The Unfortunate Consequences of a Misguided Free Speech Principle

There is growing pessimism about the future of free speech in the United States. Crusaders from all sides of the political spectrum seem intent on suppressing objectionable discussion.1 The worry is that Americans may be losing their appetite for candid and constructive dialogue. It has become too costly to participate in public discourse. We fear that incorrect speech will be canceled by the left or bullied by the right. 

This is surely a troubling state of affairs. But it can be cured only if we first correctly diagnose its causes. There is a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely. But this diagnosis puts the cart before the horse. The difficulty we now face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased. We misconceive the problem because American culture is obsessed with what has become known as the free speech principle. It is a principle that is widely misunderstood. Our misconceptions are as deep and as they are consequential. 

I shall take as my text a representative and much-discussed 2022 opinion piece by the editorial board of TheNew York Times entitled “America Has a Free Speech Problem.” In its first sentence, the editorial warned that Americans “are losing hold” of the “fundamental right” to “speak their minds and voice their opinions in public without fear of being shamed or shunned.”2 The editorialdid not focus its attention on government regulation of speech, which is the particular domain of the constitutional law of the First Amendment, but instead on the more basic question of free speech itself. It urged Americans to extend to each other the fundamental right to say whatever is on their minds. The editorial suggested that the more speakers could express their thoughts, the more our politics would heal. It implied that the current dislocation of our politics could be solved by more speech.

The editorial’s framing of the issue is not idiosyncratic.3 Advocates of a free speech principle abound. Yet the editorial rests on a misguided understanding of free speech. Whatever freedom of speech might signify, it does not mean that unrestrained expression is inherently desirable. It does not mean that more speech is always better. One can see this clearly if one imagines the limit case. Those who cannot stop talking, who cannot exercise self-control, do not exemplify the value of free speech. They instead suffer from narcissism. Unrestrained expression may be appropriate for patients in primal scream therapy, but scarcely anywhere else. 

Normal persons ordinarily feel constrained to speak discreetly. I might detest my friend’s wife, but I will refrain from telling him so in ways that might hurt his feelings. Speech is the foundation of all human relationships, but no human relationship can exist without tact or discretion. No friendship can survive unrestrained communication that ruptures elemental norms of mutual respect. More speech is not always better. 

No doubt friendship also requires candor and spontaneity. Sometimes friends must articulate to each other truths that are unpalatable and difficult to express. How then do we balance the need to speak freely against the need for tact? The answer is that we should choose to speak in ways that will make our friendship as good as it can be. We speak when it improves the quality of friendship; we exercise self-restraint when it improves the quality of friendship.4 The relevant good we seek to achieve is friendship, not more speech.5

The same logic applies to almost all human relationships. We do not value speech from the solipsistic perspective of the speaker. Instead, speech that contributes to the excellence of a relationship is valued; speech that undermines the value of a relationship is suppressed. Consider, for example, the lawyer who speaks to a court or a client. The lawyer does not simply say what is on her mind, nor would it be a good thing if she did. The lawyer’s goal is not to produce the maximum number of words. The goal of the lawyer is instead to produce the best possible results for her client. To achieve that goal, a lawyer must balance candid expression against tactful self-restraint. 

In my own capacity as a professor of law, I would never assess the success of my classes by the number of words I have expressed. I rarely simply blurt out what is on my mind. I instead try to speak in ways that maximize the educational value of my classes. This means that I always balance self-restraint against spontaneous self-expression. There is no principle of free speech that can override this simple, essential, and universal logic. 

This suggests that the premise of the New York Times editorial, while familiar from continuous iteration, is fundamentally misguided. Abstract principles of free speech tend to rest on unstated and undefended premises about the desirability of an uninhibited and unrestrained flow of words. But in actual life, we know full well that human speech always transpires in the context of concrete relationships. This means that we never value speech as such. We instead prize the good of the relationships within which speech is embedded. We do not honor the speech of friends; we honor friendship. The eloquence and advice of lawyers are not important except insofar as they advance the rule of law. Classroom discussion is not significant in itself; it is only valuable insofar as it facilitates education. And so on. All such judgments are substantive and contextual.

When we speak about freedom of speech in the abstract, however, we tend to lose touch with this basic insight. Like the New York Times editorial, we almost imagine that the more we speak, the more we vindicate the principle of freedom of speech. This is a confusion that nicely illustrates the deceptive allure of abstraction. If we think only of speech, and if we lose track of the context of speech, it sometimes seems as if speech itself produces many important goods. It is often said, for example, that freedom of speech is required to increase our knowledge of the world. 

In the context of American legal thought, this understanding of freedom of speech originated in the pathbreaking 1919 dissent of Oliver Wendell Holmes, Jr., in Abrams v. United States, which virtually invented modern First Amendment doctrine.6 Holmes argued:

When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.7

The echoes of Holmes can be heard in the New York Times editorial, which asserts that “Freedom of speech and expression is vital to human beings’ search for truth and knowledge about our world.” Yet if we think carefully about this assertion, we can see that it is only a half-truth that obscures how we actually talk when we seek to add to the store of human knowledge. When we aspire to new knowledge, we do not merely speak our minds. We speak in ways guided by the norms of persuasive intellectual discourse. 

In modern society, universities are institutions that increase the scope of human knowledge. Professional scholars do not believe that more speech is necessarily better. They do not simply say whatever is on their minds. Instead, they try to express themselves in ways that comply with the best possible applicable disciplinary standards. In modern society, contributions to knowledge do not depend upon popular acclaim. Speech can be fashionable on the internet and yet be worthless as scholarship. Influencers do not produce knowledge. The best test of truth, it turns out, is not the marketplace, but instead the judgment of those trained to assess intellectual quality. And intellectual quality is inseparable from compliance with relevant disciplinary standards. Of course, those who seek to acquire new knowledge must be free to criticize received truths. They must be free to speak from their beliefs. But the value of this speech depends upon whether it meets accepted scholarly standards. Those who merely invoke a free speech principle, who are determined to express their minds without regard to the criteria by which the merit of scholarship is evaluated, do not contribute to knowledge. They are simply cranks. 

It follows that an abstract principle of freedom of speech will not tell us much about how to advance knowledge. Any such principle will always miss half the equation. It will ignore the self-restraint required by norms of professional scholarship. That is why “academic freedom” does not rest upon any simple principle of freedom of speech. The boundaries of academic freedom are always determined by reference to the baseline of professional competence.8

An abstract free speech principle is misguided because it obscures these boundaries. The point becomes plainly visible when the free speech principle is defended by those who celebrate the value of personal autonomy. We are often told that free speech is necessary for authentic self-fulfillment.9 The influence of this approach is visible in the New York Times editorial when it argues that “human beings cannot flourish without the confidence to take risks, pursue ideas and express thoughts that others might reject.”10

A healthy society will no doubt encourage its members to be creative, to take risks, to pursue their own ideas. And the achievement of these values surely requires a certain freedom of expression. But it is a non sequiturto conclude that these values require for their vindication an abstract principle of free speech. All societies encourage individual autonomy and initiative up to the point that it contributes to the success of relevant social practices, and they discourage individual autonomy to the extent that it undermines these practices.

Consider, for example, the profession of scholarship. We encourage scholars to take the initiative to express their own individual insights. But when a scholar’s autonomy prompts him to speak in ways that are incompetent, the scholar is sanctioned. He may not receive a job or tenure; his manuscripts will not be accepted for publication by scholarly journals; his grant proposals will be rejected. These sanctions are not a bug of academic freedom; they are a feature. Without them, academics would be merely prima donnas, divas captivated by the sounds of their own voices. 

Professional speech follows an analogous logic. Doctors are encouraged to find authentic expression in their work. But any doctor whose autonomy leads her to the incompetent practice of medicine will be sanctioned. It does not matter that a doctor may sincerely believe, and in fact stake her personal identity, on the belief that hydroxychloroquine cures COVID-19.11 No doctor’s need for personal autonomy will ever trump her responsibility to competently practice medicine. 

This point can be generalized. All social practices are defined by boundaries that distinguish unacceptable from acceptable behavior.12 These boundaries apply to speech as well as to action. To privilege the individual autonomy of speakers and to insulate their communication from the enforcement of these boundaries is to undermine the practices. The speech of the New York Times editorial board illustrates the point. However much it might celebrate freedom of speech, I am confident that the Times editorial board does not itself feel free to publish whatever comes into its mind. The board instead carefully curates its own speech so as to maintain credibility with its readers. It disciplines its own autonomy so as to participate competently in the social practices that endow it with persuasive authority.

Consider what it means to treat others with respect.13 We accord “dignity” to those around us by complying with relevant norms.14 These norms apply to speech as well as to action. I demean the dignity of those around me when I speak to them in abusive or outrageous ways. We ordinarily enforce these norms through social disapproval.15 I can expect to arouse indignation and condemnation if I spew shocking and shameful insults. All well-socialized persons are cognizant of the boundaries that distinguish acceptable from unacceptable forms of speech. It is therefore puzzling why the New York Times editorial board might complain that we are losing the “fundamental right” of speaking our minds “without fear of being shamed or shunned.”16 No such right exists in any well-ordered society. If I walk into a room shouting outrageous slurs, I should expect to be shamed and shunned. Only a demoralized community would passively accept irresponsibly hurtful speech.17

It is possible, however, that the New York Times editorial board is concerned less with the existence of a boundary between acceptable and unacceptable speech than it is with the location of that boundary. Perhaps the board members are worried that we are being shamed for the wrong kind of speech. Or perhaps they are alarmed that the distinction between appropriate and inappropriate speech has become so confused and ambiguous that we have become fearful of saying anything at all. These are of course serious matters that deserve careful attention. 

The norms by which any society distinguishes acceptable from unacceptable speech typically evolve in time, and, in moments of extreme polarization, can become subject to intense and unresolved social conflict.18 The Times editorial suggests how deeply unsettling such controversies can be. But this is not ultimately a point about freedom of speech. It is instead a point about the need for social relations to be governed by clearer or more defensible substantive principles of respect than those that now seem to be paralyzing our public discourse.

The thrust of my argument so far is that, in most instances, an abstract principle of freedom of speech does little work.19 We balance self-restraint against the need for candor by reference to the goods of the social practice in which we happen at any given moment to be engaged. It is plainly important to discuss the nature of these goods, as well as the many ways in which freer speech will advance or undermine these goods. But any such discussion is not ultimately about free speech as such. It is instead about the social practices that create most of the social goods that we value in our lives.20 The difficulty with an abstract free speech principle is that it purports to set the value of speech, as well as the goods obtainable by speech, independently of the social context of speech.

Does it follow that a century of obsession with freedom of speech has been simply a delusion? I think not. There is one social practice that we have not yet discussed and that is of immense relevance to how we understand freedom of speech. The nature of that practice is indicated by the fact that the New York Times editorial is especially concerned to protect the right to speak one’s mind in public.21 This seemingly innocuous qualification is of great importance. Although the Times editorial is systematically blurry on the point, those who invoke the principle of freedom of speech frequently have in mind a very specific social practice: the freedom to engage in public discourse.

Although the concept of public speech goes back to the ancient classical world of Greece and Rome, it acquired a different character after the invention of printing. The printing press gave rise to an entirely new form of social organization: the “public sphere.”22 What we now call the “public”23 emerged within the public sphere. It was created by “the circulation of texts among strangers who become, by virtue of their reflexively circulating discourse, a social entity.”24

The public sphere, and its corresponding “public,” are maintained by an infrastructure of media, like newspapers or museums, that connect strangers to each other. To speak “in public” is to speak to those one doesn’t otherwise know, but whom one expects to reach through the media that underwrite the public sphere. In our own time, social media and the internet have created a vast and comprehensive virtual public sphere that is intimately connected to our everyday lives.25

What we call “public opinion” arises within the public sphere. Public opinion has in turn facilitated new forms of political governance. For the past century, it has been common to observe that democracy is best understood as “government by public opinion.”26 The public, in the words of sociologist Michael Schudson, is “the fiction that brings self-government to life.”27 

Public discourse is the medium through which modern societies create a public opinion capable of controlling state institutions. If the seventeenth century witnessed the creation of modern states powerful enough to be charged with the elemental task of imposing social peace, those states had by the eighteenth century become so successful that nations struggled to ensure their accountability to civil society.28 During the age of constitutionalism, the ambition was to find a way to use politics to cabin state power. 

As Hannah Arendt has taught us, politics shifts “the emphasis . . . from action to speech, and to speech as a means of persuasion”; “to be political” is to reach decisions “through words and persuasion and not through force and violence.”29 The upshot is that for modern societies, the public sphere has become a distinctive social organization, oriented around forms of communication that we carefully distinguish from action. The hope is that the public sphere will produce a public opinion capable of exercising political control over state power. 

Nothing like this social practice has ever existed before in history. Modern theories of freedom of speech are basically efforts to understand the principles that ought to govern this new and enormously important social practice. The basic structure of America’s First Amendment doctrine can best be understood as an effort to work out rules for restraining state control over public discourse in a nation in which “authority . . . is to be controlled by public opinion, not public opinion by authority.”30 At the heart of these rules is the strange and counterintuitive separation of speech from action that Arendt theorized must characterize all political participation.31

The tug of the political is plainly apparent in the New York Times editorial. The Times argues that

freedom of speech is the bedrock of democratic self-government. . . . When speech is stifled or when dissenters are shut out of public discourse, a society loses its ability to resolve conflict, and it faces the risk of political violence. . . . Every day, in communities across the country, Americans must speak to one another freely to refine and improve the elements of our social contract: What do we owe the most vulnerable in our neighborhoods? What conduct should we expect from public servants? . . . When public discourse in America is narrowed, it becomes harder to answer these and the many other urgent questions we face as a society.32

These are powerful arguments. The essential point, however, is that they are not arguments about freedom of speech. They are instead arguments about how a robust and free public discourse is necessary to legitimate the American state. The basic thought is that those excluded from public discourse have little incentive to abide by the rules of the political game.33 Toleration of widely divergent views and forms of address within public discourse is necessary if the American state is to maintain legitimacy throughout its wildly diverse population. This insight lies at the root of much contemporary First Amendment doctrine.34

It is important to emphasize that arguments usually proposed for freedom of speech in fact apply much more naturally and convincingly to public discourse. Although the marketplace of ideas may not produce knowledge, it does accurately describe the endless debate out of which public opinion continuously emerges.35 Although the value of individual autonomy is not persuasive with regard to speech qua speech, it does carry traction within public discourse. The whole point of public discourse is to express the independent and voluntary views of the demos. Within public discourse, the state must treat citizens as self-determining and sovereign. 

What are characterized as theories of freedom of speech, in other words, are far more convincing as theories of public discourse. Yet even in this context, such theories can be highly misleading. They occlude the fact that public discourse is itself a practice that we have adopted in order to govern ourselves through communication in the public sphere. By focusing abstractly on speech instead of on the concrete purpose of this practice, our theories of free speech encourage us to forget that the fundamental point of public discourse is the political legitimation of the state. Our public discourse is successful when it produces a healthy public opinion capable of making state power answerable to politics.36 Our public discourse is not successful merely because every speaker expresses his thoughts in an uninhibited way. Standard theories of free speech mistake means for ends.

Although as a general matter greater participation in public discourse is more desirable than less participation, there may be circumstances in which certain kinds of speech can hinder, rather than advance, the successful formation of healthy public opinion.37 We cannot begin to identify and analyze these circumstances until we first grasp that public discourse is not a mere collection of individual speech acts. It is a purposive social practice whose object is to produce a healthy politics. Suppose, for example, that the speech of the rich has come to so dominate public discussion during elections that people no longer believe that their opinion is fairly represented. In such circumstances, the function of public discourse will be undermined. But we will not recognize this problem if we focus only on the freedom of individual speakers. We will lose sight of the systemic function of the practice of public discourse.38

The appropriate balance between freedom and restraint must always be determined by the social practice within which communication is embedded. Public discourse is no exception to this generalization. At the present time, American courts have lost track of this basic insight. They have developed strict trans-substantive First Amendment doctrines that restrict speech regulation regardless of its context. They have even begun to apply to ordinary commercial and professional transactions First Amendment doctrines designed to protect public discourse. It should be obvious, however, that political discussion merits different forms of protection than does, for example, the professional speech of a doctor.39 Our courts have lost their way because their focus has been distracted by what Justice David Souter once called “speech as such.”40

One of the very great dangers hanging over the future of free speech in the United States is the present tendency of the Supreme Court to extend to all speech the protections properly due only to public discourse, and thus to use the First Amendment to impose a libertarian, deregulatory agenda on ordinary social and economic regulations.41 In the long run, the only sound defense against such abuse is to conceptualize the value of free speech squarely in terms of the discrete social practices that speech constitutes.

Within the context of public discourse, Americans have been confident for more than a century that merely by participating in public debate we could somehow overcome sharp differences of opinion and produce a democratically legitimate political will. The remedy for disaffection has been more participation, more engagement, and more speech. By conceptualizing our current crisis as one of speech, the Times editorial doubles down on this traditional understanding. The problem can be solved, it intimates, if only Americans could more freely speak their minds.

An entirely different perspective on the crisis emerges, however, if public discourse is seen as a distinct social practice designed to produce a democratic and healthy politics. The problem of radical polarization, which has become so deep and so rancid that Americans now no longer seem to inhabit the same factual or normative universe, is not a simple question of speech. It is the corrosive dissolution of the political commitments by which Americans have forged themselves into a single nation. If we conceptualize public discourse as a social practice, we can see that its failures stem from this fundamental problem. The clear implication is that curing public discourse is not just a matter of speaking more freely. 

Politics is possible only when diverse persons agree to be bound by a common fate.42 Lacking that fundamental commitment, politics can easily slide into an existential struggle for survival that is the equivalent of war.43 We can too easily come to imagine our opponents as enemies whose victory would mean the collapse of the nation.44 In such circumstances, political debate can no longer produce a healthy and legitimate democratic will. However inclusive we may make our public discourse, however tolerant of the infinite realms of potential diversity we may become, the social practice of public discourse will fail to achieve its purpose so long as we no longer experience ourselves as tied to a common destiny. Politics always requires that participants remain faithful to some shared ideal that is larger and more important than any particular issue that may separate them.

It follows that those who care about American democracy ought to think, first and foremost, about how we can revive our experience of a shared fate. This is a political challenge, not a problem of free speech. Its solution will require political interventions of a kind that we have not yet begun to imagine. The editorial board at The New York Times is undoubtedly correct to fear that we cannot generate the political will to support these interventions if we cannot speak to each other in ways that authentically communicate our priorities and values. But the board confuses a symptom with a cause.

We cannot now speak to each other because something has already gone violently wrong with our political community, which is to say with our antecedent commitments to a common political destiny. To conceptualize this problem as one of free speech is to imagine that the cure is simply to encourage more speech. It is to fantasize that the ties that bind us together will somehow be refreshed merely because we speak to each other more freely. But this is an illusion, a cruel mirage cast by the allure of a free speech principle that has somehow floated free from the social practices in which it should be embedded. 

Now more than ever we need to understand why we have come to distrust each other, to mistrust political authority, and to imagine ourselves as tribal groups at war with one another. More speech of the wrong kind can exacerbate, not heal, these terrible divisions. The underlying issue is not our speech, but our politics. So long as we insist on allegiance to a mythical free speech principle that exists immaculately distinct from concrete social practices, we shall look for solutions in all the wrong places. 

Our country is now so fragile, our democratic future so precarious, that every such misstep is fraught with danger. It is imperative that we arrive at a clear and accurate diagnosis of the disease that each day further corrodes our precious polity. It is time to open our eyes.