The Free Speech Vernacular: Conceptual Confusions in the Way We Speak about Speech
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The Free Speech Vernacular: Conceptual Confusions in the Way We Speak about Speech


Hello everyone. Thank you all for coming and thank you to
those who are watching us via livestream today. My name is Amanda Salz and I’m this year’s
president of the Texas Federalist Society. The Federalist Society is a national network
comprised of conservative and libertarian attorneys, judges, scholars, and students. And as a student chapter, the Texas Federalist
Society strives to promote freedom, federalism, and the rule of law. And we do so f- through facilitating debate
and discussion within our law school community. Today we’re thrilled to be co-sponsoring with
the national Federalist Society organization, a talk with UT, um, UT’s professor Tara Smith
from the Department of Philosophy, who will be discussing the conceptual confusions in
the way that we discuss the freedom of speech. Without further ado, I’m going to hand it
over to our Vice President of Speakers Ashley Terrazas, who will introduce our esteemed
speaker. Professor Tara Smith is a professor of philosophy
here at the University of Texas. A specialist and moral and political philosophy,
she turned her attention to philosophical issues in the law about a dozen years ago,
focusing primarily on questions surrounding judicial review. Her book Judicial Review in an Objective Legal
System was published by Cambridge in 2015. Other articles primarily concern religious
freedom and the rule of law. And her most recent article, The Free Speech
Vernacular, was published in the fall 2007 edition of the Texas Review of Law and Politics. In her broader philosophical work, Professor
Smith has published books and articles spanning such subjects as individual rights, the roots
of morality, moral virtues, justice in everyday life, forgiveness, pride, moral perfection,
ego- egoistic friendship, the nature of obj- objectivity and the value of sports to the
serious fan. Please help me in welcoming Professor Tara
Smith. Thank you very much. Uh, thanks very much to the chapter for having
me and thank you all for coming and for traipsing across campus I know in some cases. Um, I’ve frequently spoken at Fed Soc before,
but never here at my own campus, which feels a little odd. But I have to say when you walk in and you
see this, it really makes you feel strange, does- It’s like we need music or something. It has these background expectations as if
we’re going to rock and it’s just another dry academic… You know. Sorry, sorry. I also can’t see you though because of this,
which is depending on how it goes, [laughs] that can be good or bad, but I generally like
to see you. So excuse me for having to do that a lot. Okay? Does everyone have a handout? There was a single page handout that I hope
you got. I’ll make some reference to that at different
points. It’s not essential, but I think it can be
helpful. So I’m going to jump right in. The, the name of the title of the talk is
The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech. Sounds like something a philosopher would
do, doesn’t it? Um, in debates over the proper boundaries
of freedom of speech, we’re naturally alert to the meaning of certain pivotal concepts
such as offensive speech, right, or hate speech. What constitutes incitement or how far for
a person’s privacy rightfully extends against other’s speech. So there are these natural sort of magnetic
concepts and we argue about, well, what is hate speech and so on. Alongside such contested concepts, however,
stand peripheral terms whose misuse can be every bit as influential, but whose ramifications
tend to go unnoticed. I have in mind such terms as absolute and
exception, because these terms are not associated with particular ideological positions. It’s not, for instance, that those who invoke
exceptions systematically support more freedom of political speech or less, that they tend
to take one position rather than another on campaign finance, that sort of thing. Because there aren’t these neat ideological
divisions among people who use the terms exception, absolute. We tend to assume that those terms are just
neutral tools, part of the debate’s infrastructure. But I shall argue that confusions concerning
some of these seemingly incidental concepts impede clear thinking about how legal systems
should treat speech. Indeed, they often lend a cover of respectability
to unjustified restrictions. Uh, one question. Is this too loud? It sounds loud to me, but I’m okay in terms
of the, uh… Yeah? Everybody okay? Okay, thanks. All right. So what’s the plan? And there is an outline on the handout. If you wanted to take a quick peek. Uh, I’m going to consider for concepts absolute,
exception, censorship and freedom. I’ll begin by offering a few examples of each
being misused and briefly explain the errors involved. I’ll then address the damage. What harm does such confusions inflict? Why should we care about them? And then, finally, I’ll turn briefly to the
roots of these errors. What underlying beliefs foster these mistakes? While a handful, I think, are at work today,
I’ll simply focus on one to provoke you’re reconsidering a much acclaimed friend of free
speech. Okay? And this is based on a longer paper, which
as Ashley said, was recently published in the Texas Review of Law and Politics, so I
recommend that you look at that for further elaboration and, you know, just perfect answers
to every question that you’ll raise later as we all know. Okay. A few presuppositions, just a little bit more
preliminary before we get into it. I’m talking about misconceptions of some of
these, these four concepts, right? Well, obviously the claim misconceptions,
I’m relying on definite ideas of the correct meaning of these four terms. So let me state upfront, I believe that the
right to free speech is absolute and admits of no exceptions. That censorship consists of government restrictions
on an individual’s freedom of speech and that this freedom consists of the absence of others
forcibly restricting one’s speech. But that’s not the thesis of this paper and
I won’t offer a direct case for it here. My present aim is the more modest one of conceptual
cleanup. To carve these categories that inform our
thinking about speech more accurately so as to help us reach valid conclusions about the
proper boundaries of free speech. Without expecting you to necessarily agree
with those larger views of mine, I do hope to convince you that cleanup is needed because
the field of debate is studded with confusions. And while my aims are somewhat modest, the
stakes are large. For as long as we labor under blurred conceptual
boundaries, we will reach misguided conclusions and consequently protect speech that should
not be protected and restrict speech that should not be restricted. Okay? Okay, so let’s turn to the first pair of concepts,
absolute and exceptions. A few examples of how these are commonly misused. And, again, I do have more examples in the
paper, but just a few. Now as I cite these, you want to listen for
the implicit meanings of these terms of, you know, whether it’s absolute or exception. Just listen to what seems to be the implied
meaning of the term as a given figure is using it. Okay? So Typical is an editorial in the economist,
and I think I’ve got this on your handout, which after lauding freedom of speech as the
oxygen of democracy, concludes quote, “So the right to free expression should be almost
absolute. Bans on child pornography and the leaking
of military secrets, on the deliberate incitement of violence are reasonable.” Close quote. The United States Supreme Court has held that
the right of free speech is not absolute since certain restrictions on speech are fine. Excuse me. Um, I’ve given you a few others on the handout
from a couple of law professors, Jeremy Waldron and Eric Heinz, but I won’t read through those
here. Okay? In the same vein, people frequently refer
to restrictions on libel or incitement as exceptions to free speech. One doesn’t have the right to leak classified
national security information, so they say exceptions are commonplace. Harvard psychologist Steven Pinker while defending
free speech concedes, and this is quote, this is I think on the hand out. So this is Pinker and I have to say I like
Pinker in general. It pains me a little bit to be critical here
because I’m generally an admirer. I have a lot of respect for his work. Okay? But I think he made a mistake here. So what Pinker says is, “It’s true that free
speech has limits. We carve out exceptions for fraud, libel,
extortion, divulging military secrets and incitement to imminent lawless action.” Close quote. Okay, so that’s a few examples to try to keep
in your mind. What’s wrong with this picture? What are the confusions in how absolute and
exceptions are being used? Now, admittedly, the term absolute, that can
have somewhat different meanings in different contexts. When we’re… You know it’s like in metaphysics. I mean philosophers can definitely, you know,
they have definite conceptions of the absolute in certain very specialized areas. But when we’re discussing a prescriptive principle,
such as rights, rights to free speech, absolute means holding paramount authority within its
domain. To say that a principle is absolute means
that within its domain it admits of no exceptions. An absolute ruler, for instance, his rule
is unconditional, right? He is not subject to constraints imposed by
a constitution. Consider. A lot of people would say you’re right to
life is absolute. We don’t question that when we’re reminded
that you’re not legally free to physically assault people or to steal others property,
right? The right to life does not protect that, yet
it is an absolute. Meaning as long as you respect other’s rights,
your right is sacred, others are forbidden from infringing it. No exceptions. I have to see you. You are out there. Okay, good. The misuse of this concept absolute frequently
confuses strength of authority with scope of authority. Think about Louis XIV, right? Absolute monarch, par excellence. He was the textbook case from which many of
us learned the concept of absolute rule, absolute monarchy. But now think about it for a minute. Even Louis, absolute monarch he was, he was
the king of France. He wasn’t the king of Britain or what… Excuse me. He wasn’t the king of Britain or Westphalia
or Ethiopia or the Andes, right? Does that mean that we mis-describe his power
when we refer to it as absolute? No, his power was absolute, yet it was confined
to a bounded domain. In France, his authority was subject to no
other, second to none. So my point is strength of authority is distinct
from scope, the range over which authority is valid. And the fact that the right of free speech
isn’t boundless, doesn’t mean that isn’t absolute. Okay? So what about apparent exceptions, legal restrictions
on libel, incitement and so on? Shouldn’t the legal system restrict the person
engaged in those types of speech? Yes, but not because they constitute exceptions,
rather as the proper application of the absolute principle of free speech. It’s crucial to recognize that a person’s
freedom of speech never encompassed speech that violates others rights. The so-called exceptional case is not within
a person’s legitimate authority to begin with. Think back to Steven Pinker for a minute and
the quote I read, and that’s on the handout from him. Right? He thought of legal limits for fraud libel,
legal restrictions on those. He thought of these as exceptions to free
speech. But now let’s think about that. Right? What would these be exceptions from? From your right to pillage, loot, take from
another what’s his? These limitations would be exceptions only
if one supposed a general right to invade other’s rights, but that would make no sense
since it would destroy the whole concept of rights. My point is it is not an exception to recognize
the boundary of one’s authority. My neighbor, literally my neighbor Steve,
just 20 minutes north of here in Austin, right? My, my neighbor, his backyard isn’t an exception
to my property. The fence between our yards designates the
extent of each of our authority. Right? So, yes, some speech should be legally restricted,
but not as an exception, rather because that is what the absolute principle properly understood
requires. Okay. So let’s turn to the other two terms, the
other two concepts, censorship and freedom. Here my general concern is of concept creep. That these terms have both been extended to
encompass an ever wider and more disparate array of perceived transgressions. People commonly these days complain about
things such as market censorship. A person’s boss tells him he can’t wear a
certain tee shirts, certain messages on his tee shirts at work and he complains he’s being
censored. Um, you might rec- there a m- You know, there’re
just a stream of episodes like this, but one from the past year. Um, in Manhattan, I think it was the, uh,
Shakespeare in the Park last summer, there was a very controversial production of Julius
Caesar because people thought it was saying things about Trump or what to do to Trump
and so on. So certain sponsors such as American Express
withdrew their backing of the production and a lot of people cried, “That’s corporate censorship,”
right? Private companies such as Facebook or Twitter,
they bar certain messages from their services, maybe because they’re misogynistic or racist
or the like. And a lot of people say, “Oh, they’re censoring
now.” Right? And it’s not just, oh, you know, us uneducated
people who read and react quickly to these kinds of events. A few years ago when Yale University Press
refused to publish, it was publishing a book on the whole Danish cartoons controversy,
but it refused to publish in that book the actual images, the cartoons. Right? And when the press, Yale University Press
decided to do this, many academics accused it of censorship. British scholar, author Timothy Garton Ash
in a recent manifesto defending pretty wide freedom of speech, advises us to remember
as if you know, we all know this, we just have to be reminded. “Remember,” he writes, “that censorship is
exercised by religious organizations, corporations, media owners, criminal gangs, political parties.” Close quote. In the United States some years ago, the head
of the FCC, the Federal Communications Commission, blithely declared quote, “There’s censorship
by ratings, by advertisers, by networks …” Close quote. A Wall Street Journal… Uh, yeah, a Wall Street Journal columnist
about a year ago. This was Holman Jenkins for those of you who
read the Journal, um, he was urging in a column, he was urging Goo- Google and Facebook to
refrain from quote, “Excessively censoring their users.” Close quote. And since we tend to assume that censorship
infringes on a person’s freedom of speech, what that freedom is has correspondingly been
bloated to amazing proportions. A few examples here. This first one’s a little complicated. Consider the common practice of measuring
different nations’ freedom of speech by their quantity of speech. What I have in mind is something like this. You’re reading a magazine article and it’ll
report figures about, let’s say, the number of newspapers in a given country in India
or England or wherever, right? The number of newspapers or the number of
people who post on Facebook in that country or the, the number of people who use Twitter,
right? They’ll refer to these figures and treat them
as indicative of the country’s freedom of speech. You’ll read things saying, well, you’ll read
things like a greater percentage of the British use Twitter than Brazilians. Therefore, the Britain has more robust freedom
of speech. Assumption, greater quantity of speech, greater
number of papers or readers or tweeters or whatever. Right? Equals more freedom of speech. But if you pause and think about that for
a minute, right, that doesn’t hold up. Well, a high volume of speech is frequently
a byproduct of freedom of speech, it’s not what it is. They’re not one in the same thing, right? If we learned, for example, that a greater
percentage of Turks use Twitter than British, we’d think twice before concluding that Turkey
enjoys greater freedom of speech given all that we know about Mr. Erdoğan. Right? Maybe those people are just more tech savvy
or they happen to like Twitter a lot or they’re more vocal or bold, they have more to complain
about or whatever. Okay? Another example concerning this expansive
notion of freedom. Little over a year ago, right around the time
that the Trump administration was taking over, there was a lot of fear expressed in the country
about freedom of press speech and political commentator Bill O’Reilly, you remember Bill? Okay? Anyway, Bill, uh, uh, he weighed in that sense
American media are biased to the left, we don’t have a free press anyway. As if freedom of speech and objectivity of
speech, bias or lack of bias, right, as if freedom and bias or objectivity were the same
thing. Brian Lighter, a very influential law professor
at the University of Chicago who had been here before, uh, moving on to Chicago. He had been a professor here for several years. Brian Lighter in a recent piece in the Sydney
Law Review, argues basically this. Given that what a lot of people have to say
is useless, we should temper our adoration of free speech and not grant it such extensive
protection. Lighter argues quote, “There’s no free speech
in the courtroom,” right? Where people are subject to rules of evidence
and almost no one thinks that there should be. He goes on to reason, “We also accept restrictions
on speech in a classroom or in scientific research. Therefore, we’re justified in placing more
restrictions, legal restrictions, on all speech.” Problem here. This req- this relies on a flagrant equivocation
between freedom of speech and standards of constructive speech in a particular context. But freedom is not the absence of all standards
of critical judgment. It’s not the absence of evaluation, right? I mean, you can still talk about, well, is
this prohibitive? Is this… What’s the logical strength of the thing that
she is saying? What’s the pedagogical import of the thing
that she is saying? Right? We can still assess in a courtroom or in a
classroom and so on what’s being said by all sorts of other measures, but they’re not the
same as judging the freedom of speech. Again, freedom is not absence of all critical
judgment or evaluation. It’s the absence of coercion. Your speech is free when it isn’t forcibly
restricted by other people, forcibly restricted by other people. My, my larger point. So bearing through these examples, my larger
point is simply that people sloppily sling around the phrase freedom of speech to mean
several differing things and often inaccurate things. I can’t explain all of these different meanings
here, but on the handout you might want to look at it later, I go through about seven,
I think, very common confusions of freedom of speech with something else that don’t really,
uh, get to the nature of freedom. Okay? So what about the fourth term, censorship? How is that misused in the cases cited, that
kinds of claims that people make? You bar me from Twitter, you’re censoring
me. I’m not on Twitter, so maybe I’m not as sensitive
to being not censored, but something else. At any rate, how are they using the term censorship
in cases like that? Essentially, [laughs] they’re using censorship
to designate pressure that results in undesired consequences. I’m censored when others impose unwelcome
pressure on me. Now, properly censorship means government’s
forceful obstruction of your right to speak. Historically, the term censorship referred
to state restriction of thought. A censor was a government employee. There are offices in different countries. You know, f- people got, got paychecks for
being censors. Right? A censor was a government employee who reviewed
books, performances, correspondence. He could deny publication, confiscate your
newspapers, shutdown your theater, put you in jail for saying those things. And this usage isn’t simply historical accident
that’s convenient for terrorist purposes, right? The reason why censorship means exclusively
government restriction of speech is, is twofold. And, again, I won’t go into depth here, but
on the, you know, first it turns on the fund- respecting, recognizing the fundamental difference
in kind between the forced and the free, between tools of persuasion and tools of coercion. And second, censorship refers to government
restriction of speech. Because the freedom to speak goes hand in
hand with the freedom not to speak and not to support speech or ideas that you disagree
with. But if private agents, you know, the owners
of a business, the owners of a magazine, the, the employer who doesn’t want the, the waiters
at his pizza place wearing certain tee shirts or whatever, or American Express, be it big,
small or indifferent, right? If a private agent, directing his resources,
according to his beliefs, if what he was doing there could constitute censorship of others
and the government could punish him because he’s not supposed to censor people, then his
freedom of speech would be erased. If you’re compelled to support ideas that
you disagree with, your right is neutered. Now, I do want to be clear about something. I don’t think this gets enough say in most
discussions of freedom of speech, enough, enough play actually. To say that inaction is not censorship because
I’m saying we overuse that term, a lot of stuff that people call censorship isn’t. Well, to say that an action is not censorship
is not to immunize it from all criticism or all just criticism, all valid criticism, all
important criticism. The analysis that I’ve just given you, I would
say Yale University Press in that example, the book with the Danish cartoons, it wasn’t
censoring. It has a right to publish what it chooses. But that’s just one issue. Was it censorship or not? Right? It was, I think, cowardly. It betrayed the ideals of scholarly inquiry. It showed itself unworthy of respect as an
academic publisher. What’s salient though is that the moral way
to exercise a right, the right to free speech and whether or not one possesses that right
are, again, two distinct questions. The upshot. Properly freedom of speech means the absence
of others restricting your speech by force. It’s not the absence of unpleasant repercussions
from your actions. Other people are not obligated to maintain
your comfort zone of preferred pref- pressure- pressures. Those that you regard as tolerable. Freedom of speech is not a feeling marked
by the absence of uncomfortableness. Okay, let me take a sip of water and move
on. Let’s return to the damage then if you’re
following on the hand out, the outline. I mean, at this stage, I hope, one might think,
“Okay, fair enough, fair enough. But isn’t this just word games? I mean, maybe you’re just manufacturing much
ado about not all that much. What’s the harm with misuse of these terms?” Well, I think the harm is significant. For starters, it discourages us from carefully
examining why certain speech should or shouldn’t be protected/ When we instead lazily recite,
“Oh, you know, there are always exceptions. Nothing’s absolute.” We weaken our grasp on what the proper boundaries
of free speech are, which means we’ll police those boundaries in all the more lax and error
prone way. And this feeds more directly into why this
matters. If your right to freedom protects you from
four or five different things, because, again, we’re using that term to mean four or five
or six or seven different things, right? It protects you from an unpleasant re- reaction
of other people or poor quality speech. You know, Brian Lighter, he doesn’t want people
speaking stupidly, right? If, well, if your freedom to speech is supposed
to protect you from all of that, then they are going to be an awful lot in- of incursions
on people’s freedom, right? It’s going to be really easy to violate somebody
else’s freedom of speech, which will invite the government to step in to protect them
from that. In other words, this authorizes unjustified
government restrictions on speech. To be even more specific, if we misclassify
private actions as censorship, the government will forbid individuals from spending their
advertising dollars as they choose or from exercising their editorial judgment and running
their magazines, their newspapers, right? In other words, the government will restrict
them from exercising their rights. And, more broadly, misuses of these concepts
give incursions on free speech a good name. When we condemn as censorship actions that
are not, that are not truly censorship, we make censorship seem not so odious. After all, some such pressures so-called censorship
exerted by private parties will seem reasonable to people. Right? People will often think, as I’m sure some
of us have at times, “Well, gee, why should Twitter be compelled to convey messages that
it doesn’t want to? Any more than a philosophy journal should
be compelled to publish an article that Tara submits or the, the Times should be compelled
to publish your letter to the editor, right?” If it’s all censorship, right, if we throw
it all into that loose capacious, uh, cabin, well then censorship, some censorship seems
fine. Right? The danger in other words is that we normalize
censorship. And think to a couple, back to a couple of
the examples that I read, right? When a government official, the head of the
FCC some years ago, when he declares again to quote him, quote, “There’s censorship by
ratings, by advertisers and so on.” Notice what he’s doing. He’s conveniently saying, “Don’t get mad to
the government for censoring. We all censor. It’s all the same.” That’s normalizing. When the Wall Street Journal columnist Jenkins
criticizes Google and Facebook for excessive censorship, implying that some would be fine,
that’s normalizing. I mean, basically what we’ve got here is a
cry wolf phenomenon. And as the historian Robert Darnton observed
quote, “If the concept of censorship is extended to everything, it means nothing.” Close quote. In the end, the damage is that misclassifying
these phenomena blurs important differences and emboldens the government to restrict rightful
speech. Okay? So I do think our freedom, our freedom to
speak, is what’s on the line in these seemingly innocuous, uh, debates about terms. So let me say a little bit about the roots
of these confusions. Why do people make these mistakes? If they are the mistakes that I’ve portrayed
them as. If we are to correct them, it can always be
helpful to understand where they’re coming from. So what are some of the deeper roots beneath
these? Now, ultimately, I think a handful are at
work, but I’m not going to talk about all of them here. Today I’m just going to focus on one, utilitarianism. The ascendancy of its instrumentalist, defense
of free speech has been particularly corrosive, I think. I’ve made a note on another stream that feeds
this on skepticism on the handout, but again, that’s just something if you want to look
at it later you can. But let’s think about utilitarianism for a
few minutes. And how many of you, by the way, have read
John Stuart Mill, in particular his On Liberty and his chapter in- or simply his chapter
in On Liberty on freedom of expression? Has anybody read that? I would think… Well, not as many as I would have thought. Okay. Utilitarianism. First, let’s notice how it cuts against the
absolutism of free speech. For a utilitarian, nothing is absolute. Every should is contingent on social utility. To reap maximal utilities, sometimes you need
to restrict speech, so exceptions are no brainer. Utilitarianism also abets the confusion of
censorship with private sanction. For if social utility is the ultimate aim,
then the means by which that’s achieved, whether those means are government force or private
and voluntary, that’s immaterial. Results are all for the utilitarian. How we reach those results, that’s secondary. Anything that doesn’t maximize the sought
results is deemed censorship, bad. Now, John Stuart Mill’s On Liberty has been
a great aid to the cause of free speech. In some ways. It makes several strong arguments for the
value of open dialogue, rigorous debate, and even if you haven’t read him directly, I’m
sure that some of- I’m going to recite a few of them now. I’m sure some of these will be familiar to
you because they are often invoked and there are a lot of good points that he makes here. He, for example, he, he explains the benefits
of having your views challenged, having to defend one’s beliefs. He speaks of free, open exchange and dialogue
as helping to keep our convictions alive, understood. Rather than just becoming ossified, stale,
dogmatic prejudice, right? He discusses the dangers of assuming the infallibility
of you, yourself, your views on a topic without having allowed questions, serious challenge
to your views. He talks about the many faceted nature of
certain truths, which can only come out fully when you have robust, open debate, right? He offers a lot of seemingly helpful ammunition
for the cause of free speech, but I say seemingly. These blessings, I think, have also been a
curse in a certain way and I think it’s a way that many people who really, you know,
many of the kinds of people who attend Fed Soc events, many liberty oriented people,
can fall into in thinking about freedom of speech. The reason why I think some of these blessings
have also been a curse is that the instrumentalism of utilitarianism cannot sustain a right to
freedom of speech. All that such consequentialist arguments get
you is a permission, conditional. You may speak as long as you have something
useful to say, right, which sounds just like that Brian Lighter article that I was quoting. It leaves a firm foothold for restrictions
on speech that the government deems not very helpful, which it increasingly invokes to
silence voices that some find offensive or too divisive or too far from the mainstream. The utilitarian case is seductive, I think,
in part because it’s a relatively easy case to make. It’s much easier to show the practical benefits
of open inquiry, which are real and which are profound historically, right? It’s much easier to show these practical benefits
of how historical discoveries in the sciences, among other areas, have been propelled by
the candidate airing of clashing views than it is to adopt the alternative defense. Explaining along with John Milton and John
Locke and others, the futility of force, the inability of physical power, the tools of
the magistrate as they talk about it, guns, clubs, handcuffs, the kinds of things our
governors use, right? It’s a lot easier to explain the million benefits
than it is to explain the Lockean impossibility of using physical tools to change a man’s
mind, to change a man’s thinking, and to talk about the value of a person’s doing his own
thinking. All of that, that kind of Milton/Locke line,
that requires a much deeper dive into the nature of reason and choice and beliefs. But- so I think that’s part of why, well,
you know, it’s so easy to make this case, the, uh, utilitarian case. Problem. In fact, your right to free speech doesn’t
depend on the social utility of what you have to say. And the utilitarian case is actually merely
a case, again, for some speaking, for socially useful speaking, rather than for anybody’s
title to speak. The more enlightenment view, again, the Locke/Miltonian
view by contrast recognizes that your life is yours and you’re entitled to lead it however
you please, speaking or not. Whether you have worthwhile things to say
or not. Speaking is simply one way of exercising your
general freedom of action. The single question for the government to
ask of any specific speech is, does it infringe on other’s rights? That’s all that should matter to how the government
should treat it. So here, the upshot. Defenders of free speech have been in thrall
and… So defenders, people who I think are good
guys, right? Yeah, I’m on their side, but I do think most
defenders of free speech have been in thrall to utilitarianism because it offers a good
defensive speech, of robust dialogue, which is tremendously valuable, but it doesn’t support
freedom of speech. It doesn’t justify rights to free speech. When rights live by utility, they tend to
die by utility. Okay. Uh, in closing, let me say two things, two
points in closing. First, and this harks back to something I
said a little bit earlier. Even while I have insisted on precise usage
in assigning these four terms, I do want to underscore the importance of other normative
standards that still apply to a person’s speech besides its freedom, right? Questions of freedom and cen- you know, is
it free or is it censorship? Those questions are important, but they don’t
exhaust the field of critical appraisal, so we should defend freedom of speech. We should be careful to understand exactly
what that means and what it doesn’t mean. But we should then also be prepared to condemn
speech that is immoral, evil, completely irrational, completely destructive and so on, right? Def- so to speak, to defend the racist’s,
uh, right to speak, but explain what the hell is wrong with the idiocy that he’s spouting. Okay? And I think we too often hide behind, “Well,
he’s got the right to say it,” which he does, uh, f- we then retreat into not actually addressing
and explaining to some people who still need the explanations of what’s wrong with the
substance of what a person says. Okay? So I in no mean, also I had no m- in no way
mean to be minimizing the significance of that. I’m just saying that it’s a f- different issue
from the freedom of speech where your speech stands, vis a vis the legal system. Okay. Secondly, finally, a reminder of the stakes. I’ve called attention to four concepts that
those debating freedom of speech typically use either equivocally or simply inaccurately. And while these can initially seem innocuous,
peripheral to the meatier disputes, their misuse is more consequential than we suppose. How we categorize things. Is this right absolute? Is that action censorship? How we categorize these things directly determines
how the government uses force and what restrictions we think it has the authority to impose. So again, mislabeling leads to mistreating. By lending the aura of respectability to illegitimate
government restrictions, we soften people’s resistance and I think individual’s freedom
is progressively, steadily suffocated. So I do think we have reason to worry here. Okay. We have some time for questions, so if… They’re going to bring out a microphone, um,
if anybody has questions, happy to take a few. So if you would step up to the mic to ask
your question and I’ll step away because I think I can see you better from over here. So feel free and you can hear me, I’m on,
right? Good, good, okay. Hi. Hi, um, that’s working. Um, so you differentiated between censorship
from the government and censorship from a private party. And in, in your article, you talk about employment
as a contract that you enter into and there’s. You know, certain, um, concessions because
of that. But what if your employer, you know, is the
government and speech is restricted in that sense? Is that a limit on free speech or is that
something else? Okay. That’s a good, interesting question. Um, if the employer is the government, first,
I should say I haven’t thought that all the way through. Okay? That kind of thing. But if it’s government it is different. However, I think there can… Because it’s the government saying you can’t
say those things, Tara, right, as… But in so far as it’s an employment relationship,
I don’t have to work for the government. I could try to get a job, you know, I can
try to be employed by some private organization, and stuff, right? But if I choose this job then as with any
job, I choose it on the terms that are offered and I agree or not. Now typically you’ll like some of the terms,
you don’t like others. You’ll wish you had longer vacations or whatever. But if I agree to it, I can’t then complain
that, you know, unless a gun was put to my head to agree to it. So, again, in so far as it’s an employment
relationship, nobody has to work for the government. If you choose to, you are subject to their
restrictions just as you would be the restrictions of a private employer. However, I think there’s a little bit, at
least a little bit more to say. There’s probably a lot more to think about
here, but there’s at least a little bit more. Um, the government, in doing anything that
it does and everything that it does, does not have the same discretion properly as a
private, as a private organization. Right? The government is spending our money and it
exists for a specific purpose to protect our rights. So everything that it does has got to be geared
around what’s the best way, the most effective and efficient way we can do that. So it would be, you know, for it to then come
up with some speech codes that it put on its workers in this area, you know, in the Defense
Department or in the post office or whatever [laughs] it might be. Right? Well, unless those speech codes had some actually
legitimate rationale in the effective functioning of that particular office of government, it
would be a complete abuse of its authority, right? So, be- so I mean there are reasons for which
it shouldn’t have codes. There are conceivable circumstances in which
it might be that it should restrict its employees, um, vocabulary on the job, let’s say in, in
certain kinds of sensitive offices and so on. So it does get a little bit more, you know,
there’s a little bit more to it. There’s an interesting kind of case that you
raised. Other questions. Hi. Hi. Uh, so unfortunately, I have not read your
article yet, so I apologize if this question- That’s good ’cause then I can just say, “Oh,
it’s all in there.” Great. See, thank you. So I’m kind of wondering how much, um, some
of your argument is premised on maybe a negative conception of liberty, uh, like Hayek or Berlin’s. ‘Cause I’m looking at, for example, G here,
you say like, confusion of freedom to do something with the ability to do that thing. And I might say, well, yeah, if you’re, if
you believe in negative liberty then that’s right. But if you’re a positive liberty person then
you say, well, no, that, G is not a confusion, G’s an accurate statement. Yes. So I just kind of wonder how much is that
like baked in or important? It’s baked in. Okay. Yeah, it, yeah, it’s definitely, it’s definitely
baked in. And you know, at the very beginning of the
talk I said something, I mentioned a few presuppositions and I probably didn’t mention all the presuppositions,
but I’m definitely coming from and you’re completely right. Um, you know, to pick up on this, I’m definitely
coming from a certain understanding of what freedom in general is or, you know, freedom,
vis a vis the government, political freedom, legal freedom, that kind of freedom, right? Um, you know, to then just have a paper on
freedom of speech. I’m trying to understand freedom in a certain
way and I am. I will say I have- sorry if I’m offending
people here. Well, I’m not that sorry if I’m offending
you, I’m sorry if you disagree with me and think this is… Well, I’m sorry if you disagree with me, but
I have never understood so-called positive liberty. I’ve tried. I, I really don’t understand how it can work. Um, but that’s another, I don’t know, another
discussion or another, yeah. Thank you. Sure. Other questions? Good. Uh, a lot of your talk has proceeded on the,
uh, another assumption that speech and meaning are co-extensive. That is, that meaning is, or always will be
easy to identify. H- how, how w- and the law does the same thing. How would the analysis be different for things
like, uh, implications or connotations or even something like implicatures? Um, I guess the idea being does the government
have license to, uh, go a little further in restricting speech on the grounds that, uh,
speech may not al- uh, that meaning may not always be easy to capture? If it’s not-
Apparent or yeah. -diminutive. Um, that’s an interesting question, but I’m
not fully sure that I get it because I’m not sure of why you think that I was implying
that speech is always, you know, always… The meaning of speech is always just kind
of apparent on its face. Self-evident. I don’t, I don’t think that. I certainly think that, yeah, sometimes what
somebody is saying, ooh, I’m not quite sure what they mean or y- um, but I’m not sure
what in my paper made you think that I would deny that or if so, is there something? I’m, I’m sorry, I should also say I haven’t
read the paper [crosstalk 00:46:24] Sure. No, but I mean just in the talk, I don’t [crosstalk
00:46:26] I’m not sure why you think that I would think that the meaning of speech has
always got to be clear. I do think there are cases where even though… I mean, I don’t think… Also, let me just add, add something else. Uh, I don’t think man, if you buy my view
that all the hard problems dissolve and the waters part and you can go home early. No, no, I mean, I do think there are still
hard cases for the government, including, you know… Well, this gets a lot more complicated, but
I definitely think there will still be some hard cases, but I think those are compounded
when we work under these conceptual confusions that we’re not even using the terms free or
censorship in a consistent way and in a logical way, but that’s another thing. Um, but anything more on this thought of… Yeah. Uh, sure. Yeah. And I wasn’t trying to say that you, you know,
had a wrong assumption or anything. I just I, I was hoping you might comment further
on, uh, [inaudible]. Does the law in particular, uh, tend to assume
that meaning is, is always clear? I don’t think so at all. Or certainly when you think about judicial
review and the kinds of cases that do become the controversial cases where, gee, there
seem to be reasonable grounds for interpreting just the, you know, the law itself. Um, what was the case that they were hearing
yesterday about attire, right? I don’t mean tires on your car. I mean, what you wear. Uh, just yesterday, wasn’t it that the Supreme
Court was hearing this case about some law in Minnesota about what you could wear to
the polling place and there are questions about, you know, and that’s exactly it fits
in with the sort of thing I was talking about. Right? Well is that saying something when you, when
you wear a tee shirt that says, “Me too,” or that says, “All lives matter,” or, “Black
lives matter,” or it’s the text of the first amendment or it’s the text of the Second Amendment. And what does it mean and is that political
speech or not? I mean, there are some interesting questions
that the answers to them are not at all self-evident in cases like that. Right? And I think in many other cases, you know,
is he just talking or is that part of a real plan to commit a crime? I mean, think about incitement, think about
threats, think about, you know, they’re issued through, I mean a threat is issued in words,
but when is it a threat and what is it just a sort of ominous, eh. I mean, the law has had to try to figure out
some boundaries here and I definitely think that they’re hard questions there. I don’t think they’re insoluble questions,
but, um, so I don’t mean to oversimplify the work of the law or th- or think that or say
that the law has to take a simplistic view of meaning. Um, part of what’s important, I think, about
paying attention to context, which I do think is very important, um, is that that can matter
a lot to exactly what is meant by the very same words. So different situations with different audiences. You say raise the roof and sometimes you mean,
you know, I’m telling my construction workers what to do and sometimes I’m saying, yeah,
you’re going to have a set like this. You need to do something about it. [inaudible] Sorry, pathetic. Uh, other questions. Yes. Is there such a thing as a non-absolute right? Um. Oh man, that’s a good question, interesting
question. In the sense that, I mean, I’m speaking, and
this was something I didn’t refer to at all, but I’m definite- What I have in mind are
natural rights that then the government, the law, legal system, should respect, right? Um, or should protect not just respect, protect. We can make an agreement with some conditions
involved such that I would have a right maybe to your performance of mowing my lawn or painting
my house on certain conditions and, you know, such that it would be a conditional right
and I’ve got to, um, live up to my end of the bargain and so on. So p- so individually created rights and responsibilities
I think can certainly have conditions. We can also think about conditions in the
sense that a person might do things that would forfeit some of his natural or originally
absolute rights. So actually th- actually that’s a good- I
need to think about that more. Um, uh, ’cause I could s- yeah, okay. I can see that being a, uh, requiring a little
more qualification of some of what I said about, um, absolute. [crosstalk 00:51:02]
I mean, I’m wondering, you know, the difference between a, and a condition or an exception
and a boundary. Um. Well, s- here, I guess the, the bigger picture
that I really am concerned with is, when we’re not careful about using the term exception,
we’ll tend to say, “Well that’s, you know, there are always exceptions,” because we say
that in all sorts of wro- not just about the law, right? People love to say, “Well, there are always
exceptions,” and we tend not to pay close attention then to, well, when should a so-called
exception be made or when would it be legitimate and when would it not be legitimate? So let’s come back to some of the kinds of
cases that arose here, right? Where people will say, w- okay, but, yeah,
you should have the right to free speech but you shouldn’t be free to libel people or fraudulently
misrepresent the car that you’re selling them and s- or divulge national s- And I agree,
but are those exceptions or not? W- you know, I agree. Why do I agree? That’s the, the conversation that’s got to
be had. That people have to understand here is why
libel should be treated differently and here is why the sheer, um, writing of a political
track by Karl Marx or somebody who you might consider, oh my God, ominous and so on, why
that’s different from actually plotting a crime. We’ve got to look into those differences so
that we maintain the proper standards for knowing what speech should be free, freely
allowed, not restricted by government and what shouldn’t be. But when we just kind of throw them all into
these, we have these couple of catch-all categories. Nothing’s absolute. Always exceptions. How convenient and how lazy our thinking tends
to be such that well then somebody says, “Well, come on. This should be an exception,” and if you don’t
have any understanding of why the law should treat libelous or fraudulent speech differently,
you’ll have no basis on which to say, “No, no, no. That’s not a good exception.” So that’s the, the, the bigger picture background
that’s informing my concern about let’s clean up some of these. And I should say I haven’t thought… I mean, I have ideas on why, I definitely
have ideas about why think libel should be treated differently in fraud and so on, but,
but I also respect that there are some hard questions within those lanes that need to
be, that need to be answered? Yeah. Thanks. Time for one or two more, I think. Anybody? I have a question for you. So you talked about the scope of free speech
being, um, I guess the point where it starts hurting other people, but what if the injury
isn’t very concrete or individualized and, and kind of the, an example you mentioned,
like, briefly in your talk and just something that came to mind is like, you know, distributing
child pornography. Like, it’s, I mean, I think that hurts society
as a whole for sure, but it’s not a very concrete and particularized injury. Yeah, yeah, yeah. And so how do you justify… I mean, is that government censorship, you
know, forbidding that? Or is it, or is that, can we say that that
is not free speech because it’s hurting society as a whole? And then where would that line be? Yeah, yeah, okay. A couple of things. And I didn’t… Uh, speech should be free. You have a right to say whatever you want
up to the point, I didn’t say of harming other people or something even close to that, of
infringing on their freedom, infringing on their rights. And here again is a case where I do think
John Stuart Mill is misleadingly vague because he is famous for advocacy of the harm principle,
in general, not just in regard to free speech or free expression. But in general, Mill says, um, you should
be free to do anything up to the point at which you harm others. Well, harm is a very capacious term. You can be h- He broke up with me after two
years. There’s a real cen- I mean, you kn- No, she’s
really having a hard time for th- Right? I mean there are all sorts of ways which I
won’t bore you with now, but there are all sorts of ways in which one might reasonably
be said to be harmed by the activities of others. The subset of harms that I think is the proper
role of the government to police is infringements on our freedom. Now again, that’s going to require, and this
is something I’ve done some other work, but a definite picture of freedom and why we have
rights to freedom and so on. So when then, when you c- just to say a word
on, uh, the c- pornography case that you raised because it’s very interesting and it’s actually
related to a paper I’m working on currently on the speech action distinction, but I’ve
also been reading a lot of arguments about hate speech and I do think one of the, I definitely
oppose restrictions on so-called hate speech, but I think one of the better arguments for
such restrictions, um, better at least in some respects, are those arguments that try
to appeal to harm to the body politic, let’s say, or society as a whole. But there are a few problems there and I think
you, yourself, already referred to at least one of them. Um, which is sympathetic as we might be with
the idea, gee, this pornography apart from being disgusting. At least, sorry. That’s my take. Um, may have deleterious effects on the way
men think about women or depending on the pornography, I guess on other things. Um, lots of things may have d- deleterious
ef- Right? It’s what’s the principle and that’s where
you were going, which I think is what you’ve always got to ask about these things. You’ve got to elevate the perspective from,
ooh, that’s really nasty speech or that may do some bad stuff. Right? We’ve got elevate it to would it do bad stuff
of the sort that’s the government’s job to care about? Government’s job is not to make us all nice
people or moral people. It’s to make us respect one another’s rights. Now there’s a lot of other work for a lot
of other of us to do about how to be nice people or moral people and all that, but that’s
not the government’s job. And, again, the, you know, the kind of principle
that one would be operating on and well this will harm society. There are a lot of books in my office that
I think the reading of which would, you know, if people really took these books seriously
and believe them, um, would have very harmful effects. I don’t think that’s an argument for people
should not be able to read these. Right? And part of the reasoning there is that the
only way to figure out what the hell is true or right is through reading all sorts of ideas
on what the hell is true or right, including the most foul and disgust and so on. But if you can show, oh, I mean, I’m always
open to it like, but if you can show in a given case this person, this individual or
these individuals suffered demonstrable, material harm as a result of what he was saying. Be it pornographic or libelist in a, in a
genuine case of whatever, okay, then, then we’ve got a legal case to have. But I do think you have to show that kind
of particularized, um, harm. Thank you. Sure. And let me say, I mean, I think the questions
just indicate, oh, there’s a lot of hard stuff to be, uh, you know, to, to be still sorted
out here, I think. Anyone else? One more? Okay, then I think I’ll thank you very much
and go back to the nice, bright Austin day. All right.

5 Comments

  • Throne and Altar

    The principle I operate on is: is this contrary to moral law? Freedom does not extend to the immoral. Even Locke makes the distinction between liberty and license.

  • Dougie Quick

    I could not even get through the introduction ….the list of books and publications of the speaker? Endless analysis of morality by someone who obviously is simply ONE more fallible person? The very idea of even listening to such a one has all the appeal of Yawn/barf …. What I think? People only love things spoken of that appeal to THEIR OWN morals and agendas …each of us alone? Each of us are uniquely unqualified to be the voice of right (and unbiased) reasoning….See now IF someone were to write about how THAT is so? I might actually want to hear more about THAT ….but the topics mentioned authored by the speaker being introduced? NOT appealing at all! …maybe I am i unfair not listening …maybe…Ill never know I suppose

  • mike thais

    "Defender's" gotta make 'best offense' asserted notion in violation of respect boundaries becomes verbal assault / attack. ..amongst persons not in agreement of how to think, and what on.

  • mike thais

    Protection of truth telling and honesty not popular…or we're in greater danger.
    Where there's no contradiction, there is no conflict, yet we've dangers also in extremes.
    Is is is is, or to me seems an absolute.. a reality of an actual.

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