We Need More Than the First Amendment, We Need a 'Culture of Free Speech'

Insulting, shaming or deplatforming those we disagree with is not only a threat to a free society, it’s a confession of failure

George Caleb Bingham, American (1811-1879), Stump Speaking/Image Credit: Wikimedia Commons

We are engaged right now in seemingly endless battles over free speech—yet few of these conflicts are destined ever to be hashed out in a courtroom.

It is fairly well established, for example, that there is no First Amendment right to force a social media platform to host your account if they don’t like what you have to say or how you’re saying it. A private school may fire a teacher, administrator or even the janitor for saying or doing something that incurs the disapproval of others. Doing so is within their legal right, even when it is not the right thing to do.

So, what we are really arguing about is not rights but right and wrong. We’re arguing about what has been called the “culture of free speech”—freedom of speech not as a legally protected right, but as a cultural norm. The culture of free speech is a presumption in favor of tolerance for a diversity of opinions and beliefs. It is the choice to forebear from firing, deplatforming or boycotting others whose views you find wrongheaded, on the conviction that entertaining such a diversity of views is necessary for finding the truth and for helping to nurture a vibrant and creative society.

Yet it is notoriously hard to define what exactly is covered by this culture of free speech and why we need it. Which ideas should be entertained and given an audience, and which, if any, are beyond the pale? How much tolerance or consideration do we have to show to ideas we disagree with or even find repugnant? And should the purveyors of unpopular ideas expect to incur social consequences for the offense their speech causes to others?

The culture of free speech is one of those ideas that we know we need but are not entirely sure how to define. In practice, we tend to regard it the way Justice Stewart famously regarded pornography: We know it when we see it.

Can we draw clearer lines? Should we even be trying?

On the one hand, there are many ideas that we may consider wrong or unconvincing, but there is some basis for argument, and the process of argument serves an important function, stimulating our thinking. Thomas Jefferson declared, for example, that his University of Virginia would be a place where “we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”

Similarly, in his landmark work “On Liberty,” John Stuart Mill championed free speech specifically as a social and cultural norm, rather than just an object of legal protection, and he wrote at length about the role of open debate in strengthening our search for the truth.

He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. . . . He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of truth which meets and removes that difficulty.

A culture of open debate also protects us from falling into uncritical groupthink. Consider a very recent cautionary tale: the “lab leak hypothesis” for the origin of the COVID-19 outbreak, which was initially dismissed as a crackpot conspiracy theory but is now acknowledged as a plausible alternative. Whether the lab leak theory proves to be true or not, it’s a bad precedent for public health experts and commentators to ignore the evidence about a potential danger.

Yet most of us would also accept that there are ideas beyond the pale, claims such as denial of the Holocaust that are so intellectually discredited and so vicious in their implications that we see no value in entertaining debate over them. Such delusions are tolerated legally, at least in the United States, but not culturally.

Dismissing some ideas—such as Holocaust denial—may even be required to clear the way for a free and open debate on questions of actual substance. Authoritarian rulers, for example, have begun to adopt the tactic of flooding the media with conspiracy theories and unsubstantiated claims, not so much to convince people to accept these claims, but rather to confuse the debate and make people give up the effort to sort truth from fiction.

And of course, there are always hucksters and charlatans who exploit concerns about “cancel culture” to escape legitimate criticism. The all-time prize for chutzpah probably has to go New York Governor Andrew Cuomo for declaring that he would “not bow to cancel culture” as his way of dodging credible allegations that he sexually harassed employees and suppressed data on coronavirus deaths.

So unless we define our terms more clearly, appeals to the culture of free speech will inevitably be murky or subjective and will seem like a selective protection for people we like that is withdrawn for people we don’t like. Every society has to draw lines to determine what is acceptable and what is not, and we’re just upset that people are drawing the lines in different places. Or worse, we’re upset that different people are drawing the lines.

I recently hosted an in-depth discussion about the culture of free speech with some people who have done a lot of important thinking on the subject, and I think I’m ready to propose a clear standard for drawing a line about what should and should not protected by the “culture of free speech.”

I would borrow, for this cultural question, a test also used frequently in the law: the famous “reasonable man” standard. You might note that I am fudging a bit here because the standard is itself often considered vague. In asking a jury to determine what a reasonable person would have done in a particular situation, judges are not giving jurors any sort of obvious or mechanical way of making a decision. They are giving jurors a standard that requires the exercise of individual judgment applied to a concrete case.

Yet this still helps set a standard, by virtue of that word “reasonable.” Reasonable in this context does not mean merely moderate or unbiased; it means driven by reason, that is, by evidence, logic, persuasion. To be protected by the culture of free speech, a person must have something to say, an argument that appeals to reason.

What would this protect? Any argument which, no matter how it may challenge current mainstream morality, does so based on evidence and the interpretation of evidence. Take a famous example, the debate over comments on the causes of gender inequalities in the sciences that ended up costing Larry Summers his job as president of Harvard. Yet Summers had offered a real argument, citing statistics about the variability of preferences and abilities between men and women and inviting debate about their causes. Or consider a later, similar discussion that got a Google engineer fired for citing similar statistics. An argument based on scientific studies and statistics is an appeal to the reasonable person.

Why should this be protected? Because facts matter. An attempt to address important questions that dismisses facts and statistics and logical analysis—rather than answering them with more facts and statistics and better analysis—is likely to get the answers wrong and to correct an allegedly unjust result by creating more injustice.

This doesn’t just apply to arguments expressed in strictly scientific or statistical terms. Consider J. K. Rowling’s thoughtful comments on the conflicts between feminists and transgender activists—met by declarations that she is a bigot and foot-stamping efforts to demand her ostracism. To be sure, no one is going to succeed at “canceling” a mega-best-selling author, but think of the chilling effect this has on other authors who are not so well known, as in the case of an author of young adult fiction whose book, which was supposed to be a cautionary tale about prejudice against Muslim immigrants, was attacked because the author herself was not Muslim. The result is a limit on not just the kinds of messages it is acceptable to convey in fiction, but the very topics one is allowed to address.

This is what the culture of free speech is meant to prevent. It rejects all arguments that seek to preemptively invalidate the speaker, amounting to the rebuttal “‘Shut up,’ he explained.” It asks us to answer ideas we dislike with something more than appeals to emotion (“I felt unsafe”), insults (“you’re a bigot”) or pressures to socially conform (“read the room”). It’s why we are right to be revulsed by social media pile-ons from those who don’t know the facts of a case (other than a selective 288-character snippet) and who don’t care to find out.

The culture of free speech is needed to remind us to answer arguments we don’t like with facts and reasoning of our own, rather than simply to foreclose the discussion.

The standard of reason also explains why the mere newness of an idea makes it unsuitable as a defining line between what is acceptable and unacceptable. It was only in the past decade that as progressive a leader as Barack Obama was willing to publicly endorse gay marriage. How can that now be used as a test of basic human decency for everyone else?

But the reasonable person standard also allows us to properly regard some ideas as beyond the pale: ideas that are considered so thoroughly discredited that no reasonable person would believe them. Some such crackpot notions we may still tolerate (such as the idea that NASA faked the moon landing) because their followings are small and harmless. But, for example, the sheer scale of the Holocaust; the vast number of photographs, documents and eyewitness accounts; and the shocking nature of the crime entitle us to suspect that those who deny it actually wish to repeat it.

Yet such beyond-the-pale ideas are necessarily rare. The very open-endedness of the reasonable person standard, the fact that it requires the exercise of critical judgment which may vary from individual to individual, indicates exactly why this standard would lead us to make toleration of diverse views the norm, with only a few rare exceptions.

The fact that reasonable people can disagree, that they may reach different judgments about which evidence is credible and which arguments are compelling, means that we should regard such differences as a normal part of life to be worked out through argument and persuasion.

The basic philosophical case for freedom of speech both in its strictly legal version and in its cultural form is epistemological. Freedom is required for the working of the human mind, to prevent any impediment in its quest to discover the truth.

In his “Letter Concerning Toleration,” the English philosopher John Locke described why coercion cannot guide us to the truth.

Such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force. Confiscation of estate, imprisonment, torments, nothing of that nature can have any such efficacy as to make men change the inward judgement that they have framed of things. . . . It is only light and evidence that can work a change in men’s opinions; which light can in no manner proceed from corporal sufferings, or any other outward penalties.

Whatever he may have done to muddle and confuse his case, John Stuart Mill followed the tradition of Locke in this respect. He argued that vigorous discussion and debate is actively necessary for the understanding of the truth.

Not only the grounds of the opinion are forgotten in the absence of discussion, but too often the meaning of the opinion itself. The words which convey it, cease to suggest ideas, or suggest only a small portion of those they were originally employed to communicate. Instead of a vivid conception and a living belief, there remain only a few phrases retained by rote.

To those who remember the history of communism, this will bring to mind Vaclav Havel’s example of the grocer who places in his window a placard reading, “Workers of the World Unite!”—not because he has any genuine convictions about the workers of the world, but simply because he is afraid of what will happen if he doesn’t put it there. The history of communism also reminds us of the mass crimes that are possible and the paralytic stagnation that can afflict a society when it is no longer acceptable to question the prevailing orthodoxy.

It is ironic that the culture of free speech is rejected these days by those who bill themselves as enemies of racism and other forms of prejudice, because it is they who want enshrine prejudice—the acceptance of an orthodoxy by unthinking rote—as the normal method of thinking. The attempt to foreclose on freedom of discussion, whether through government crackdowns, through epithets and name-calling, through public shaming and social-media pile-ons, or through threats of boycotts and firing, is a confession of failure. It implies the fear that one’s doctrines cannot stand up to the light of rational scrutiny.

What is the culture of free speech? The culture of free speech is a culture of reason—and reason only works by considering all the evidence and all the arguments, by relentlessly examining even established truths, by probing arguments for weaknesses and by searching for counterexamples. Even when reason arrives back at an accepted truth, it can only arrive there after a process of questioning that ensures the idea is held as a rational conviction rather than a mere prejudice. A living and vibrant society has to adopt a deep suspicion against any limits on that process.