Free speech is a value, not a right. Understanding this distinction sheds light on the various debates in the culture war—who social media platforms should ban, the role of the First Amendment, and cancel culture. It’s true that companies like Twitter and Facebook have the moral right to allow whoever they like on their platforms. In that sense, customers do not have some immutable right to say whatever they please, but instead must conform to the companies’ rules or risk banishment. The same holds for a suburban dinner party—the host owns the house and so determines the rules of engagement for guests. In general, it is the owner of the property who decides what is and is not acceptable speech there.
Even the First Amendment of the United States’ Constitution does not really grant its citizens a right to free speech. The Amendment is more about constraining government encroachment rather than allowing Americans to speak their mind in all places and at all times. “Congress shall make no law… abridging the freedom of speech, or of the press…” reads the text, and it’s certainly important to shackling the Leviathan. The First Amendment does not bestow a right to free speech, it prevents government from passing legislation criminalizing it. We are all still subject to the speech codes, cultural norms, and rules of conduct set forth by the owner of any shop, restaurant, hotel, company headquarters, and web platform that we wish to use. There is far more to society than government.
Private property rights define who is morally permitted to employ particular resources to their ends. This captures the intuition that you own your body and therefore have the right to “employ” it to whatever end you desire, so long as you do not violate someone else’s right to do the same. This logic extends outwards to any physical resource that we might appropriate. We need a notion of private property rights because resources are scarce—not everyone can inhabit the same parcel of land simultaneously, nor eat the same apple, nor take the same cab. The system of private property rights, which we already live by in our daily lives, is how we’ve solved the problem of dealing with a world of individual ends and finite resources.
Murray Rothbard (1926–95)
Free speech is subordinate to the private property rights of whatever resources are needed to speak in the first place. For example, the owner of Twitter has the moral right to determine what can be said on his platform. Similarly, the owner of a theater has the right to rent out his property to only scientists, if he so chooses. He also has the moral right to reject proposals by, say, pastors to rent his theater. In The Ethics of Liberty, economist Murray Rothbard summarizes: “Take… the ‘human right’ of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed… to allow him on the premises. In fact, then, there is no such thing as a separate ‘right to free speech’; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.”
Civilization is about more than rights. It is also defined by our culture—what we value, what we pursue, and how we treat dissidents, eccentrics, and other thinkers who fall outside the Overton window. Should we shame them into silence, or pretend they don’t exist, or hope that they are banned from various platforms? While we have the right to wish for their social exile, we should not do so. A culture that rejects free expression as a value is a culture without a reliable mechanism for error-correction. We can never be certain about anything, nor can we ever predict arguments that haven’t yet been conceived, written, or uttered. Arbitrary restrictions on what can be said about some topic presumes that the matter is forever settled.
The government cannot legislate cultural change. American politicians grew hip to same-sex marriage in the mid-2010s only after polls indicated that the people approved. Conversely, the war on drugs, begun by President Richard Nixon in 1971, has been a disaster by any metric in the nearly 50 years since its inception. It has failed in part because people continued to use drugs in defiance of the government’s laws. No amount of top-down legislation will improve the current status of free speech in the Western world, precarious though it may be. It is up to us to take free speech seriously, and to create a culture that cherishes it from the bottom-up.
John Stuart Mill (1806–73)
The philosopher John Stuart Mill understood the distinction between government and culture, and the relationship between both and free speech. His 1859 book On Liberty, offers a superb defense of a culture that values open-ended discussion. That governments should not jail individuals for their words is easily understood, and even those who want people banned or bullied for their views might agree with that. But restraints on governments are not enough, and Mill understood that what he called the “tyranny of the majority” could suppress individuals with minority opinions: “when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries.”
To those who wish to shame, silence, or otherwise suppress uncomfortable, unpalatable, or offensive ideas, what is our argument? First, as Mill points out, even those confident that their opinions are correct will benefit from hearing a novel counterargument. They will come to understand their own position more clearly. If an idea that has been accepted as truth never has to be defended, it will become what Mill called “dead dogma.” An idea no one is permitted to question, even if true, may as well be superstition. Second, history demonstrates that absolute certainty is impossible. We are fallible mammals, capable of improvement but never error-free nor certain of anything. Progress requires creativity—we conjecture some new idea and subject it to criticism. Therefore, any criterion by which we shun particular ideas is necessarily arbitrary, mechanistic, and anti-human.
Shaming rival opinions into silence is counterproductive, since dissidents do not actually change their minds they just retreat into the shadows. During the 2016 presidential election, we saw how cultural intolerance leads to preference falsification which in turn distorts our ability to discern what people really believe, which ideas are popular, and in which direction the political wind is really blowing. How many people are terrified, right now, to express their honest thoughts about Black Lives Matter, or Reddit’s recent purges? A mature adult does not attempt to banish those with opposing views, and is instead secure enough in his ideas to face counterarguments.
In the West, we’ve progressed towards a culture that rejects violence against peaceful people. Shared mores that enjoin us not to hit people or take their property are now so prevalent in contemporary Western culture that they can almost be taken for granted. A brief tour of the not-too-distant past reveals a much bloodier day-to-day reality. Having embraced a norm of peaceful interactions, the tolerance of ideas with which we disagree or even consider to be evil represents a further developmental step in humanity’s civilizing journey. If we do not explain why free speech is a cultural bedrock, we risk losing both free speech and peaceful engagement as a norm. After all, diplomacy and tolerance for debate are beneficial for the same reason—they are the only peaceful alternative in resolving conflicts. Without words, there are only fists. To paraphrase the late philosopher Karl Popper, we should let our ideas die in our place.
We must not forget why open-ended discussion is a pillar of civilization. Free speech is not a right, it is something to be valued. Against the rising tide of cancelation, shame, and forced platitudes, we must articulate exactly what we mean when we say that free speech is necessary. When barbarians arrive at the gates, we need every intellectual weapon we can muster to defeat them.
Logan Chipkin is a Philadelphia writer and tutor. He holds a master’s in biology and a BA in physics. His writing focuses on science, philosophy, economics, and culture. You can follow him on Twitter @ChipkinLogan.
Feature image: Still from Fahrenheit 451 (1966) directed by François Truffaut. Outlawed books are collected and burnt by firemen in Ray Bradbury’s dystopian world.
All rights are values.
Some White dudes came up with this awhile back, works for me:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
I am more of the ‘rights’ camp. Universal Human Rights. To me they are unalienable. They are always around, no matter what current ‘value’ is in vogue.
In 1829 Britain outlawed the Hindu practice of Sati. It was a value in N. India for Hindu ladies to be peer-pressured into throwing themselves on their husband’s funeral pyre. Universal Human Rights trumped local cultural values, and the Brits outlawed the practice.
Other notable examples of ‘doing the right thing’ included outlawing slavery, even though it was a “value”.
That is not at all true. It’s like saying the post office has the right to send some letters and hold other letters back. No. If you want a fair system for all, it carries everyone’s messages. That’s what equality means. And it’s what ‘common carrier’ status means. These platforms are not publishers, or they would be held liable for the content of everything they publish. They are like telephone companies. They just carry other people’s words. And they need to do it without discrimination. The sooner the law fixes this the better for all of us.
Spoken by someone who has never experienced real slavery. I am sure that those that are still be taken as slaves for the Islamic world or as sex slaves in the Western world would gladly swap their circumstance for someone with a home, family, food even if it comes with a financial debt burden.
Equating financial adversity to slavery is devaluing the evil that is slavery. Let’s try not to pollute language any more than it already is, or dilute the meaning of words that should have a powerful impact.
The issue of Twitter, Facebook, YouTube and similar can be easily dealt with and does not require any significant government intervention. The US Fair Publication Act (or similar) distinguishes between a platform and a publisher. How it needs to be enforced is the following;
A publisher has complete control over content and is therefore completely responsible for that content including being subject to libel and other legal recourses.
A platform has no control over content and is therefore has no responsibility for it.
The problem is that the big tech companies want the control but not the responsibility - a common feature of the collectivist left. The solution therefore is simple. If you exhibit ANY control over the content you are a publisher and can be held responsible for ALL of it. If you want the protection of not being held responsible for the content then you cannot exercise any control over ANY of the content which includes banning, removing or in any way inhibiting anyone’s interaction with the platform.
So Big Tech can choose - Control and Responsibility or No responsibility and No control. That would sort things out without having to get the Government to get involved.
The barbarians are already in the gates. Our intellectual weapons of reason, logic, tolerance and ‘fair-play’ failed spectacularly.
The leftists are never going to allow you to speak unless you demand it, enforce it.
They laugh at our values. They use our ‘values’ to their advantage, discarding them when it suits.
Here’s a long form article that really nails how useless our ‘values’ are at this point:
The problem is not so much about Free Speech anymore- it’s about the deliberate obscurement of truth for political ends. Kids are taught about the dangers of fascism and nazism in schools, but not once are they taught that every single attempt to institute socialism in human history has led to economic stagnation and collapse, and caused 100 million deaths in the twentieth century. Sweden, Norway and Denmark are not Socialist economies- they simply made the choice to have larger social safety nets paid for by the poor and middle classes. If that is what you want to promote as a political agenda, fine- but at least have the decency to be honest about it to the electorate.
Most of the wealthier countries around the world now have between 40% and 50% of national wealth consumed by Government. In America estimates of what the American Government spends at a Federal, State and Local level vary between 35% and 41%. It depends on what you count as Government spending. Now some might look at this figure and say “well, that’s fine- we still have plenty of room for something like universal healthcare”.
But the problem is that the American Government has already promised around $150 trillion in future spending to cover people’s Social Security and Medicare in years to come, and a huge portion of that cannot be covered by current Government revenue or future projections. It’s a problem that is in no way unique to America, and virtually every Western Government will have to grapple with shortfall of money in the public purse.
“So let’s tax rich people more” is the usual refrain. Unfortunately, if we confiscated everything billionaires owned, then we could only pay off 1/8 of all current Government borrowing which is a small sea of debt, by comparison to the vast ocean we will owe in the future. “Let’s print money- modern monetarism sounds good”. This isn’t as bad as it initially seems- it’s likely possible given the primary goal of the software our current economic model is based upon is to keep inflation low at all costs.
The problem is that the whole notion of modern monetarism is based upon the notion that releasing more money into an economy will generate more value than the money released. It usually works- but as soon as Government borrowing exceeds 90% of total national value generated within a single year, things begin to change. People stop spending money and begin to hoard it, because they are worried about all that debt. The wealthy shift their assets away from productive ventures, and into assets that are likely to hold their value, after the storm on the economic horizon has passed. Simply put, once the threshold of 90% is passed, every dollar you spend has less value than the amount of money you have to repay- it’s behavioural economics and the way people really operate in a complex society, because of human psychology.
So within this human political drama, the Conservative is always cast as mean, the bad guy and at worst venally reliant on the sponsorship of rich contributor class. In some instances it may even be true, but for many more it is deeply unfair. Sure, they like low taxes- but that is generally because they honestly believe that money spent freely in voluntary exchange is always of greater benefit to society, than money spent by Government, on a people’s behalf. In many instances it’s true, but not always.
In general, their scepticism of Government, stems from watching liberal program after liberal program fail to deliver on it’s original promise, and do little other than become an ongoing drain on the public purse. In this, they are just as prone to finding the Bad in Government, as you are the Good. The truth is that Government is neither Good or Bad inherently, but it can only be Good (other than by accident), if it is monitored to see whether it delivers on it’s promises and measured as well as humanly possible, by evidence-based systems of empirical data gathering. Anything that doesn’t work has to be ruthlessly cut- because in world where Government resources will always be limited they have to be deployed to maximise human good. Employment in public works can no longer be seen as a public good, in and of itself, because funding is simply to scarce and precious to be wasted on schemes of limited value.
In essence, it is the ethos of Government that needs to change. The liberal is like a friend telling you to engage in a little retail therapy, and the Conservative is the Credit Card company telling you you’re maxed out. Neither side is completely right. There is room for manuever- all we really need to do is go through our monthly outgoings, with an eye to ruthlessly cutting. This doesn’t mean that Government should shrink. Far from it. There are simply so many ways that we could spend that money, provided that it is used as an investment, which both raises revenue and cuts spending in the future.
Votech could be offered to the 70% of kids who will never go to university as a graduate contributions system, with interest-free loans, only repayable once a certain earnings threshold is reached. Community resources and diversion for most youthful offenders can radically cut future prison populations, when paired with a more humane and compassionate approach to proactive policing. We know it can work, because it has worked incredibly successfully in other countries.
Libertarian paternalism can work wonders with pensions and private supplementary healthcare provisions run with automatic enrolment and an opt out clause. A negative income tax paired with system of voluntary older sponsors working with the unemployed in weekly group sessions, could be used as a means to entice long term welfare recipients out of dependence with a plan B option, using a system which builds individual morale, instead of stripping it with the mindless drudge of lecturing and unsympathetic bureaucrats.
But it takes a ruthlessness that is usually only seen in commerce, where the consequences of failing to act are bankruptcy and business closure. OK, so it doesn’t have to be that bad. Public sector workers could be offered incentives in the form of bonuses for finding efficiency savings within their departments. People don’t need to be sacked, when natural wastage accounts for some headcount reductions, and internal re-allocations to new public ventures can account for more. Comprehensive psychometric tests completed online can help public workers to find new roles they might be good at, as a prequel to rolling a similar system out to the general public.
Neither side wants to engage on this heterodox approach, because they are both invested in their ideology of Government. One side wants more, the other side wants less and with such binary choices, there is little room for a nuanced view that demands it simply be more efficient and effective at doing what it promises it will do.
The tragedy is that this sort of practice is commonplace- but only in those areas of Government where a failure to rationally resource, has consequences which are too awful to bear. If police don’t specifically target their resources to areas where crime is the highest, then people will die as result. In every universal healthcare system in the world, cancer and heart problems are prioritised- with those needing hip replacements often dying by the time they reach the top of the waiting list or paying for a private option themselves, and often experiencing a decline in health so precipitous that surgery is no longer an option.
But nowhere is this approach uniform or even a core ethos of Government, and even the more progressive and efficient Northern Europeans have barely begun to make the cutbacks and re-allocations necessary to service their ageing populations into the future. We can’t continue to be lied to, and expect things to continue as they have in the past. The rich man simply doesn’t have enough money, for everything we want, or have even come to expect. Besides which, we want him continuing to exploit us, with shiny new things for us to buy and new and inventive ways to employ people.
The only institution that has anywhere near the money we need to run modern and efficient States is Government, and they haven’t been following the road for decades- like two parents squabbling over yesterdays dinner, whilst the kids in the back start to get worried about the truck in the distance…
No, freedom of speech is not simply a value, it is a right, one that has legal protection. A list of trials involving free speech would be too long to mention but, generally, the legal (not value) ruling by US courts is that only speech that can be deemed to cause material harm (I.e. harm to property, to reputation) can be deemed illegal (hurt feelings don’t count, unless one can show sustained harassment that was largely unavoidable).
The writer pretty much makes stuff up as he goes along. I love how free speech is demoted to a “value” but Twitter’s right to boot people off under any pretence is an apparently unassailable “moral right”. Really? Would the author use the same phrase, “moral right”, if a shop owner said “no blacks allowed”? Lots of commentators like to talk about “free trade”, but it’s a lot more complex than they realise. For example, certain famous economists like Freidrich Hayek believed a free market should be about protecting an individual’s right to economic liberty (a view I endorse). In plain terms, everyone can buy and sell, and enjoy the fruits of their labor. When a company like Google strips certain businesses of ad revenue, it blocks liberty and choice. The internet is a marketplace, and once a single or collective entity deigns who can or cannot use it, there is not a free market, but a captured market.
Michael Shermer pointed out in the latest “Skeptic” magazine issue, is that “cancelling” speakers denies other people the right to listen to those speakers. You should be dedicated to listening to those you dislike, but you cannot be forced to. However, you can exercise the right not to listen simply by not coming to the talk. The problem is, censors deny others people the right, or even (if Mill is correct) the duty, to listen to the disagreeable speaker if they so choose.
Naturally, the rights of an individual end where they begin to significantly impede on others. But, it’s so bizarre how the boundaries have been reset under social justice. For example, I’m not against hate speech provided it imposes no material threat to body or property. Obviously, I’m against hate action. Thanks to SJWs deciding “words are violence”, hate action has become “allowed”. Their logic: you hurt my feelings, I can take your job and ruin your life, you write a book I don’t like, no one can read it. The big problem with this, with people who don’t want other people to talk, is that they want a childlike existence where all they hear is reassurance. It’s not “progressive” at all, it’s refusing to grow up.
Many good arguments in this article. But the author is still wrong: free speech is a right. While we may want to parse the differences between “rights and values” I prefer that we insist on calling “rights” exactly what they are. The problem with labeling free speech a “value” is that then it can easily be replaced by other values. Rights are not so easily replaced. And values are only a few steps away from being demoted to (the worst of all possible terms…) a privilege. At some point, free speech will then only be a privilege, something which obviously no one should be allowed to enjoy.
The thing about rights for the common man is that they are incredibly hard to come by and keep… it’s best we know what they are and even more important that we guard them very, very jealously.
Exactly. The writer is a bloody fool. He thinks by calling free speech a value, it becomes a value. That is magical thinking. Also, he seems to believe in property rights, but does not understand that property rights begin not with a business or a home but with your body and your opinion. That is property too. Again, if the state does not afford legal protection to your opinion or your body, why then would it extend legal protection to you economically? Unless, what the writer implies, is that a business has rights but an individual only gets values. He likes to use the term “moral right” there. To me that is a little like adding the word “social” to “justice”.
Our Lefties can’t define the free market correctly to save their lives.
This article was really a very poor one. It’s not at the level of Quillette and I’m going to have to call it amateurish.
There’s a monumental and fundamental misunderstanding that is propagated in this article and also by so many who repeat the whole mantra of “but the constitution doesn’t make free speech a right” etc.
In fact, it’s a combination of three fundamental errors.
They think that because (their interpretation of) the constitution doesn’t say X that X isn’t given in other parts of law. This is making a mistake on the purpose of the constitution. In fact, the legal rights to free speech are dispersed in various parts of law.
They think that only what is statute law is law. This means, they falsely imagine that only those statements that are in codified form define the law. This is a huge mistake as it is imagining that the US is a code law country.
Instead, the anglosphere countries (including the US) are common law states, where much of the law is not in code form. Instead, it is in legal precedents. Many of these will touch upon issues of free speech and many of them enshrine freedom of speech to certain degrees.
The difficulty for armchair commentators like ourselves, and the author of the article included, is that we aren’t going to bother to go through centuries of legal precedents to figure out the real state of the law on free speech. We have to put our trust in lawyers and judges on this matter.
This is an example of the “German” fallacy - assuming that only those things that are expressly allowed are allowed, instead of going by the common law principle of “only those things that are expressly forbidden are forbidden”.
I’ll add a 4th mistake, which is an implicit one that really grates me - the author of the article thinks that the whole goddamn world revolves only around the US, as though the US interpretation of free speech law is the only one that matters. There’s a lot of other countries out there that have also grappled with these problems and have also worthy studies. So americans, broaden your minds! A very good place to start is to looks at anti-blasphemy laws that were adopted in many countries, e.g. Scotland, in the 1700s
It would be good if Quillette could get an article by an actual legal practitioner on free speech law, preferably non US - you know, someone who has actually done some real homework on the huge bodies of case law.
I’m happy to bet very good money that they would tell us that freedom of speech is broadly a right, and each common law nation does enshrine it as a right through some statutes on fundamentals that are there guarantee the basics (freedom of religion, of the press, etc) but then there is a huge amount of case law that is more relevant to private parties to be factored in that will involve a large collection of additional rights and also limitations.
This article struck me as just an armchair opinion with no real research.
My own view is that Freedom of Speech is a combination of both a right and a value but also a duty. It’s a moral duty to uphold your fellow citizens right to free speech. So when you’re facing a mob calling for you to cancel one of your employees because he or she upset some of their poor feelings, you ought to act as though you were the victim of the hate mob. So tell them their a bunch of fucking totalitarian crybabies.
You are exactly right about the right.
@RayAndrews would be very surprised to find that I have always treated my employees very well. I do this because it pleases me. But if some spotty Herbert tells me that it is somehow my duty to do it, because the workers are the true noble beings of this world, that’s another matter. I find that the people who want to force you to make ‘‘the workers’’ happy have a much more rigid and doctrinal version of ‘‘happiness’’ than I do. Their definition always seems to involve giving half-educated morons power to boss their betters about.