The Real Reasons Speech Should Be Free

The arguments from pain trump the arguments from principle

There’s a debate going on about free speech. That’s a pretty safe statement to make at any time, but it is the debate in the comments in this post from the founders of Substack that I am referring to. Substack has a laudable commitment to free speech, but of course, they can’t talk about it publicly without there being a pile on:

The specifics don’t particularly matter. You will find the same invective hurled back and forth any time the subject is raised. The main line of attack against free speech today takes the form of the hate/hurt argument. Free speech is to be curtailed where it is hateful or hurtful. Other arguments have been used in the past, such as the heresy/blasphemy argument or the loyalty argument, but such arguments are not commonly made today in the West. Today it is all about the hate/hurt argument.

The hate/hurt argument is powerful because its essential claim, that speech can be hurtful, that it can be motivated by hatred, and that it can be used to arouse hatred are all true. Speech is powerful, and any powerful thing can be used to do harm.

The main arguments used against the hate/hurt argument tend to be appeals to principle. They focus on free speech as a fundamental liberty and on the value of free inquiry. These are good arguments, and they ought to win the day. But they don’t do anything to rebut the hate/hurt argument directly. They generally treat the hate and the hurt as simply the price we must pay to defend the principles of liberty and the value of free inquiry.

This clash between arguments from pain and arguments from principle is common in many political and moral arguments. It is at the heart of the current abortion debate, for example, with the pro-life case argued from principle and the pro-abortion case generally argued from pain.

Pain vs. principle arguments tend to be static, with neither side able to move the other. Some people care more about pain than they do about principle, and always will. Some people care more about principle than pain, and always will. If we actually want to convince people on a particular issue, it is often better to meet a pain argument with a pain argument and a principle argument with a principle argument.

I am by nature inclined to the arguments from principle, but I understand the power of the argument from pain. To begin with, the argument from pain is less mentally taxing to make and to understand, and one can get an easy feeling of righteous superiority from siding with the person claiming to be in pain.

The problem with the argument from pain is that it is motivated by sympathy, and our sympathy is never evenly distributed. We are not equally sympathetic with every person or group or with every kind of pain. We are deeply touched by some pains and some people, but indifferent to others. The argument from pain tends to end in special pleading that one group’s pain is greater than another’s or more deserving of relief. This makes the appeal to pain far more effective politically than the appeal to principle. It makes it the perfect wedge issue and test of loyalty.

But while the pain argument is often made cynically or in partisan fashion, it is nonetheless a serious argument that deserves to be taken seriously. And the best way to answer it is often by advancing a better pain argument in response. So these are the arguments from pain in favor of free speech. None of them have quite the visceral somebody-called-me-a-name quality of the anti-free-speech hate/hurt argument. But they do point to deeper and more pervasive hurts that result from suppressing free speech.

The perversity of the hate speech exception

The battle cry of the hate/hurt argument lately has been “Hate speech is not free speech.” In other words, it is a demand for an exception to the free speech principle to outlaw anything labeled as hate speech. This, it is claimed, would eliminate the harm done by hateful speech.

This claim was a Trojan horse from the beginning. When it was first mooted in its current form, many of us pointed out the obvious problem, that a ban on hate speech would lead to more and more speech being labeled as hate in order to suppress it. And, of course, this is exactly what happened. Over and over we have seen disagreement with one position or another labeled hate speech in an attempt to shut it down. This was, of course, what the anti-hate-speech campaigners were aiming for all along, and it has proved a potent political weapon.

But the hate speech exception has had another effect that I, at least, did not see coming, though in retrospect it should have been clear that this would happen. Far from reducing hate, it has increased it. The mechanism is straightforward. When criticism of certain behaviors started to be labeled as hate speech, this told people that if anyone criticized them, it was because they hated them.

Imagine this conversation in the playground.

Bobby: “Why did Billy call me a bad word, Mommy?”

Mother: “Because he hates you, darling.”

Bobby, in tears: “Why does he hate me, Mommy?”

Mother: “Because he is evil and stupid, darling. The world is full of evil stupid people. They all hate you. They will never let you play with them or have nice things.”

Comment below if this feels like good parenting to you. Yet this is exactly what we are telling people today. And the result is predictable. Bobby, told that Billy hates him, hates Billy in return. Pretty soon the two of them are throwing rocks at each other, and Billy hates Bobby as much as Bobby hates Billy.

And there’s the pain.

Disagreement is not hatred. Disapproval is not hatred. But once the expression of disagreement or disapproval is labeled “hate speech” hatred quickly blossoms on both sides. As a result, lots of people have been induced to believe that a sizable proportion of the general population hates them.

Causing people to believe that they are hated hurts them deeply. Thinking that people hate you is devastating. It changes how you react to people. It isolates you. You naturally start to hate them in return. This affects how you act towards them and how you speak to them. Pretty soon those people get the message that you hate them, and then they start to hate you for real. And thus there is a whole lot more hate in the world. With more hate comes more violence. With hatred and violence comes the death of civility. That death of civility is now on full display on campuses across the Western world.

Accidentally or on purpose, placing a hate speech exception on free speech has caused a lot of hatred and pain.

The nature of democracy

There are two basic theories of where law comes from:

• that the law comes from God

• that the law comes from man

The theory that ruled the West for centuries was the theory of natural law which says that there is a law written on the universe by God and discernable to mankind and that it is the duty of kings to rule in accordance with that law. In this scheme, there is no need to consult people about what they want the laws to be. The laws should be an expression of the natural law. It is not in the right of kings to make up laws either. Their job is to discern and codify the natural law, and then to enforce it.

This is not a common form of government today, but it does still exist. The most notable example is probably the papacy. Popes are elected, but this does not give them any authority to change the natural law. Thus Pope St. John Paul II memorably said that the church has no authority to ordain women. He was not ruling it out on his own authority. He was declaring that he had no authority to change the law on this subject. He was not making a decision but a discovery. He was invoking the belief that law comes from God and no human, even the pope, has any authority to change it.

Kings have understood their authority in this way for centuries. Whether they actually ruled in accordance with this precept or interpreted the natural law correctly is, of course, a different matter. But that is the theory on which they governed.

In this understanding of government, the people have no more say than the king in deciding what the law should be. It does not matter if most people would prefer a different law. The law should be a practical expression of the natural law whether people like it or not.

There is an argument for free speech in this theory of government. One can argue that the people should be free to criticize the king if he fails to make laws that accord with the natural law, or fails to enforce them with an even hand. One could also argue that people should be free to contribute to the discernment of the natural law and its application to current circumstances. But while it is clearly good that someone should do this, it is not necessary that everyone should do it. Effective criticism of the king’s interpretation of natural law should come from people learned in the natural law. They would no more think of doing natural law discernment by popular vote than we today would think of doing science by popular vote. (Okay, yes, we are sometimes doing science that way these days. But they had more sense.)

The alternative theory of government is that there is no natural law given by God, but that the law should be decided by the people themselves according to their own wishes. This idea is encapsulated in the phrase “Vox Populi Vox Dei” — “the voice of the people is the voice of God.” In the words of a Whig pamphlet issued in 1709 under that title:

There being no natural or divine Law for any Form of Government, or that one Person rather than another should have the sovereign Administration of Affairs, or have Power over many thousand different Families, who are by Nature all equal, being of the same Rank, promiscuously born to the same Advantages of Nature, and to the Use of the same common Faculties; therefore Mankind is at Liberty to choose what Form of Government they like best.

This is a huge change in our understanding of government. Everything is now for the people to decide for themselves. This is democracy red in tooth and claw.

If the voice of the people is the voice of God, democracy and free speech follow of necessity. For the voice of the people to rule, the voice of the people must obviously be heard. And that has to mean all of the people. Otherwise, you are saying that the voice of some of the people is the voice of God, and then how do you decide which voices are the voice of God and which are not? Go down that road and it will be the voices of the strong that become the voice of God and the voices of the weak that are not heard.

And there is the pain. That is how the weak come to suffer and be excluded and exploited. In a democracy, everyone must be allowed to speak or it is no democracy.

The balance of power

Theory notwithstanding, there are no pure democracies in the world today. Democracies in name and by principle, yes. But actual democracies, red in tooth and claw, no. They don’t exist. What exists are various hybrids of natural law and democracy. Why? Pure democracy, democracy red in tooth and claw, is something truly terrifying. People are easily swayed and given to strong prejudices and enthusiasms. In the depth of passion, they can be persuaded to vote for many terrible and foolish ideas. Some kind of hybrid system is required to keep that from happening.

Most states have evolved their hybrid approaches over time, either through a series of disruptions or a series of regime changes. One nation, however, established itself in the period when these ideas were in flux, and, give or take a Civil War and a million lives sacrificed, it has maintained it to the present day.

The American founders were aware of the natural law argument. They were also aware of the growing argument for democracy. And they were terrified of it. Placing the law entirely in the hands of the people seemed like a very perilous idea. On the other hand, the founders didn’t want to set up a king. They were sick of kings. So they cobbled together a compromise between the theories of natural law and pure democracy: a constitution.

The American founders implemented three buffers against democracy.

• The Bill of Rights to govern and constrain the rights of subsequent electors to define the law as they see fit. It is supposed to play the role equivalent to natural law, a law never to be changed, but only interpreted and enforced.

• A complex legislative process designed to slow down the passage of laws and make it difficult for one party, even with a majority, to fundamentally change the law.

• A supreme court to provide a veto to the professional class (the class from which all lawyers and judges come). In other words, they made sure that people like themselves would have the final say over any law voted on by the representatives of the hoi polloi.

What is interesting, though, is that the Bill of Rights included a very robust protection of free speech. One might ask why. After all, you could argue that if the people can have whatever form of government they like best, then why can’t they have a government that outlaws speech that is harmful or hateful? On the other side of the coin, if the lawyerly class was seeking a veto, giving themselves the power to censor would have been a powerful way to do it.

The answer, I think, is the balance of power. The American system is based on distributing power to different bodies, making it less likely that they will all be overtaken by the latest deranged popular enthusiasm at the same time. They could have chosen to give control of speech to one of the branches of government. Instead, they gave it to none of them. They specifically excluded any of them from attempting to control it.

This was wise because to give control of speech to any one branch of government would have been to throw out the balance of power entirely. Speech is fundamental to how we govern ourselves. Speech is how we decide how to regulate everything else. The power to regulate speech, therefore, is the power to regulate everything. It strikes right at the heart of governance. Whoever has the power to control speech has the power to rule, and to overrule every other power and principle in the land.

And there’s the pain.

This is why the right of the people to make their own laws should not include the right to make laws controlling speech. Give up that right, and all the other rights will go with it. A glance at history will show several examples of people who had the opportunity to choose their form of government and choose to subject themselves to a dictatorship. The first thing they lost was their right to speak freely. But it was never the last thing they lost. That choice is a one-way door, a trap door, in fact, but that has not stopped people from walking through it, usually because they were promised relief from short-term pain. History, however, also shows the harm that follows when they do so. You can choose to put a noose around your neck to keep it warm, but you will surely hang for it if you do.

And this is why we have the concept of inalienable rights — the rights that you cannot give away even if you want to. It is to protect us from ourselves, to prevent us from doing long-term damage to ourselves for the sake of short-term pain relief. Because the long-term pain that follows is so much worse.

The peaceful transfer of power

While modern democracies are strongly buffered against arbitrary popular changes in law, they fully implement the principle of allowing the people — all the people — to choose their leaders. This means that such systems countenance the periodic transfer of power from one party to another. And they rely on that transfer happening peacefully. If the peaceful transfer of power does not occur, the government collapses and some form of dictatorship almost always arises in its place, at the expense of a very great deal of pain, both in the moment and in the days and years to come — pain which, inevitably, falls more upon the weak than on the strong.

How does a democracy ensure the peaceful transfer of power? It does so by maintaining a strong tradition of free speech. If the people who lose an election feel that their voices will never be heard again, that they will be prosecuted and hounded, that they will be deprived of their livings and their liberty, they won’t give up power willingly. They will fight. And when those in opposition feel that their voices are not being heard, when they are imprisoned for speaking out, when they no longer feel that the ballot box is the route to power, they too will fight. The way that you ensure the peaceful transfer of power is to make sure that a peaceful road to power remains open to those who have just lost the last election. But there is no such road without free speech.

This is the argument for free speech that nullifies the argument from pain. Whatever pain you think any group or person may suffer from speech, they will suffer far more pain from revolution. The people putatively harmed by speech are those without power. Such, at least, is always the claim of those who argue for restrictions on speech. But it is always the powerless who are trampled when the revolution comes, even (perhaps especially) if the revolution is conducted in their name.

Indeed, if there is a principled argument that justifies the choice of democracy over natural law, it is this one: Democracy creates the conditions for the peaceful transfer of power. Even if democracies do not always govern in accordance with natural law, it is hard to argue that the damage done by their transgressions outweighs the damage that would be done by a violent transfer of power. Also, the social and economic benefits that flow from the peaceful transfer of power are manifest and not lightly to be given up. The harm of surrendering them is almost incalculable. But the peaceful transfer of power can only be maintained, in the long run, when that democracy is founded on, and rigorously practices, freedom of speech.

There is an episode of The West Wing in which Will Bailey talks about the principle of the Veil of Ignorance: “Imagine before you are born you don’t know anything about who you’ll be, your abilities or your position. Now design a tax system.” The same principle applies to speech. Imagine before you are born you don’t know anything about who you’ll be, your abilities, or your position. Now design a speech policy.

So here is the challenge: design a legal system, a constitution, a fundamental law, that you would want to live under when your party is out of power. Design one for when your party is so soundly beaten that they elect not one single member to any executive, legislative, or judicial body. Think about it that way and I can promise you that the first article of your constitution will be untrammeled free speech.

The unworthiness of the censor

Here’s a multiple-choice question. Which of these options would you prefer:

1. Facebook does not regulate speech.

2. Mark Zuckerberg regulates speech according to his own precepts.

3. Mark Zuckerberg regulates speech according to the precepts of the political party currently in power.

4. Mark Zuckerberg regulates speech according to the precepts of an unelected cabal of activists.

Which cabal of activists, you might ask. Sorry, but that would be telling. After all, they are unelected. You can no more ensure that they are your activists than you can ensure that it is your party in power. So choose, but choose wisely.

There are some who would look at all the arguments I have made above and argue that with the right person as censor, all of these harms can be avoided, and many other harms eliminated too. Let’s suppose for a moment that this is at least theoretically possible. The question then becomes, how do you find the right person to be censor?

My first choice, obviously, would be me. But then I would think about it for a second and realize that the job of censor would be incredibly tedious, and would involve spending my time reviewing the worst kind of drek that the dark heart of man can produce. So on reflection, no thanks, not me.

Then it must be someone I trust implicitly. But who would be willing to spend their days reviewing the worst kind of drek that the dark heart of man can produce? Thinking about that for a moment, I realize that a person willing to do that job must either be incredibly censorious or incredibly depraved, or else incredibly motivated to serve a cause, and willing to prevent all contrary speech to promote that cause. And I don’t trust anyone who is any of those things. Anyone who was worthy to be censor would not want the job. Anyone who would want the job is not worthy to be censor.

And let us remember that the position of censor is a position of great power. The censor has the power to shape governments and shape societies. When you create a position of great power, you must expect that people eager for power will seek that position. And you must expect that they will get it. Because that is how politics works. The more powerful a position, the more ruthlessly it will be pursued. Even if you initially set up the office of censor with the most saintly and ideologically pure person you can imagine in office, the knives of the unscrupulous will be out for them on day one, and their successor will be cut from a very different cloth.

This is the final problem with censorship. There is no one worthy to be censor. And even if they were, it would not be the worthy that claimed the office, but the ambitious and the power-hungry.

And there’s the pain.

What is the number one weapon that the rest of us have to constrain the unscrupulous and power-hungry from seizing and abusing every office in the land?

That’s right. Free speech.

Still not convinced? If you are still an advocate of censorship, give me one example of an historical censorship regime that you approve of, that you would hold up to the world as a shining example of censorship preventing more harm than it caused.

Just one.

I’m waiting.

Comment below.