One of the most persistent pitfalls in political argumentation is a version of the fallacy of false equivalence. A friend dubs it the fallacy of ripe apples and rotten oranges. In a political context, it's when an advocate compares an idealized or best-case version of his preferred position with a realistic—or perhaps even exaggeratedly negative—version of his opponent’s. We see this often in debates over grand economic models. Capitalists accuse socialists of overlooking the actual record of socialist regimes and judging capitalism’s inadequacies not against a probable alternative but a utopian image. Socialists are charged with setting up a target that is always moving; if objectors point to the defects of, e.g., Maduro’s Venezuela, the reply that “that’s not true socialism” is sure to come. Likewise, libertarians often find themselves criticized by everyone from centrists to Communists for holding up an idealized, unfalsifiable characterization of the benignity of exchange and the free market and then criticizing the regulations and redistribution that characterize the modern state for falling short of this condition. Every social ill, their critics charge, is thereby allowed to be traced back to our not having a really free market, while the real-life deficiencies of markets go unexamined.
As the broad American consensus in favor of free speech erodes, we have seen a similar unsatisfactory form of disputation proliferate. Critics of “free speech absolutism,” as it is condescendingly dubbed—we don’t refer to “rule of law absolutists” or “separation of powers absolutist,” for example—highlight all manner of alleged deficiencies with the status quo and trace them to an alleged excess of free speech. If we could just get rid of free speech, then the ills associated with this “unmitigated disaster,” as one dyspeptic left-wing journalist calls it, would vanish, with apparently none of the good things we might wish to retain being threatened.
These opponents of free speech typically provide little sense of what the new, non-free-speech dispensation would look like in practice. In this asymmetrical theoretical comparison, implicit in much of today’s fashionable attacks on free speech, the alternative is hardly laid out at all. Somehow, we are led to believe, falsehoods and hurtful talk will vanish without truths getting caught in the dragnet, and no one, it appears, will be left any the worse off.
A recent New York Times Magazine article, on the travails that a massive commitment to DEI has brought to the University of Michigan, helps burst this bubble. DEI in the setting of a modern research university is a multifaceted, tentacular enterprise, and the report investigates a number of issues that would take us in other directions, such as demographic discrimination in hiring. But one core element of DEI, recognized by conservative and even liberal critics for years now, is the speech-policing it entails. A salutary achievement of the Times investigation is to convey some sense of what ensues when an institution that previously upheld free speech turns away from it.
As the article recounts, and as observers of DEI elsewhere have often noted, a central effect of Michigan’s expansive DEI programs implemented over the past decade has been the constriction of speech. The article documents in detail the pathways by which this occurred; suffice it to say that once a bureaucracy with the apparently limitless mandate of fostering such vague values of diversity, equity, and inclusion gets funded to the tune of hundreds of millions of dollars, whatever ostensible commitments to academic freedom and free discussion Michigan (as other public universities) has made are effectively undone. Any sense of freedom of speech as a living ideal was upended by administrative intrusion and an accompanying cultural shift toward what we might call “carceral inclusivity”—the idea that infractions against the edict of inclusion must bring sanctions, whether through informal collective action like ostracism, dogpiling, and “cancellation” or through the myriad mechanisms of formal discipline that DEI makes possible. “Everyday campus complaints and academic disagreements, professors and students told me, were now cast as crises of inclusion and harm, each demanding some further administrative intervention or expansion”; a “former president of one top research institution” being so afraid of reprisal that he will only speak on condition of anonymity; “pervasive double-think” to avoid stating uncomfortable facts about what was occurring; professors being censured for harmless comments; fear of sanction distorting curricular choices; rampant self-censorship in the face of “gotcha culture,” and a marked increase in “discomfort” even in casual settings; these are some of the effects the article describes. John Stuart Mill’s warning in On Liberty that state persecution and censorship were not the only threats to intellectual-expressive freedom—that indeed social intolerance, the yoke of public opinion, intrusive and meddling peers, and the denial of opportunities could be even more effective clamps on discussion—seems to have been realized in Ann Arbor in a way that is barely distinguishable from caricature.
This brings us to the key point: when we debate the desirability of free speech, we should keep in mind what we’re comparing free speech to. And what we are comparing it to, if we do not accept the utopian indulgences of would-be censors, is a predictably malignant culture. Epistemic reasons are often cited as the foundation of support for free speech—that is, freedom of speech leads to truth. This is, I believe, broadly right. But it is a difficult proposition to prove, and if it applies, it does so only over the long term. During any stretch of time, free speech is not going to guard a government or organization against making some grave errors. The epistemic argument, even at its strongest, will always be liable to leave hostages to fortune, and we cannot simply stipulate that all the truths it permits us to uncover are worth the few, perhaps especially pernicious, falsehoods it allows to spread; this line of reasoning implicates a complex set of value judgments, and those with different worldviews are unlikely to agree about which truths are so important as to merit tolerating which falsehoods.
Fortunately, in the meanwhile we have a surer and more grounded reason to value free speech: not so much for the truths it may reveal as for the vices it keeps in check. We must not content ourselves with a contrast between the inevitable messiness of a free-speech regime and a sanitized version of speech-restrictionism. In practice, the alternative to free speech is, frankly, a morally inferior culture. Speech restrictions cultivate the taking of offense, rather than the development of measured and sober rebuttals to ideas that bother us. Because rules about speech, to have any teeth, need officers to enforce them, they undermine face-to-face resolution of tensions between peers and colleagues and push ordinary slip-ups of communication into the province of official hierarchies and disciplinary proceedings. Speech controls encourage sweeping condemnations of people based on their worst days or moments, rather than holistic assessments of their contributions to an institution or community. They incentivize performative fragility and the embellishment of wounded sensitivities. They promote unenlightening ad hominem attacks rather than substantive discussion. They increase resentment and alienation, since restraints on speech almost inevitably give a kind of veto over expression to those who are quickest to anger and thereby render the regular person’s ability to participate in conversation dependent on the unpredictable responses of others.
Speech restrictions have not typically taken the form of setting up bright lines around specific words or phrases that cannot be said. Instead, they involve (depending on the historical moment) amorphous injunctions not to give pain or offense, not to subvert the foundations of society, not to undermine morals or religion, not to promulgate hate or bigotry. But as these are inevitably contested categories, punishment gets meted out in a way that cannot but look arbitrary to many. This system foments mistrust and friction between those who should be seeking common ground. It makes timidity and cowardice, rather than plain-speaking and truthfulness, the order of the day. It generates ignorance of one’s own values, and distances us from our own thoughts—for we largely figure out what it is we actually believe through trying out arguments and replying to objections and pushback. But when we’re afraid of the consequences of venturing an idea in public, we lose the benefit of this process of intellectual self-discovery.
A culture of speech restrictions leads us to regard disagreement as a crisis rather than an opportunity. For those who find success in targeting wrong-speakers, it fosters arrogance and a taste for unaccountable power. It prompts us to see our opinions as a kind of property or identity of which it would be wrong to deprive us, rather than as provisional notions about what’s right that demand revision in light of further evidence. It induces a self-righteous attitude that pathologizes dissent rather than accepting it as a natural result of people with different backgrounds and experiences reasoning in good faith.
As the requirements of correct speech are not only essentially vague but also shifting and nebulous, systems of speech-restraint predictably take on the exclusionary dimensions of codes of etiquette and manners. Appeals to “decency” and “civility” then become pretexts for ignoring the voices of those, often from less polished or less privileged backgrounds, who have not had the opportunity to master these codes, and mistakes of phrasing or word choice are magnified into markers of “being a bad person.” Caste loyalties are entrenched, and instead of approaching disagreeable remarks charitably, with an eye toward learning from the other person, a feeling of superiority at having stayed current with the latest shibboleths crowds out a shared sense of civic commonality. Snobbery based on petty linguistic gamesmanship spreads, and respect for real intellectual achievement is lost to an inegalitarianism founded on “not saying the wrong thing.”
In the arena of friendship, family, and companionship, it is widely recognized that if someone comes to you and says (inevitably without providing full context) “did you hear what so-and-so said?,” the upstanding thing to do is to respond, “that’s none of my business.” Yet in an institution whose culture and administrative procedures dispense penalties and rewards for dishing such dirt, what we would all otherwise recognize as a prurient love of malignant gossip gets confused with the promotion of social justice. Respect for privacy, humility about how much insight into another’s heart and mind one can really gain from snippets and hearsay, a default toward minding one’s own business—these basic liberal decencies become unfashionable. Authoritarian dispositions gain the upper hand.
These are just some facets of the moral and social climate that arises when our commitment to free speech degrades.
Of course, registering these predictable upshots of moving away from free speech does not settle the question of what speech regime is most desirable. But at least it will inject some honesty into the conversation. Both speech-libertarianism and speech-restrictionism entail their share of drawbacks and unpleasantness.
No sensible proponent of free speech ever thought that it came without costs. Even the canonical text on the subject, Mill’s On Liberty, does not (as it is widely mistaken to have done) argue that speech cannot have negative effects on others, but instead provides reasons for believing that the pros of free discussion nonetheless outweigh the cons. As one of Mill’s interlocutors put it, in a lurid passage that captures earnest liberals’ reckoning with the unease and hardships that come with free speech:
Civil war, legal persecution, the Inquisition, with all their train of horrors, form a less searching and effective conflict than that intellectual warfare from which no institution, no family, no individual man is free when discussion is free from legal punishment. Argument, ridicule, the expression of contempt for cherished feelings, the exposure of cherished fallacies, chilled or wounded affection, injury to prospects public or private, have their terrors as well as more material weapons.
The critical thing in debating free speech is to locate the real point of disagreement. Our choice is not between an ideal world of harmonious conversation liberated from slurs or disinformation, on the one hand, versus free speech with all its foibles on the other. Instead, we should be clear about what jettisoning free speech means. It means ushering in a social world that, unfortunately, we have now seen modeled on campuses across the country for some time. It means a system that inclines toward bureaucracy and surveillance; that empowers the tattletale, the ninny, and the zealot; that breeds distrust; that turns normal infelicity of expression into a punishable misdeed; that makes the misrepresentation or misconstrual of others’ meaning into a mechanism for social and professional advancement. Administrative overreach, self-censorship, stunted deliberation, the stimulation of a snitching mindset—these are some of the natural concomitants of abandoning free speech.
Personally, I remain committed to a wide conception of free speech. But to those who advocate that America as a whole or certain key sectors like academia should leave free speech behind, I ask that we at least have the argument on a level playing field, with no effort to hide the drawbacks that restrictionism would impose.
Photo: Westend61 / Westend61 via Getty Images