Tara Henley’s recent podcast episode with Danish free speech advocate Jacob Mchangama was fascinating and encouraging. A quote from Orwell came up that I hadn’t heard before, and it’s worth emphasizing:
The relative freedom which we enjoy depends on public opinion. The law is no protection. Governments make laws, but whether they are carried out, and how the police behave, depends on the general temper in the country. If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.
The fact that free speech is not just a legal matter is a vitally important one, because those who restrict free speech to the minimum legal interpretation are actively undermining—wittingly or not—the culture that actual free speech depends on.
Mchangama brought up the example of Athens, which enjoyed a cultural free speech called parrhesia which, Mchangama said, “means something like fearless or uninhibited speech.” Although there was no legal basis for parrhesia, it “permeated the Athenian democracy” and let to a “culture of tolerance”.
Clearly a culture of tolerance is not sufficient. Just ask Socrates. But at the same time legal free speech rights aren’t sufficient, either. The historical examples are too numerous to cite, especially in repressive 20th century regimes that often paid lip service to human rights (including the late-stage USSR). The laws were there on paper, but a lot of good it did anyone.
Mchangama went on to say that “if people lose faith in free speech and become more intolerant than laws will reflect that change and become more intolerant.” So fostering this culture is vital both to preserve the rights on paper and to ensure those legal rights are actually honored in the real world. So, “how do we foster a culture of free speech?” Mchangama asked. His response, in part:
It is ultimately down to each one of us. So those of us who believe in free speech have a responsibility of making the case for free speech to others, and do it in an uncondescending way, and also one which doesn’t just rely on calling people who want to restrict free speech fascists or totalitarians… [We must] take seriously the concerns of those who are worried about the ugly sides and harmful sides of free speech.
This is a tough balance to strike, but I want to do my part. So let me make two points.
First, the popular line of argument that dismisses anything that’s not a technical violation of the First Amendment is unhelpful. Just as an example, here’s an XKCD cartoon (and I’m usually a huge fan) to show what I mean.
The problem with this kind of free speech minimalism is that its intrinsically unstable. If you support free speech but only legally, then you don’t really support free speech at all. Wittingly or not, you are adopting an anti-free speech bias. Because, as Orwell and Mchangama observe, a legal free speech right without accompanying support is a paper tiger with a short life span.
Second, the question isn’t binary. It’s not about whether we should have free speech. It’s about the boundaries of tolerance—legal and cultural—for unpopular speech. To this end, Mchangama decries use of pejoratives like “social justice warrior” for those who want to draw a tighter boundary around what speech is legally and culturally permissible.
I’ve used the SJW term a lot. You can find plenty of instances of it here on this blog. I’ve always been a little uncomfortable with it because I don’t want to use a pejorative, but I wasn’t sure how else to refer to adherents of the post-liberal “successor ideology.”
Maybe that decision to use SJW was understandable, but I’m rethinking it. Either way, the reality is that I’ve imbibed at least some of the tribal animus that comes with the use of the term. I have—again, you can probably find old examples here on this blog—characterized my political opponents by their most extreme examples rather than by the moderate and reasonable folks who have genuine concerns about (in this context) how free speech can negatively impact minorities.
I am not changing my position on free speech. Like Mchangama, I strongly believe that the benefits of a broadly tolerant free speech culture greatly outweigh the costs for the disempowered. But that doesn’t mean there are no costs.
Admitting that it’s a tradeoff, that critics have legitimate concerns, and that the question isn’t binary will—I hope—make me more persuasive as a free speech advocate. Because I really do believe that a thriving culture of free speech is vitally important for the health of liberal democracies and everyone who lives within them. I do not want people to lose that faith.