom of speech, on the other hand, became a short-hand for “what really matters,” freedom of expression, as we’ve seen—such that it is now not really possible to tell whether Joe Gow’s defense of his right to star in pornographic videos while serving as Chancellor of the University of Wisconsin might not succeed.

If this is the “natural” evolution of a conception of the freedom of speech grounded in liberalism, what might be an alternative foundation for the practices we (conservatives) actually value and want to protect? I would suggest that the answer is: democracy. We need to ground the freedom of speech in the requirements of democracy.

Before the rise of the rights revolution in the 1960s, American common law was quite sensible about speech. For one thing, speech was primarily a matter of language, that unique capacity of human beings to communicate thoughts through words formed into sentences. From a political point of view, the most important use of language concerns the communication of information and ideas about the common good of a political community. Think of parliament, a word rooted in the French parler, to speak. For a parliament to reach a just outcome for the common good, the members must be free to share what they know about the state of their constituencies and the likely effect of proposed laws. They must be free to offer their best thinking about how to steer the ship of state for the good of the whole, even if their ideas are deeply unpopular and perhaps even offensive to some. Parliament is a place where speech must be free if parliament is to serve its purpose. So, in a democracy, political speech by the whole people must likewise be accorded protection—and for the same reason. If democracy is the rule of the people, then the whole people are members of the political class, engaged in deliberation about their common good. They must be free to speak.

Sometimes political speech can become quite heated. Insults are hurled and the words sting. But a democratic republic requires spirited self-assertion in the citizenry; its practices must cultivate those virtues in the people. And so the Americans of my generation and older, raised before the full outworking of the rights revolution, were taught by our parents that, “Sticks and stones may break my bones, but names will never hurt me.” In other words, we were raised to embrace a manly indifference to merely verbal bullying. How different this is from how Americans are now raised—to embrace the role of “snowflakes,” ever at the ready to call upon authority for redress when made uncomfortable by even the most innocuous slights.

So it is political speech which is pre-eminently worthy of protection. But, again, in American common law prior to the 1960s, commercial speech was not wholly free. I was justly subject to prudent regulation—companies cannot lie in their advertisements. That is still the case today. And pornography had no rights at all. That is not the case today. A freedom of speech grounded in the practical requirements of democracy is a far saner practice than a freedom of expression grounded in the untethered aspirations of liberalism.

I want to leave you with one final thought. I began with two examples of “cancelation” at universities, and indeed, over the past decade many Americans have observed that the extreme “woke” practices of universities have somehow metastasized to swallow the whole of American society. If, in the beginning, all the world was America, now, at the end, it seems as though all the world is becoming an American college campus. Against this development, conservatives have been arguing most pointedly for free speech on campus, asserting among other things that freedom of speech is at the very heart of what a university is for.

I would therefore invite you to consider that what we in America call “the Sixties” really began in the 1964-65 academic year with the “Free Speech Movement” at Berkeley. A student radical at Berkeley named Mario Savio objected to university rules against bringing controversial political speakers to campus. He objected, further, to university rules against student demonstrations on campus. He and his friends wanted to be free to express their strong commitment to the goals of the Civil Rights Movement, then at its apogee. His objections to the university’s rules took the form of, precisely, demonstrations, sit-ins, “fiery but mostly peaceful” protests (which is to say, riots), and all the other features we associate with the student revolts of the 1960s.

Here’s the thing. Conservatives at the time, and many moderates and even some liberals, were opposed to Berkeley’s Free Speech Movement—fervently opposed. Hard as it is now to believe, California was, then, a conservative state, albeit one with certain eccentricities, and so the public authorities were positively eager to take action against the students. But even Berkeley’s academic leadership likewise opposed the Free Speech Movement, ultimately giving the police the green light for a mass arrest of students.

Conservatives then were against “Free Speech” on campus. How odd then, today, to find conservatives singing paeans to the university as the proper home for the free expression of all ideas. How odd to find conservatives reprising the arguments of John Stuart Mill.

The usual explanation for this reversal proffered by the Left is that, back then, in the 1960s, the academic authorities were “racist” and the student protestors “anti-racist.” Now that academic authorities are “anti-racist,” it is “fair” for them to restrain “racist” speech, however defined. But this is more than simply a matter of “turnabout is fair play,” an oscillation of power relations somehow yielding a sort of cosmic justice in the balance. Rather, from the Millian standpoint that I discussed previously, it may be maintained that free speech was right in the Sixties whereas today free speech is wrong. The free marketplace of ideas, forced on the universities in the 1960s, has done its work. The Truth—of “anti-racism”—has now won, so those who stubbornly remain “backward” in their racial views may justly be treated despotically. Or, put another way, from the standpoint of (left-)liberalism, Berkeley’s Free Speech Movement was right and the contemporary rejection of conservatives’ free speech claims is right, and there is no contradiction.

I want to focus, however, on the conservatives in 1964-65. What exactly were their arguments against the Free Speech Movement? First of all, they were not racists—of any kind. That is simply a canard of the Left which we can promptly discard. California was not the Deep South; nearly everyone was in sympathy with the goals of the Civil Rights Movement.

No, the conservatives were defending a certain idea of the university, a richer, fuller idea than that encapsulated by the slogan of “Free Speech.” The university years were understood as a privileged time, set deliberately apart from the everyday business of society—including the quarrels and disputes of current politics—for…the pursuit of higher and nobler ends, for the enlargement of soul and the pursuit of new knowledge. Students should not be loudly expressing their political convictions about a current controversy, however just their cause. They should be contemplating Kant’s third antinomy, or puzzling their way through differential equations, or reflecting deeply on the Aeneid. Rather than passionately venting their moral and political views, they should be cultivating a dispassionate habit of critical judgment and refined understanding. They should be acquiring an enlarged and more broad-minded view of the world and everything in it, which often means attending to subjects and texts and cultural artifacts and theories, the “relevance” of which may not be immediately apparent. The essential freedom of the university is not the freedom of speech, and certainly not the freedom of expression; the university’s essential freedoms are the freedom to teach, the freedom to learn, and the common freedom to inquire.

It should be recognized, at once, that this understanding of the mission of a university is an aristocratic one, not a democratic one. Indeed, the discipline required for genuine inquiry is quite distant from the democratic ethos. In the case of Berkeley, moreover, the students’ aristocratic leisure was purchased at taxpayer expense—lavish expense. The plumbers, farmers, and carpenters of California, together with the oil magnates and bankers and shipping tycoons, were being taxed so that the state’s most talented sons and daughters had the opportunity to give their attention for four years to “the best that has been thought and said” in the Western tradition—and in other great civilizational traditions—so that the democratic political community that is California would have in its midst the ennobling leaven of a body of citizens formed in this distinct way.

One key threat to the university, from this aristocratic perspective, from this conservative perspective, is therefore the incursion of democratic political concerns into the sacred precincts. Student activism is a waste of taxpayers’ money, but more than anything it is a waste of the precious time that has been set apart for cultivating the higher capacities of the mind and soul. In short, politicization is what most threatens the true educational mission of the university. And so, from this conservative standpoint, Berkeley’s Free Speech Movement was wrong, and today’s woke administrators are wrong, and there is no contradiction.

What I have tried to do in my talk is provide you with some points for critical reflection. We conservatives all feel quite acutely that a suffocating and frankly perverse orthodoxy is being imposed on our societies, and we want to resist it. In that resistance, I have three admonitions. 1) Be careful about the lessons you learn from the American experience. 2) Do not ground your resistance in the conceptual apparatus of liberalism. And 3) do not lose sight of the fact that, even in a democratic society, some institutions are rightly ordered to ends that are higher than freedom.