Two Concepts of Freedom (of Speech)

Abstract

Two Concepts of Freedom (of Speech)1 Teresa M. Bejan Contemporary Confusions Of the many challenges facing democracy in America today, few perplex the public mind like the freedom of speech. Until recently, however, few freedoms seemed more obvious and ours. Let all else descend into the maelstrom of partisanship and polarization—Republicans and Democrats could at least agree to adjudicate their differences through the free (if not always fair) exchange of insults, as well as ideas. Yet ongoing controversies at American universities suggest that now free speech, too, is a partisan issue. While conservative students and their supporters invite controversial speakers to campus and assert their rights to offend their peers, self-identified liberals have engaged in increasingly disruptive, even violent, efforts to shut them down.2 For those who remember the original campus Free Speech Movement of the 1960s, this spectacular shift from Left to Right is a source of some confusion and chagrin.3 Many civil libertarians have suggested that what kids these days really need is a remedial civics lesson. Surely the absolutism of the First Amendment's second clause—"Congress shall make no law abridging the freedom of speech"—is unambiguous enough? While the appeal of a retreat to the ostensibly neutral ground of the First Amendment is obvious, it is also entirely inadequate. As "the kids" are quick to point out, the cases we care about are very often those in which the Constitution does not apply. Social media mobs calling for individuals to be condemned, censured, or fired are themselves comprised of individuals exercising their constitutional rights to speak freely. Moreover, private entities like Facebook or Twitter—or colleges like Yale or Middlebury—have the right to regulate and even exclude [End Page 95] members on the basis of their speech as they see fit. Pleading the First Amendment in such cases is not a knock-down argument: it is a non sequitur.4 Here, one might be tempted to invoke that patron saint of secular liberalism, John Stuart Mill, who warned in On Liberty (1859) that the greatest threat to the "freedom of thought and discussion" in democracies was not the state, but the "social tyranny" of one's fellow citizens.5 Still, neither side of the current controversy would disagree. Indeed, many on the Left supportive of "no platforming"—that is, of denying any person or group holding objectionable views a public platform— insist that they are not anti–free speech at all. Rather, they—like Mill himself—are worried about the harms posed by hateful or "assaultive" speech to vulnerable groups and individuals, as well as the deleterious effects a hostile environment might have on their speech.6 On this view, denying hateful or historically privileged voices a platform is necessary to make the equal right to free speech effective, so that the most marginalized and precarious members of society can finally speak up— and be heard. In making their case, these students and their supporters are putting into practice the theories developed by feminist philosophers and critical race theorists in the 1990s. These were inspired, in turn, by the theory of speech acts pioneered by J. L. Austin, the father of ordinary language philosophy. In How to Do Things with Words (1962), Austin argued that in addition to the "locutionary," or semantic meaning of an utterance, and the "illocutionary," or socially valid intentions of the speaker, one must also consider its "perlocutionary" force—that is, the action it performs in the world, intended or not.7 For feminists like Catharine MacKinnon, an exemplary instance of the perlocutionary effects of "doing things with words" was the sexism perpetuated by pornography. "Words and images," she argued, "are how people are placed in hierarchies, how social stratification is made to seem inevitable and right, [and] how feelings of inferiority and superiority are engendered."8 Other scholars have since extended this analysis to hate speech. They argue that racist statements, for example, serve to rank others as [End Page 96] inferior, thus "fixing facts" about their relative position in the social hierarchy and legitimizing unequal treatment.9 This unequal treatment also has epistemic consequences, creating a society wherein some individuals are...