How not to limit free speech

I am by no means a free speech absolutist.  In an article at Postliberal Order a couple of years ago, I set out the natural law position on the issue, noting that the teleology or final cause of our rational and communicative faculties entails not only a broad range of freedom of expression, but also definite limits.  There can be no natural right to expression that is positively contrary to what is good for us given our nature as rational social animals.  However, that by no means entails that just any old limitation on free speech imposed in the name of a good cause is a good idea, or even justifiable in principle.

I won’t repeat here everything I said in the earlier article, but the relevant principles are as follows.  Natural rights, in general, exist for the purpose of facilitating the realization of the ends toward which our nature directs us.  In the case of our rational and communicative powers, that end is the discovery and dissemination of what is true and good.  We have a natural right to speech that facilitates this end.  And while that entails that there is no right to express erroneous or bad ideas as such, it nevertheless does allow for a wide range of freedom to express even ideas that happen to be erroneous or bad.  The reason is that, given the limitations on our cognitive powers, we are bound to fall into error sometimes, and the normal means of correcting these errors is the give and take of discussion and debate.  Furthermore, those who would censor erroneous and bad ideas are (since they are no less human than anyone else) themselves prone to error, and therefore may end up censoring true and good ideas.

There is a presumption, then, in favor of free expression, precisely because it facilitates the natural end of our rational powers.  However, not all forms of expression are protected by this presumption, because not all forms of expression have anything to do with our rational powers.  For example, pornography does not appeal to our rationality and in no way contributes to discovering truth or to debate by which we might root out error.  It appeals instead to our appetites, and in a way that corrupts them.  In particular, it fosters and even habituates sexual desire that is disordered in its intensity and its objects.  It thereby corrupts sexual morals, and thereby weakens the institution of the family, the foundation of all social order.  Accordingly, pornography is in no way protected by the natural right to free speech.

There are also ideas which not only happen to be erroneous or bad, but have a tendency positively to frustrate the pursuit of truth and the living of good lives.  Examples would be views that deny the very reality of truth or goodness as objective features of the world.  Since the purpose of the right to free expression is to safeguard the pursuit and dissemination of what is true and good, it can hardly protect speech that denies the very reality of the true and the good.  Hence there can be no natural right to promote such ideas.  There may under certain circumstances be good prudential reasons to tolerate them, but not because suppressing them would be inherently unjust.

The case for (certain kinds of) censorship

Which forms of expression should the state prohibit, then?  To start with the least controversial examples, it should prohibit libelous and slanderous speech, and speech that directly incites violence against some individual or group.  

That pornography should be outlawed is now a more controversial claim than it used to be, but it should not be controversial.  From a natural law point of view, this is not a difficult case at all.  Pornography should simply be banned.  To be sure, there are materials concerning which one can make a case for toleration (for example, novels or mainstream movies that are not pornographic works but do have salacious content).  But this is not so where straightforwardly pornographic materials are concerned.  (Naturally, the argument for this claim presupposes the general natural law account of sexual morality.  I’m aware that not every reader will accept that account, but my point is that if one accepts it, together with the natural law account of the foundations of natural rights, the case for outlawing pornography is obvious.  I’ve defended the natural law approach to sexual morality in other writings.)

In a forthcoming article at Postliberal Order, I argue that governments have a right under natural law to prohibit flag burning, understood as a public expression of contempt for one’s country.  On the one hand, such a prohibition in no way frustrates expression of or debate about any idea (since any idea that could be expressed by burning the flag could be expressed instead in words).  And on the other hand, showing such public contempt for one’s country offends against the virtue of piety, and can destabilize the social order by encouraging others to have a similar contempt.  But whether a particular government should actually exercise its natural right to ban this particular form of expression is a matter for prudential judgment and depends on circumstances.

What about the expression of ideas that positively frustrate the pursuit of what is true or good?  Here the clearest cases concern contexts where such ideas might influence the young – who, because they are more ignorant and inexperienced, and governed more by feeling than reason, are least likely to be able to see what is wrong with such ideas.  Hence, consider cognitive or moral relativist theories that deny the reality of truth or goodness as objective features of the world.  Or consider theories that are inherently subversive of the social order and pit one group against another, such as Nazism, Marxism, and Critical Race Theory.  Or theories which promote gravely disordered sexual desires, and thus inculcate sexual vice in the young and destabilize the family.  It is simply common sense that there cannot be a right to teach such ideas to young people, such as high schoolers (let alone even younger children).  The state may and ought to prohibit the dissemination of such ideas in primary and secondary education.

Things are more complicated where higher education is concerned.  Certainly the state should in no way and under no circumstances actively promote such evil ideas in any context, including higher education.  But what about merely tolerating them?  Here there is no “one size fits all” answer, and much depends on the judgment of prudence.  There can be special circumstances where the state has an interest in rooting out such ideas.  For example, you would not want to tolerate having many Critical Race Theorists on the faculties of the military academies, because their ideas are positively subversive of allegiance to the country that warriors are supposed to be protecting. 

The case against (other kinds of) censorship

But policing academia in general is much trickier.  Government regulators are highly unlikely to be sufficiently good judges of ideas, given the people who would be appointing them.  Liberal politicians tend to be suckers for every idiotic academic fad that comes down the pike, while conservative politicians tend to be philistines.  Any regulation of academic discussion coming from either left-wing flakes or right-wing yahoos would be ham-handed at best and do much more harm than good.  Hence in a university context it is, in general, best to combat erroneous ideas through the give and take of free debate.

Something similar can be said of public debate in the world beyond academia, especially in a pluralistic society like the U.S. whose constitution and political culture have long idealized the free exchange of ideas (even if, in practice, not always doing so consistently or well).  When it comes to bad ideas concerning political philosophy, public policy, and the like (as opposed to defamatory speech, incitement to violence, pornographic expression, and the like), it is better to fight them through the give and take of debate rather than through censorship. 

The COVID-19 pandemic vividly illustrated how dangerous it can be for even intelligent and well-informed people with good intentions to try to police such speech.  One side tried, in the name of public health, to shout down critical discussion of policies that imposed severe costs on millions yet whose scientific and moral justifiability was far from certain.  The other side, rightly alarmed at this, overreacted by too willingly embracing crackpot medical ideas and conspiracy theories.  The first side then condemned this overreaction, arrogantly oblivious to its own responsibility for causing it.

In this case, preemptively shutting down debate was especially unreasonable given how poorly understood the virus was at first, and how draconian and untested were the methods employed for dealing with it.  But even in the case of matters that are very well understood, it is generally a bad idea to try to suppress dissent by force of law.  Human beings are, by nature, rational animals.  True, they very commonly use their rational powers badly, and are prone to all sorts of error and irrational thinking.  But because they are rational animals, they are, naturally, prone to accept ideas only when they can see why they are reasonable and have a choice about whether to embrace them.  They do not react well to having forced on them ideas they don’t understand or agree with, even when those ideas happen to be correct and resistance to them is unreasonable.  For the sake of social harmony, then, there is a strong presumption against censoring public discussion and debate over matters of policy, political philosophy, and the like.

In theory, there are cases where this presumption can be overridden.  But I would suggest that a necessary condition for such censorship is that it meets all of the following criteria:

1. It should concern expression that is inherently contrary to the common good, and in particular that attacks the prerequisites of living together as a community of rational animals.

Again, I would argue that examples of expression that meet this condition include: libelous or slanderous speech; the incitement of violence against particular individuals or groups; pornographic expression; direct assaults on the virtue of piety, such as public actions intended to foster contempt for one’s country; ideas that challenge the very reality of truth or goodness; and ideologies that promote social conflict by demonizing entire groups of human beings, or which directly promote grave vices such as sexual immorality.  (This list is meant to be illustrative, not exhaustive.)  As I have said, there may be pragmatic reasons why a government should tolerate such errors, but it cannot be wrong in principle to suppress them.

Now, the point is that these sorts of expression are direct assaults on the good of individuals and societies.  Defamatory speech, by destroying one’s reputation, can make it extremely difficult or impossible to engage in everyday social life (by securing employment, for example).  This is even more obviously true of speech that causes others to live under the threat of violence.  A culture that is so awash in pornography that even children have easy access to it will inevitably inculcate widespread and deeply ingrained sexual vice, which is contrary to both our social nature (since it destabilizes the family) and our rational nature (given that, as Aquinas teaches, sexual vice has an even greater tendency than other vices do to blind the intellect).  The proliferation of ideas that promote hatred of one’s country or of large groups of one’s fellow citizens radically undermines social harmony.  And so on.

Contrast these examples with the following: disagreements over particular policy proposals (concerning taxation, immigration, health care policy, foreign policy, or the like); disagreement with or dislike of some particular individual politician or political party; disagreements about particular moral issues or matters of political philosophy (of the kind that always inevitably arise in political debate, journals of opinion, the classroom, etc.); disagreements about particular matters of empirical fact, concerning current events, history, science, etc.; and so on.

These sorts of disagreements, even when heated, are a normal part of social and political life and in no way intrinsically at odds with the good of individuals or societies.  And even when erroneous opinions about such matters result from outright deception or intellectual dishonesty, they rarely strike at the very roots of the social order.  Moreover, it is in any case simply unrealistic to suppose that government can, in general, effectively separate such lies out from the honest mistakes and exaggerations human beings are commonly prone to.  Hence these are matters where government should not interfere with speech, but rather let error be corrected via the give and take of free debate.

2. It should clearly be motivated by service to the common good, rather than the narrow interests of some particular party or leader.

The point here is that it is not good enough for a policy of censorship actually to have sound reasons in its favor.  It must be motivated by those reasons, and be widely perceived as having such a motivation.  Even the best policy is likely to backfire if it is widely perceived to be motivated instead by corruption or a personal grudge on the part of some leader, or by an attempt by one party or ideology to silence reasonable dissent.

This does not mean that every single citizen has to think the policy has a good motivation.  That would, of course, be an unrealistically stringent standard.  But a critical mass of the population has to be able to see it that way.  Think of the way that, in wartime, the bulk of the population often gives the government the benefit of the doubt where certain censorship is concerned, because it knows that certain matters have to be kept secret for the sake of national security.  Certainly this was true in the days of World War II, for example. 

Of course, things are different now, and distrust of governmental authority is much higher.  But that makes it even more important (not less) for a critical mass of the population to be able to believe that a censorship policy is at least intended to serve the common good rather than some narrow personal or partisan interest.  From the point of view of natural law, the whole point of suppressing certain kinds of expression is to preserve the social order and the common good.  Hence a policy that will, in practice, tend only further to divide an already highly polarized society can hardly be justified on natural law grounds.

For these reasons, even when a policy of censorship has good arguments in its favor, it should in general not be pursued except by leaders known for the utmost probity and statesmanship.  Otherwise it is likely to do more harm than good.

3. It should be calmly and carefully thought out, not impulsive.

Censorship, like war, is so grave in its consequences that even when it is justifiable, it should never be resorted to lightly.  Hence, a policy of censorship should never be implemented except after careful and dispassionate study.  Major events that trigger strong emotions (such as the rapid spread of COVID-19 in early 2020 and the recent assassination of Charlie Kirk) often lead to calls for censorship.  But censorship policies proposed under such circumstances are the least likely to be justifiable, because they result more from emotion than reason.

4. It should as far as possible be implemented in general rules, rather than in ad hoc directives or other exercises of discretionary power.

This condition is a corollary of the second and third conditions.  Where some individual or agency has arbitrary power to censor speech, it is far more likely that such censorship will result from the passions of the moment than careful and dispassionate analysis, and that it will reflect personal or partisan interests rather than be directed to the common good.  There is also the consideration that social order requires predictability, and thus the rule of law rather than governance by whim.

In light of these criteria, what should we think of recent Trump administration policies that have been characterized as exercises in censorship?  The answer is that it depends on which policies we are talking about.  In the case of eliminating federal funding for DEI programs, rooting “woke” ideologies out of the military academies, and the like, I would say that these measures are all justifiable.  One might quibble over details of implementation, but the basic policies are sound, because these ideas are poisonous and divisive and should have no influence on, or support from, government.  

But things are very different with some of what has been said and done over the last couple of weeks, in the aftermath of Charlie Kirk’s assassination.  Attorney General Pam Bondi has spoken of “going after” those who engage in vaguely defined “hate speech,” and of prosecuting printing businesses that refuse to print Charlie Kirk posters.  While ABC was in my view correct to suspend Jimmy Kimmel for an unjust and inflammatory remark, it did so in part under threat from FCC chairman Brendan Carr, whose action has been compared by Republican Senator Ted Cruz to that of a mafia boss.  President Trump has suggested that because the negative press coverage he has received is in his view excessive, it is “no longer free speech” and “illegal.” 

These remarks and actions are foolish and irresponsible.  They are bad in themselves, because they clearly do not meet the criteria set out in 1- 4 above.  They also threaten to discredit the good things the Trump administration is doing, because they give its enemies ammunition by lending plausibility in the public mind to the tiresome charge of “fascism.” 

Defenders of the administration will point out that left-wingers who promoted “cancel culture,” cheered Trump’s being kicked off of social media, suppressed speech during the pandemic, etc. have little standing to complain.  That is correct.  But it is also irrelevant.  It’s a cliché to say that two wrongs don’t make a right, but it is also true.  Statesmanship requires doing whatever possible to repair social divisions, not exacerbating them further in the interests of getting revenge on those who first caused them.